Law Commons^™

Water Pollution And The Public Trust Doctrine, Ralph W. Johnson

Articles

Nonpoint pollution from irrigation return flows has become a serious national problem. Even the extraction of water for irrigation and other purposes causes pollution by reducing the assimilative capacity of the source stream or lake. Such pollution can be regulated either by the courts or the legislatures under the public trust doctrine, which antedates the prior appropriation system, and which protects fisheries and water quality. Alternatively, this pollution can be controlled under the state's police powers. The "takings" issue should not be troublesome because no one, not even prior appropriators, has or can acquire a legal right to pollute public …

Summary Of Tokugawa Criminal Justice, Daniel H. Foote

Articles

The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …

Nonlawyers In The Business Of Law: Does The One Who Has The Gold Really Make The Rules?, Thomas R. Andrews

Articles

For at least sixty years nonlawyers have been prohibited from offering their nonlegal talents in a business combination with lawyers practicing law. Moreover, when the ABA's new model rules were adopted in 1983, the ABA considered carefully but rejected a proposal that would have lifted the traditional ban on nonlawyer ownership of a law business. Nonetheless, the point of each article was that the relevant restrictions in the ethical rules are on their way out.

Commentators have given considerable attention to the unauthorized practice of law by nonlawyers, and to the offering of legal services by nonprofit institutions. The focus …

The Lesson Of The Red Squirrel: Consensus And Betrayal In The Environmental Statutes, William H. Rodgers, Jr.

Articles

The subjects of legislation and legislative change are undergoing a revival of sorts in United States' law schools. The academic community has offered a variety of theoretical visions on the nature of legislation—purposive and rational, irrational and political, the accidental outcome of competing interests, the imperfect product of high philosophy; the legislative process—formal and ritualistic, markets and auctions, plots and cabals, or publicregarding negotiations; and the individual legislators themselves—ritual players, auctioneers, maximizers of political gain, profiteers, and philosopher kings in shiny suits.

This author's personal approach to legal affairs of this sort is to draw on the laws of biology …

Judges Against Juries—Appellate Review Of Federal Civil Jury Verdicts, Eric Schnapper

Articles

This Article seeks to assess the treatment of civil jury verdicts by the federal courts of appeals during the two decades in which the Supreme Court has refused to scrutinize the actions of the circuit courts. Part I summarizes the manner in which the Supreme Court, prior to 1968, aggressively enforced the seventh amendment. Part II, focusing on a one-year period between the fall of 1984 and the fall of 1985, describes the actions of the courts of appeals in resolving the 208 reported cases in which a party challenged the sufficiency of the evidence to support a jury verdict. …

Statutory Damage Caps Are An Incomplete Reform: A Proposal For Attorney Fee Shifting In Tort Actions, Gregory A. Hicks

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The premise of this article is that the currently unsettled status of noneconomic damage awards offers an opportunity to reexamine the function of such awards, and to move tort law in the direction of more stable and rational remedies, something that could not be achieved either under recently adopted damage cap statutes or through the reinstatement of unrestricted compensation of noneconomic losses.

This article has two parts. In the first part, the ambiguous role of noneconomic damages, that is, their function as makeweight compensation for noncompensable litigation expenses and as compensation for real intangible injuries, is described. This ambiguity has …

Diagnosis Of The Current Code Of Criminal Procedure, Daniel H. Foote

Articles

Approximately 35 years have passed since the current Code of Criminal Procedure went into effect, and today the manner in which that Code is interpreted and applied appears nearly stable. In truth, for most of the provisions and systems under the current Code about which there had been many questions of interpretation and application (e.g., interpretation of the provisions concerning hearsay evidence, discovery, exclusion of illegally-obtained evidence, and abuse of the authority to prosecute), some sort of conclusion (ichid no ketsuron) has been reached. In that sense, matters have "stabilized." However, in my view much more deep-seated problems remain unresolved. …

The Lesson Of The Owl And The Crows: The Role Of Deception In The Evolution Of The Environmental Statutes, William H. Rodgers, Jr.

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In this world of strategies and counterstrategies, the advantages of the good fake are not to be overlooked. Fakery is an indelible part of the landscape in settings where we readily accept the gaming metaphor—sporting events are the obvious examples. But I wish to emphasize how fakery and deception can play an important role in legal interactions as well, particularly in the writing of the environmental statutes. Environmental lawyers often are fond of borrowing examples from natural history to illustrate propositions of law. There is more to this practice than habit, it seems to me, because the natural laws of …

"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper

Articles

Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.

Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that …

Congressional Abrogation Of Indian Treaties: Reevaluation And Reform, Michael Townsend

Articles

The treaties between the United States and the Indians constitute a critical recognition and guarantee of Indian rights. They envision a "measured separatism"' for an important minority that is determined to maintain a distinct cultural and political identity.' Non-treaty rights are fragile: The Supreme Court has held that Indians are not citizens within the meaning of the Fourteenth Amendment,' and that Congress has "plenary power" over Indian affairs by virtue of its guardianship over their interests. Moreover, the United States has ended the formal negotiation process with the Indians, and apparently no further treaties will be concluded. Thus, Congress' power …