Law Commons^™

State-Interest Analysis And The Channelling Function In Family Law, Carl E. Schneider

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I want to develop some themes I advanced in my article entitled State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social issues. In that article I noted that while courts and commentators have lavished effort on the fundamental-rights side of privacy law, they have scanted the state-interest side, thereby producing crucial weaknesses in that law. I felt that state~interest discussions in privacy cases often seemed to me unsatisfying. This is an attempt to see why. A major difficulty is that states tend to advance and courts tend to accept quite narrow specifications of a ...

The Porcupine's Dilemma: Strategic And Psychological Uncertainty In The Face Of Global Warming, William H. Rodgers, Jr.

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No abstract provided.

The Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal

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The public trust doctrine is an ancient doctrine that has recently emerged as a powerful tool to protect the public interest in tidelands and shorelands. Created and developed by the judiciary, the doctrine's principles have found their way into several of Washington's regulatory statutes, such as the Shoreline Management Act and the Aquatic Lands Act. This Article traces the development of the doctrine in Washington, and explains the relation between the state's police power and the public trust doctrine. This Article also sets forth the current contours of the public trust doctrine in Washington, and charts potential ...

Bioethics And The Family: The Cautionary View From Family Law, Carl E. Schneider

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For many years, the field of bioethics has been specially concerned with how the authority to make medical decisions should be allocated between doctor and patient. Today the patient's power-indeed, the patient's right-is widely acknowledged, at least in principle. But this development can hardly be the last word in our thinking about how medical decisions should be made. For one thing, sometimes patients cannot speak for themselves. For another, patients· make medical decisions in contexts that significantly include more participants than just the patient and doctor. Now, as this conference demonstrates, bioethics is beginning to ask what role ...

Fifth Amendment Takings Implications Of The 1990 Native American Graves Protection And Repatriation Act, Ralph W. Johnson, Sharon I. Haensly

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In November 1990, Congress passed the Native American Graves Protection and Repatriation Act ("NAGPRA"). NAGPRA provides for the protection and disposition of Native American cultural items discovered on federal or tribal lands after NAGPRA's effective date. NAGPRA also addresses disposition of those objects currently held or controlled by federal agencies and museums. NAGPRA represents Congress' attempt to resolve years of debate between tribes, archaeologists, and museums. Like any legislative pronouncement, however, Congress left key issues to agencies and courts to resolve. This article focuses upon one such area, namely, Fifth Amendment takings questions that may arise when tribes or ...

The Channelling Function In Family Law, Carl E. Schneider

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On an occasion such as this, we are called to step back from our daily work to seek what Justice Holmes called a "liberal view" of our subject. Today, I propose to do so by exploring a function of family law that I believe is basic, that underlies much of family law, that resonates with the deepest purposes of culture but that is rarely addressed expressly-namely, what I call the "channelling function." As I will soon explain at length, in the channelling function the law recruits, builds, shapes, sustains; and promotes social institutions. My exploration of this topic will have ...

A Superfund Trivia Test: A Comment On The Complexity Of Environmental Laws, William H. Rodgers, Jr.

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Professor Rodgers examines the reasons for the American obsession with trivia. While unable to determine the cause of the obsession, he does provide some insight on the usefulness and need for the information in the study of environmental law.

Extending The New Patent Misuse Limitation To Copyright: Lasercomb America, Inc. V. Reynolds, Toshiko Takenaka

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This Article examines the decisional history that shaped the misuse doctrine and the interplay between the misuse defense and antitrust liability in patent and copyright infringement litigation. In particular, by examining the public interest and policy considerations underlying patent and antitrust laws, this Article compares and evaluates the new view that misuse must be analyzed by the conventional antitrust theories expressed by Judge Posner in USM Corp. v. SPS Technologies Inc. and the traditional view that was derived from the equity doctrine expressed in Morton Salt v. G.S. Suppiger.

Furthermore, this Article reviews the legislative history and the impact ...

Introduction: The Bounds Of Advocacy, Robert H. Aronson

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I was asked, as Reporter for the American Academy of Matrimonial Lawyers' Bounds of Advocacy, to provide an Introduction to the substantive issues discussed by members of the Committee in succeeding articles. This article will therefore "set the stage" by indicating the need for the Bounds of Advocacy, the charge to the Committee, the process by which the Standards and Comments were drafted, re-drafted, and then re-drafted again, and the appropriate scope, purpose and use of the Standards and Comments.

Prior Appropriation And The Property Clause: A Dialogue Of Accommodation, Dale Goble

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No abstract provided.

Of Wolves And Welfare Ranching, Dale Goble

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The Revised Uniform Partnership Act: Some Comments On The Latest Draft Of Rupa, J. Dennis Hynes

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A Mirror For The Magistrate, Paul Campos Ed.

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Unfocused Governmental Interests, Robert F. Nagel

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The Thomas Hearings: Watching Ourselves, Robert F. Nagel

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Coordinating Judicial Review In Administrative Law, Harold H. Bruff

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1992 Criminal Law Legislative Update, H. Patrick Furman

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Post-Modern Hearsay Reform: The Importance Of Complexity, Christopher B. Mueller

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Writing For Judges, Pierre Schlag

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Response, Pre-Figuration And Evaluation, Pierre Schlag

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In this response to Professor Rubin, Professor Schlag argues that a prescriptive theory of evaluation does not free an evaluator from the bias inherent in his own pre-figurations. On the contrary, the belief that better evaluative criteria will advance the cause of fairer evaluation is itself an effect of flawed and unrationalized pre-figurations of conventional legal thought. Professor Schlag argues that the evaluation question and its attendant disputes arise from a more significant development--the unraveling of the dominant paradigm of legal thought, the decomposition of normative legal thought.

Tax Policy And Panda Bears, Douglas A. Kahn, Jeffrey S. Lehman

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In this article. Professors Kahn and Lehman argue that the concept of tax expenditure is flawed as a tool for measuring the propriety of tax provisions. It assumes the existence of on true and correct standard of federal income taxation that applies to all circumstances. To make that a assumption, the proponents of the concept implicitly make a particular moral claim about the relative importance of a wide range of values, including efficiency, consumption/savings neutrality, privacy, distributional equity, administrabiliy, charity, and pragmatism. They then measure a tax provision's "normalcy" exclusively by how it conforms to their Platonic concept ...

The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner

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Law governing transfers of family property has long struggled with questions of survivorship in their many and varied forms. Important results can and regularly do turn on how such issues are resolved.

Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman

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The invitation to respond in these pages to Gary Lawson's very interesting article, Proving the Law, was tempting enough. But what made it irresistible was Professor Lawson's comment that he is "addressing, with a brevity that borders on the irresponsible, subjects well beyond [his] depth." Now, that's the kind of debate I really like. Let me jump right in. A principal question raised by Lawson, which I find quite interesting, may be phrased in general, and purposefully ambiguous, terms as follows: Before an actor treats a proposition as a valid2 proposition of law, what standard of persuasion ...

Corporate Law And The Longterm Shareholder Model Of Corporate Governance, John H. Matheson, Brent A. Olson

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The key to effective corporate accountability today appears to be the existence of a class of "permanent" owners, holding approximately one-quarter of the outstanding equity, who have an incentive to monitor the operations of the corporation. This is essentially the system in Germany, Britain, and Japan. . . . In the United States, encouraging a pattern of domestic institutional ownership will be a way of ensuring the continuance of effective governance. The challenge, then, for the United States is to identify its "permanent" shareholder institutions and to ensure that they have the incentive and ability to perform the monitoring function. As recently as ...

The Forty-Third Session Of The Un Sub-Commission On Prevention Of Discrimination And Protection Of Minorities: The Sub-Commission Under Scrutiny, Karen Reierson, David Weissbrodt

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Throughout 1988, the United Nations celebrated the fortieth anniversary of its seminal human rights instrument, the Universal Declaration of Human Rights.' At its August 1988 session the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities2 (hereinafter the Sub- Commission) noted a similar milestone in its history; it met for the fortieth time since its creation in 1947. While the fortieth anniversary of the Dec- laration has inspired self-congratulatory activities throughout the United Nations, the 1988 session of the Sub-Commission was marked more by self- evaluation. The Sub-Commission has been engaged in a process of taking stock of ...

Gao Report Confirms Failure Of U.S. Guidelines, Michael Tonry

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Salvaging The Sentencing Guidelines In Seven Easy Steps, Michael Tonry

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Light Thoughts And Night Thoughts On The American Family, Judith T. Younger

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Mandatory Penalties, Michael Tonry

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To many public officials, promotion and enactment of mandatory penalty laws are important symbols of their concern for public safety and citizens' fear of crime. In practice, mandatory minimum-penalty laws accomplish few of their stated objectives and produce unwanted consequences. Their deterrent effects range from nonexistent to short-lived. When they call for short mandatory prison terms for serious crimes, they are often irrelevant because longer sentences are generally imposed. When they mandate longer terms (five, ten, twenty years), they are often circumvented by lawyers and judges. They reduce defendants' incentives to plead guilty, reduce guilty plea rates, and lengthen case ...

The Death Of The Employer: Image, Text, And Title Vii, D. Marvin Jones

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No abstract provided.