Law Commons^™

Adjudication As A Private Good: A Comment, Paul D. Carrington

Faculty Scholarship

Comment on William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. Legal Stud. 235 (1979).

‘Oath-Functions’ And The ‘Oath Process’ In The Civil And Criminal Law Of The Ancient Near East, Donald Magnetti

Faculty Scholarship

No abstract provided.

The Recurring Question Of The “Limited” Constitutional Convention, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.

Passage Through International Straits: A Right Preserved In The Third United Nations Conference On The Law Of The Sea, Horace B. Robertson

Faculty Scholarship

In 1971, when the negotiations leading to the development of a new treaty on the law of the sea were in their earliest stages, the head of the U.S. delegation, John R. Stevenson, declared that freedom of passage through international straits was an essential element of any agreement that would be acceptable to the United States.

The Proposed Twenty-Seventh Amendment: A Brief, Supportive Comment, William W. Van Alstyne

Faculty Scholarship

When the unratified Constitution of 1787 came before the state conventions, one controversy more than any other nearly led to its rejection.

Merit Selection And Politics: Choosing A Judge Of The United States Court Of Appeals For The Fourth Circuit, Peter G. Fish

Faculty Scholarship

With lightning rapidity the Senate confirmed on August 11, 1978, President Carter's July 20th nomination of J. Dickson Phillips as Judge of the United States Court of Appeals for the Fourth Circuit.

Civil Litigation And Jura Novit Curia, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Workers' Compensation Insurance Carrier As Third Party Tortfeasor, Barbara P. Blumenfeld

Faculty Scholarship

At the time workers' compensation was conceived, the theory of liability without fault was a new concept. The original acts were, therefore, drafted cautiously. The statutes had either a limited application or were noncompulsory in nature.20 Although a common law action against an employer was eliminated, the statutes generally preserved some form of action against a third party tortfeasor under the common law.

This case note asks the legislature to revise the Michigan Workers' Compensation Act so to explicitly define the insurer's relationship to the employer insofar as immunity is concerned.

Torts 1978 Survey Of New York Law: Part Five: Miscellaneous, Michael M. Martin

Faculty Scholarship

The principal torts decisions this Survey year, especially in the products liability area, seemed to leave as many questions unanswered as they resolved. The Court of Appeals held that a noncontracting user's claim for injuries from a defective product sounded in tort for limitations purposes, but the Court did not decide what limitation period would be applicable if a statutory breach of warranty claim were also asserted. The contributory negligence defense to a strict products liability claim was upheld by a reference to the appellate division's opinion in a second-collision case. The analytically suspect "sales"-"service" distinction was reaffirmed in an …

Contractual Agreements To Arbitrate Disputes: Waiver Of The Right To Compel Arbitration, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

The Impact Of The Texas Medical Liability And Insurance Improvement Act On Informed Consent Recovery In Medical Malpractice Litigation, Frank W. Elliott

Faculty Scholarship

This article describes changes to the Texas Medical Liability and Insurance Improvement Act.

Discrimination As A Field Of Law, Arthur Larson

Faculty Scholarship

No abstract provided.

The U.S. Fishery Conservation And Management Act 1976 - A Plan For Diplomatic Action, Kazimierz Grzybowski

Faculty Scholarship

No abstract provided.

Fiscal Jurisdiction And Accrual Basis Taxation: Lifting The Corporate Veil To Tax Foreign Company Profits, William W. Park

Faculty Scholarship

"No rules of international law exist to limit the extent of any country's tax jurisdiction." Although not yet locus classicus, this assertion summarizes a view that finds favor among academic and practicing lawyers. Even if it is admitted that a relevant nexus must exist between the taxing sovereign and the person, property, or income to be taxed, the competing jurisdictional claims of other states are seldom viewed as imposing limits on national competence. This Article will examine the conflicts among rival assertions of fiscal jurisdiction that result from attempts of capital-exporting states to tax the undistributed income of foreign companies.

An Assessment Of The Use Of Cost-Benefit Analysis In Regulatory Agency Decision Making, Michael S. Baram

Faculty Scholarship

CONSIDERABLE dissatisfaction has been expressed with the process and results of regulatory agency decision making. Recommendations have been made that the Federal agencies employ rational, "balancing" approaches such as cost-benefit analysis in conducting their standard setting and adjudicatory functions.

This paper examines some current uses of cost-benefit analysis by several agencies in their decision-making processes, and identifies and discusses apparent limitations.

Bakke As Precedent: Does Mr. Justice Powell Have A Theory, Vincent A. Blasi

Faculty Scholarship

What does it all mean? The Supreme Court's decision in Regents of the University of California v. Bakke invites assessment at many levels. Was it really a "Solomonic compromise" worthy of our constitutional tradition, as some prominent scholars have suggested? Or does the decision represent, as I believe it does, a disturbing failure by the Court to discharge its responsibility to give coherent, practical meaning to our most important constitutional ideals? Does the uncharacteristically opaque and simplistic opinion of Justice Stevens mask deep divisions and ambivalences among the four justices who subscribed to it? Can there be any validity to …

The "Stationarity" Of Shadow Prices Of Factors In Project Evaluation, With And Without Distortions, Jagdish N. Bhagwati, Henry Wan Jr.

Faculty Scholarship

Until recently, the literature on cost-benefit analysis for projects has been largely within the domain of research on "public monopoly," literature currently reviewed by Jacques Lesourne, (ch. 3), and the work of public finance theorists as typified in the celebrated practical work of Ian Little and James Mirrlees in their Manual, and in the recent theoretical contribution of Peter Diamond and Mirrlees. International trade theorists have, however, turned now to the analysis of these problems, starting with the early work of Vijay Joshi and Deepak Lai, then that of W. M. Corden, and most recently culminating in the contributions of …

The Right To Life, George P. Fletcher

Faculty Scholarship

In the theory of rights we repeatedly encounter the problem of reconciling someone's having a right with his properly suffering damage to the interest protected by the right. In the case of right to life, we have to assess numerous cases in which individuals are killed or allowed to die, and we wish nonetheless to affirm their right to life. These cases include killing an aggressor in self-defense, accidental homicide, terminating life-sustaining therapy, and capital punishment.

My program in this Article is to provide an account of how it is that those with a right to life may nonetheless be …

Confessions Of A Horizontalist: A Dialogue On The First Amendment, Larry Yackle

Faculty Scholarship

It is hardly surprising that the Supreme Court has never developed a satisfying theory of the first amendment. Free speech and press problems are many and varied, demanding the most delicate balance of interests in order to preserve a system of freedom of expression and at the same time afford proper respect for competing governmental objectives. Doctrine adapted to one medium of expression may not sit well when applied to others. With the passage of time, changes in technology, economic conditions, and the very nature of expression tend to outstrip the Court's ability to keep pace with doctrinal innovations. There …

Taking Supreme Court Opinions Seriously, Henry Paul Monaghan

Faculty Scholarship

Taking Supreme Court opinions seriously emerged as a topic of discussion at a lunch I attended last year with several Supreme Court law clerks. Somehow we came round to a particular three-judge district court case which I confidently opined was "certain" to be reversed on the basis of principles announced in prior opinions. The clerks were models of politeness and circumspection; never once did they even intimate that the judgment would (by divided vote) be affirmed. But shortly after I had announced my views of that case, one of the clerks began to prod me, asking whether I simply took …

The Law And Economics Of Vertical Restrictions: A Relational Perspective, Victor P. Goldberg

Faculty Scholarship

Vertical restrictions between franchisors and their dealers have long been a thorny problem in antitrust law. Richard Posner's characterization of the case law as a "fiasco" and a "doctrinal shambles" is echoed by many other commentators. Perhaps partly because of the intellectual confusion in the area, the Supreme Court recently made an apparently sharp change in direction. In Continental T.V., Inc. v. GTE Sylvania Inc. the Court reversed the decade-old Schwinn per se doctrine, holding that at least some vertical restrictions deserve a rule of reason test. Whether this decision will prove a more durable precedent than Schwinn remains …

Enforcing Promises: An Examination Of The Basis Of Contract, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

The obligation to keep promises is a commonly acknowledged moral duty. Yet not all promises – however solemnly vowed – are enforceable at law. Why are some promises legally binding and others not? Orthodox doctrinal categories provide only modest assistance in answering this persistent question. Conventional analysis, for example, has distinguished promises made in exchange for a return promise or performance from nonreciprocal promises. Indeed, common law "bargain theory" is classically simple: bargained-for promises are presumptively enforceable; nonreciprocal promises are presumptively unenforceable. But this disarmingly simple theory has never mirrored reality. Contract law has ventured far beyond such narrow limitations, …

Should Intolerable Prison Conditions Generate A Justification Or An Excuse For Escape?, George P. Fletcher

Faculty Scholarship

In the last five years, appellate courts have responded sympathetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. Lovercamp began the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape.

The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal …

The Unresolved Problems Of Reverse Discrimination, Kent Greenawalt

Faculty Scholarship

The current widespread use of remedial affirmative action programs makes the legitimacy of reverse discrimination a pragmatic social concern. That alone, however, would not explain the intense interest generated by Regents of the University of California v. Bakke. The question posed in the case compels our attention because it forces a choice between two values that occupy a high place in the liberal conception of justice and claim substantial support in the equal protection clause. On the one hand, justice requires that groups that have previously suffered gross discrimination be given truly equal opportunity in American life; on the other, …

Professor Jones And The Constitution, Henry Paul Monaghan

Faculty Scholarship

Professor Harry Jones's elegant and stimulating Waterman lectures begin on a salutary note. Professor Jones rightly reminds us that, first and foremost, a constitution is not exclusively or primarily a limitation on the exercise of political power, but rather is a charter for its exercise. Accordingly, to view the Constitution as "all brakes and no engine" suggests a serious and fundamental myopia, albeit an understandable one given the popular preoccupation with the Supreme Court's role in vindicating guarantees of civil liberty. But that preoccupation, Professor Jones notes, does more than distort the meaning of the Constitution; it ignores an historically …

Measuring Sellers' Damages: The Lost-Profits Puzzle, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

A buyer repudiates a fixed-price contract to purchase goods, and the seller sues for damages. How should a court measure the seller's loss? The answer seems simple: The seller should be awarded damages sufficient to place it in the same economic position it would have enjoyed had the buyer performed the contract. But the seductive conceptual simplicity of the compensation principle disguises substantial practical problems in measuring seller's damages.

Contract law has traditionally minimized measurement difficulties by basing damages in most cases on the difference between the contract price and market value of the repudiated goods. The common law courts …

Reconciling Quinlan And Saikewicz: Decision Making For The Terminally Ill Incompetent, George J. Annas

Faculty Scholarship

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals-sometimes with the assistance of the patient's family-on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial …