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Agency And Partnership: A Study Of Breach Of Promise Plaintiffs, Mary I. Coombs

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No abstract provided.

The Virtues Of A Procedural View Of Innocence--A Response To Professor Schwartz, Scott E. Sundby

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No abstract provided.

Is There An Unconstitutional Conditions Doctrine?, Cass R. Sunstein

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No abstract provided.

On The Costs And Benefits Of Aggressive Judicial Review Of Agency Action, Cass R. Sunstein

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No abstract provided.

Administrative Law Symposium: Question & Answer With Professors Elliott, Strauss, And Sunstein, Cass R. Sunstein, Donald Ellicott, Dick Pierce, Peter L. Strauss

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No abstract provided.

Politics, Differences And Economic Rights, Mary E. Becker

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An Essay In Separation Of Powers: Some Early Versions And Practices, Gerhard Casper

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Unconstitutional Conditions: Unrecognized Implications For The Establishment Clause, Michael W. Mcconnell

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One great advantage of a general theory of unconstitutional conditions is that it makes it more difficult for courts to disguise their antipathy or indifference toward the exercise of particular constitutional rights by manipulating undefined notions of "coercion" and "subsidy." The Supreme Court has held that the government may not deny benefits to a person who is out of work for religious reasons;¹ but it may deny benefits to those who lose work because of pregnancy ² or participation in a labor dispute.³ It has held that government subsidies may (and in some instances must) be denied to …

The Religion Clauses Of The First Amendment: Where Is The Supreme Court Heading?, Michael W. Mcconnell

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For almost a decade observers have predicted that the Supreme Court would reconsider its approach to interpreting the religion clauses of the first amendment. For some, this was an outcome to be feared; for others, it was to be welcomed. Optimist and pessimist alike, the Court has repeatedly proven them wrong. Once again, the Court appears on the verge of change. Maybe this time it will come to pass.

If doctrinal confusion and incoherence are predictors of doctrinal change, then change is surely on the way. Consider two recent decisions. According to the Supreme Court, the Constitution permits the State …

The Right To Counsel In Juvenile Court: An Empirical Study Of When Lawyers Appear And The Difference They Make, Barry C. Feld

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No abstract provided.

Bad Law Makes Hard Cases: Reflections On Teen-Aged Axe-Murderers, Judicial Activism, And Legislative Default, Barry C. Feld

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Waiver legislation in Minnesota, as in most other States, typically requires juvenile court judges to make individualized determinations as to a juvenile's amenability to treatment and danger to society as the basis for deciding whether to transfer the juvenile to adult court for disposition. Disposition in adult court allows for a more severe sanction than that permitted under the maximum sentence that can be dispensed in juvenile court. The difficulty and disparity in applying this waiver law lies in the discretion given to juvenile justice judges and the diverse criteria applied in judicial decisionmaking, both in the juvenile court and …

Is Abandoning State Action Asking Too Much Of The Constitution, Scott E. Sundby

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The Crisis Of Private Law Is Not An Ideal Situation, Kenneth M. Casebeer

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The High Seas And The International Seabed Area, Bernard H. Oxman

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Drafting Wagner's Act: Leon Keyserling And The Precommittee Drafts Of The Labor Disputes Act And The National Labor Relations Act, Kenneth M. Casebeer

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This Article analyzes the development of the National Labor Relations Act through the drafts of the original Act. The author traces the evolution of Senator Wagner's ideas through numerous policy and political battles to the passage of the NLRA in 1935. The author explores the development of the drafts and the historical context surrounding their creation to reveal the social theory of the drafters and illuminate previously unexplored undercurrents in the text of the Act itself. The author, through this novel approach to the NLRA, sets up a new way to view the 1935 Act, and evaluates subsequent amendments and …

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

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Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,' with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community …

Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black

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As Solicitor General of the United States, Charles Fried, like any good advocate, was often in the position of attempting to generate broad holdings from relatively narrow and particularistic Supreme Court decisions. This was especially true in affirmative action cases. There, the Department of Justice argued that cautious precedents actually stood for the broad proposition that measures designed to put members of disadvantaged groups on a plane of equality should, for constitutional purposes, be treated the same as measures intended to stigmatize or subordinate them. The Supreme Court, however, has consistently rejected this reading of its precedents and the broad …

A Skeptical Look At Contemporary Republicanism, Terrance Sandalow

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A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …

Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan

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Joseph Raz's The Morality of Freedom1 is full of subtle, original, and thought provoking arguments. It also manifests abundantly Raz's philosophical good sense and sensitivity to the complexities of the moral life. These are reasons enough to class it with the handful of genuinely important books whose appearance in the last two decades has constituted a renaissance in political philosophy. But in my opinion, Raz has another, and even stronger claim on our attention: He comes closer to the truth about political morality than anyone has for nearly a century. (Possibly much longer, but we need not attempt to decide …

Copyright Legislation And Technological Change, Jessica D. Litman

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Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …

Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar

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Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …

Educational Debts And The Worsening Position Of Small-Firm, Government, And Legal-Services Lawyers, David L. Chambers

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Law school operating costs are up. Tuitions are up. The debts of law students are up. What is happening to the students who have borrowed large sums? Are their debts affecting their decisions about the jobs to seek? Once in practice, are they significantly affecting the standard of living they can afford to maintain? What, in particular, is the effect of debts on those who enter-or contemplate entering-small firms, government, legal services, and "public interest" work where salaries are lower than in most other settings in which lawyers work? In the preceding essay, Jack Kramer has performed another extremely valuable …

General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

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(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987)

At-Will Employment: An Overview, Theodore J. St. Antoine

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The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine.

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 …

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 …

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

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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 …

From The Shoulders Of Houston: A Vision For Social And Economic Justice Commemorative To Charles Hamilton Houston: Commemorative Articles, Steven H. Hobbs

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Panthers And Pinstripes: The Case Of Ezra Pound And Archilbald Macleish, Jean Stefancic, Richard Delgado

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Zero-Based Racial Politics: An Evaluation Of Three Best-Case Arguments On Behalf Of The Nonwhite Underclass Commentary, Richard Delgado

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No abstract provided.