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Optimal Sanctions For Antitrust Violations, William M. Landes

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No abstract provided.

The Most Insignificant Justice: A Preliminary Inquiry, David P. Currie

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No abstract provided.

The Sovereignty Of The Courts, Edward Hirsch Levi

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No abstract provided.

The Media And The Courts: A Troubled Symbiosis, Donald L. Burnett Jr.

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No abstract provided.

The Surveys That Broke Monopoly, Hans Zeisel

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Dissenting Opinions By Supreme Court Justices In Federal Income Tax Controversies, Walter J. Blum

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No abstract provided.

The Direct And Collateral Estoppel Effects Of Alternative Holdings, Jo Desha Lucas

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No abstract provided.

Treatment Of Interest On Debtor Obligations In Reorganizations Under The Bankruptcy Code, Walter J. Blum

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No abstract provided.

The New Deal Regulatory Model: A History Of Criticisms And Refinements, Daniel J. Gifford

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When the Roosevelt administration took office in March 1933, the nation was suffering from the onslaught of the Great Depression. The complex set of economic and regulatory policies constituting President Franklin Roosevelt's "New Deal" focused primarily on restoring health to the economy and secondarily on achieving a modicum of income redistribution. The Roosevelt administration, however, possessed neither a clear understanding of the causes of the Depression, nor a coherent, stable, and workable scheme for ending it. Nevertheless, that administration's tenure produced widespread federal economic regulation and brought ferment, imagination, and creativity to theoretical and practical regulatory techniques.

Discretionary Decisionmaking In The Regulatory Agencies: A Conceptual Framework, Daniel J. Gifford

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For years, Professor Kenneth Culp Davis has directed the professional public's attention to the prevalence of what he believes to be insufficiently confined administrative discretion. 1 Davis has found powers of unduly wide latitude in agencies and administrators, such as tax collectors, 2 police officers, 3 welfare administrators, 4 and independent agencies supervising business behavior. 5 In general, Davis recommends confining the discretionary powers of agencies and officials more narrowly than they have been done in the past. He suggests that where discretion cannot practically be so confined, it should be "checked" or "structured." 6 Thus, Davis urges that "one …

The Persistence Of Classical Style, Patrick O. Gudridge

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Comment, Bernard H. Oxman

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Against Evaluator Relativity: A Response To Sen, Donald H. Regan

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In a recent essay in this journal Amartya Sen introduced the notion of an evaluator-relative consequence-based morality. The basic idea can be described very simply. A consequence-based morality is a morality that instructs each agent to maximize some objective function defined over states of affairs. Such a morality is evaluator neutral if it assigns to every agent the same objective function. If different agents have different objective functions, then the morality is evaluator relative. For example, a morality would be evaluator relative if it assigned to Jones an objective function giving greater weight to the welfare of Jones's children than …

The Ethics Of Argument: Plato's Gorgias And The Modern Lawyer, James Boyd White

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In what follows I shall analyze Plato's text and do my best to suggest a response to it. But I should say at the outset that for the modern lawyer and law teacher this is not merely an academic exercise, for we in fact are rhetoricians very much as Plato defines them. What is at stake for us in reading this dialogue is what it means to have devoted ourselves to the set of social and intellectual practices that define the profession of law. We have a special relation to this text, for we can in the full Platonic sense …

Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar

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[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has …

The Impact Of Executions On Homicides: A New Look In An Old Light, Richard Lempert

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Ehrlich's first point is that if one is searching for deterrence it is the law in action (i.e., the actual incidence of executions) rather than the law on the books (i.e., the presence or absence of the death penalty) which is crucial. His second point is that in order to spot deterrent effects other factors which might affect homicide rates, such as conviction rates and unemployment rates, must be held constant. Many of those who believe that Ehrlich's work is fundamentally flawed nevertheless accept these criticisms. This article follows Sellin's approach but takes account of Ehrlich's criticisms. Instead of comparing …

Imperial Scholar: Reflections On A Review Of Civil Rights Literature Commentary, Richard Delgado

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No abstract provided.

Extraordinary Writ Practice In Criminal Cases: Analogies For The Military Courts, Edward H. Cooper

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Extraordinary writs have two central functions in the hands of appellate courts. One is to enforce the court's mandate; there is no particular difficulty with this use of the writs, and no more need be said about it. The other function is to circumvent the ordinary channels of appellate review. In this function, writs operate as appeals in all but name. As this use has become more and more routine, it would be more appropriate to speak of them as "appeals writs" rather than extraordinary writs. My assignment is to speak of the experience with appeals writs in criminal cases …

The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein

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In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.

In Re Lattouf's Will And The Presumption Of Lifetime Fertility In Perpetuity Law, Lawrence W. Waggoner

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Adoption of children is an ever-present complication of class gifts and the Rule Against Perpetuities. Given this fac any effort to find the presumption of lifetime fertility rebuttable is largely illusory. The author demonstrates that the gift in In Re Lattouf's Will could have been sustained even in face of an irrebuttable presumption.

The Recent Erosion Of The Secured Creditor's Rights Through Cases, Rules And Statutory Changes In Bankruptcy Law, James J. White

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One can view the law of creditors' rights as a series of cyclesin which alternatively the rights of the creditor and then those of the debtor are in ascendancy. Looking back through Americanlegislative history, one sees both the state legislatures and the Congress intervening on behalf of debtors in a variety of ways onmany occasions. An early example of such intervention was the enactment, particularly in the Midwest and West, of generous exemption laws that removed a variety of property beyond the reach of general creditors. A second example is the enactment of usury laws, which continue to be a …

Suicide And The Failure Of Modern Moral Theory, Donald H. Regan

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The question I want to address is when and why suicide is morally wrong. There is something peculiar in my writing on this question at all. It will soon become apparent that although I think suicide involves genuine moral issues. I also think that the moral problem of suicide is a problem which most people answer correctly. That is, I think that in the vast majority of cases where people ought not to commit suicide, they do not. They are not even tempted. Conversely, most people who do commit suicide, or who want to, are either justified or at least …

Litigation Abuse And The Law Schools, John W. Reed

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At the Ninth Circuit Judicial Conference in July, 1983, one session was devoted to a discussion of "Excessive Discovery: A Symptom of Litigation Abuse." (Without knowing, I would guess that a similar title appeared on just about every judicial conference program this year-and last year, and the one before that.) Frank Rothman, President of MGM/United Artists, addressed the subject from the point of view of a corporate client, and his remarks are printed in this issue, beginning at page 342. Judges and trial lawyers expressed their views. And I was asked to comment on the extent to which the law …

Perpetuation Of Past Discrimination, Eric Schnapper

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Part I of this Article offers several justifications for providing remedies for present harms that are caused by past acts of discrimination. Part II describes the different ways in which past discrimination can cause a present injury, and suggests for each way the appropriate legal standard for deciding when there is a present constitutional violation. Part III discusses the problems likely to arise in administering the suggested standards, and concludes that these problems are not inherently different from those involved in ordinary discrimination cases.

The Natural Law Of Administrative Law, William H. Rodgers, Jr.

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Law teachers and researchers are inveterate seekers of metaphors. The metaphor, even if glib and obvious, invariably suggests further parallels and relationships, the conjoinder of phenomena. This is the road to uncovering unsuspected linkages and building simple descriptive models.

Theory building, in administrative law as elsewhere, begins with the capture and expression of the convincing metaphor. Extracting metaphors from the natural sciences to account for social happenings begins with a figure of speech and often ends there. Legislatures now are squeezing fat out of administrative agencies, an apt biological picture of a weight watcher's rigor being imposed on flabby, middle-aged …

Act Of State And Other Problems With Restatement Ii (Revised), Malvina Halberstam

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No abstract provided.

Book Review (Reviewing G. Edward White, Earl Warren: A Public Life (1982)), Philip B. Kurland

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No abstract provided.

Towards Neutral Principles In The Administration Of Criminal Justice: A Critique Of Supreme Court Decisions Sanctioning The Plea Bargaining Process, Malvina Halberstam

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This article compares the Court's reasoning in plea bargaining cases with its reasoning in non-plea-bargaining cases that involve the same legal principles. It analyzes the Court's arguments for sustaining guilty pleas induced by fear of the death penalty or by promises of leniency, and for sanctioning the imposition of harsher penalties on those who reject prosecutional offers to plead and insist on a trial. Finally, it briefly addresses the contention that the system for the administration of criminal justice in the United States could not function if use of a sentencing differential to induce guilty pleas were prohibited.

How Judges Speak: Some Lessons On Adjudication In Billy Budd, Sailor With An Application To Justice Rehnquist, Richard H. Weisberg

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The article examines how authority figures use language and procedural structures to shape outcomes in both literary and legal contexts, highlighting the tension between formal legal processes and true justice. Through a comparative analysis of Herman Melville's Billy Budd, Sailor and the Supreme Court case Paul v. Davis, the article argues that "considerate communication"—a subtle form of manipulation—can distort reality and undermine fairness in adjudication. It critiques legal systems that prioritize formality over substance, emphasizing how narrative techniques and rhetorical strategies in both literature and law can mask subjective biases and influence decisions.

The Social Consequences Of Common Law Rules, Richard A. Epstein

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In the past decade, commentators applying both economic and historical methods to the study of the classical common law have explicitly or implicitly made sweeping claims for the system's ability to allocate or redistribute substantial shares of wealth. In this Article, Professor Epstein challenges the assumption that the fundamental doctrines of the common law can have a decisive effect on the flow of resources in society. He calls attention to the constraints placed upon the system by the generality of its rules, the prospectively indeterminate alignment of economically interested parties, the expenses of adjudication, and the divergent social beliefs of …