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Eight Cases And Section 251, James J. White

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[A] continuing sense of reliance and security that the promised performance will be forthcoming. . . is an important feature of the bargain-so states Comment 1 to section 2-609 of the Uniform Commercial Code. At common law, one party to a contract might suffer considerable and justifiable anxiety about the other party's willingness or ability to perform and yet have no legal basis for cancelling the contract or for procuring additional assurances from the other party. Section 251 of the Restatement (Second) of Contracts is designed to provide a remedy for one party's reasonable fears that the other party to …

Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine

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"Peaceful picketing," the United States Supreme Court has said, "is the workingman's means of communication."' One line of analysis is that, as a means of communication, picketing is free speech and is therefore entitled to every constitutional protection afforded other forms of expression. This means that it cannot be subjected to special restrictions, such as antiboycott curbs, simply because it is picketing. The opposing line of analysis is that picketing is not simply speech; it is "speech plus." The "plus" element removes picketing from the realm of pure speech and enables it to be regulated in ways that the Constitution …

Introduction, Douglas A. Kahn

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While the estate and gift tax area has by no means been ignored in the legal literature, it has not been one of the more popular subjects. For that reason, a symposium on transfer taxation would be welcome at any time, but this is an especially propitious moment for one to appear.

Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner

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Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …

On Recognizing Variations In State Criminal Procedure, Jerold H. Israel

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Everyone recognizes that the laws governing criminal procedure vary somewhat from state to state. There is often a tendency, however, to underestimate the degree of diversity that exists. Even some of the most experienced practitioners believe that aside from variations on some minor matters, such as the number of peremptory challenges granted, and variation on a few major items, such as the use of the grand jury, the basic legal standards governing most procedures are approximately the same in a large majority of states. I have seen varied evidence of this misconception in practitioner discussions of law reform proposals, particularly …

Selective Incorporation Revisited, Jerold H. Israel

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In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the Court found incorporated …

Court Rulemaking In Washington State, Hugh D. Spitzer

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Reviews the history and approach to court rule making in Washington State. Critiques the Washington Supreme Court’s weakening of the Judicial Council and the Court’s assumption of control of aspects of rulemaking that might better be handled by a Judicial Council or the Legislature.

Building Theories Of Judicial Review In Natural Resources Law, William H. Rodgers, Jr.

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In the specialty of natural resources law, there is no reason to expect our tasks of description and prescription to be any easier. We deal, after all, with the allocation of scarce resources where there are winners and losers. This leads us quickly into substantive justice theories based on entitlements, needs, and deserts and process justice theories extending to each loser his due.

Justice theory is implemented through judicial review, and what courts do depends importantly upon behavioral assumptions about people, agencies of government, and empirical proof. The sources of these assumptions and evidence are often the sciences, and I …

Bringing People Back: Toward A Comprehensive Theory Of Taking In Natural Resources Law, William H. Rodgers, Jr.

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This Article attempts to bring people back into legal analysis by drawing upon behavioral preferences of human beings suggested by the laws of biology. Biological theory offers no all-encompassing explanations of legal outcomes, although it offers important, and much neglected, partial explanations.

That the law can be explained in this light suggests that courts have a view of human nature departing from the caricatures of much contemporary legal theory. We take as our setting an issue faced by each society in every era-property rights in natural resources.

Part I takes up the task of theory development by recanvassing property theory …

The Estate And Gift Tax Changes Of 1981: A Brief Essay On Historical Perspective, Edward A. Zelinsky

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No abstract provided.

Testimonial Immunity And The Privilege Against Self-Incrimination: A Study In Isomorphism, Peter Lushing

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This Article accepts and will develop the Court's isomorphic theory of immunity and privilege, and will show why Portash is nonetheless correct in result. A case for a broadened view of the privilege, partially because of the availability of testimonial immunity, will be made. Apftlbaum will be shown to be incorrect in result. This Article will also analyze the problem of immunized testimony and perjury by inconsistent statement, a problem faced once by the Court but left unresolved. Finally, this Article will discuss the constitutional requirements of an immunity statute, and consider an immunity case presently pending before the Supreme …

The Moralist As Expert Witness, Richard Delgado, Peter Mcallen

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No abstract provided.

National Labor Policy And The Conflict Between Safety And Production, Jonathan L.F. Silver

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No abstract provided.

Judicial Review Of Risk Assessments: The Role Of Decision Theory In Unscrambling The Benzene Decision, William H. Rodgers, Jr.

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[Reprinted in 13 Land Use & Envtl. L. Rev. 629-48 (1982).]

Section 4975 And Pte 77-9: The Causes Of Complexity In The Internal Revenue Code, Edward A. Zelinsky

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No abstract provided.

Full Faith And Credit, More Or Less, To Judgments: Doubts About Thomas V. Washington Gas Light Co., Stewart E. Sterk

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Workmen's compensation awards, decrees of administrative tribunals rather than courts, present the question of how far the mandate of the full faith and credit clause should reach and whether the clause should bar a claimant from pursuing supplemental compensation in a second state. Recently, in Thomas v. Washington Gas Light Co., the Supreme Court decided that full faith and credit should not prevent a claimant from obtaining supplemental compensation. Professor Sterk criticizes the Court's analysis, demonstrating the Thomas Court's neglect of the federal interests that the clause should protect. After examining the clause and its policy underpinnings, Professor Sterk …

A Right To Every Woman's Evidence, Richard O. Lempert

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I am indeed honored to be here with you today, honored to be joining you next year as Iowa's first Mason Ladd Visiting Distinguished Professor of Law, and honored to be giving the first Mason Ladd Lecture. The honor lies not just in the recognition you accord me, but also in the linkage to the man in whose name this recognition is given.

The Proper Role Of A Target's Management In Responding To A Tender Offer, Frank H. Easterbrook, Daniel R. Fischel

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Under existing federal and state law, a corporation's managers can resist and often defeat a premium tender offer without liability to either the corporation's shareholders or the unsuccessful tender offeror. Professors Easterbrook and Fischel argue that resistance by a corporation's managers to premium tender offers, even if it triggers a bidding contest, ultimately decreases shareholder welfare. Shareholders would be better off, the authors claim, were such resistance all but proscribed. The authors consider, but find wanting, a number of potential criticisms of their analysis; they conclude by proposing a rule of mangerial passivity capable of controlling resistance in actual cases.

Faces Without Features: The Surface Validity Of Criminal Inferences, Peter Lushing

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The article critiques the Supreme Court's decision in County Court v. Allen, arguing that the Court's approach to evaluating instructed inferences in criminal cases undermines the integrity of the fact-finding process. The central concern is that the Court's methodology, which assesses inferences as applied rather than on their face, fails to address the potential irrationality of such inferences and the pressure they may exert on jurors to convict without thorough consideration of the evidence. The article advocates for a more rigorous standard to ensure the rationality and constitutionality of instructed inferences in criminal trials.

Standing Up For Fourth Amendment Rights: Salvucci, Rawlings, And The Reasonable Expectation Of Privacy (Comment), Elizabeth Brandt

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The initial inquiry a court must make before considering a motion to suppress evidence based on an unreasonable search and seizure is whether the individual has standing under the fourth amendment. This Note examines the historical development of the standing doctrines leading to the reasonable expectation of privacy test adopted by the Supreme Court in Rakas v. Illinois. The Note also identifies the problems created by the Court's far-reaching application of this test. The author concludes that the overall effect of recent decisions may be to limit the number of defendants able to assert fourth amendment claims, since suppression hearing …

Cost-Benefit Analysis And The Separation Of Powers, Cass R. Sunstein

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No abstract provided.

Chairman's Message, Antonin Scalia

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No abstract provided.

The Changing Plea Bargaining Debate, Albert Alschuler

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No abstract provided.

Maximum Price Fixing, Frank H. Easterbrook

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No abstract provided.

Notice And Freedom Of Contract In The Law Of Servitudes Comments, Richard A. Epstein

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No abstract provided.

The Historical Origins And Economic Structure Of Workers' Compensation Law, Richard A. Epstein

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No abstract provided.

Rescuing Some Antitrust Law: An Essay On Vertical Restrictions And Consumer Information, Saul Levmore

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No abstract provided.

A Reply To Some Recent Criticisms Of The Efficiency Theory Of The Common Law, Richard A. Posner

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No abstract provided.

The Next Step In The Antitrust Treatment Of Restricted Distribution: Per Se Legality, Richard A. Posner

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No abstract provided.

State Pollution Statutes, David P. Currie

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No abstract provided.