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

Articles

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 …

I Remember Them Well, Marian Gallagher, Julius J. Marke, Arthur A. Charpentier

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We who have undertaken the task of translating our AALL memories of personalities into words should not be viewed by our readers as having been present at the Narragansett Pier organizational meeting. We date from the early forties. No one now living can take any of us back to 1906. What we know of our early people we have gleaned from the Law Library Journal, and so should you, for we shall not talk of them. Ours is to be personal recollection, and we have known enough remarkable people to be content with that. Nor shall we talk of …

Price Discrimination Law And Economic Efficiency, Edward H. Cooper

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The Clayton Act, as amended by the Robinson-Patman Act (15 U.S.C. § 13), undertakes to outlaw price "discrimination" upon proof of threatened injury to competition, and subject to specified defenses. Lawyers often bewail the fact that administration of this statute frequently fails to conform to an economist's notion of discrimination. For the most part, the complaints are addressed to the clear fact that, as drafted and interpreted, the statute wreaks unnecessary damage. In the name of protecting competition, competition and economic efficiency are often curtailed.

The Regulation Of Labor Unions, Theodore J. St. Antoine

Articles

This year completes exactly a half century in the federalization and codification of American labor law. Before that the regulation of both the internal affairs and external relations of labor organizations was left largely to the individual states, usually through the application of common or nonstatutory law by the courts. One major exception was the railroad industry, whose patent importance to interstate commerce made it an acceptable subject for federal legislation like the Railway Labor Act.

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 …

Comments On Parfit, Donald H. Regan

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I will begin by saying that I am persuaded by most of Derek's claims and arguments. That may tend to make for rather uninteresting commentary, but I shall try to find something to say. I shall offer only one criticism of the main part of Derek's paper, and then I shall discuss at somewhat greater length the questions he raises in the last section of his paper. In the main body of the paper, Derek attempts to prove that if we accept what he calls the Complex View of personal identity, then we must abandon what he calls the Equal …

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

Articles

Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

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 …

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 …

Words That Wound: A Tort Action For Racial Insults, Epithets, And Name-Calling, Richard Delgado

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One of the first articles to discuss the problem of hate speech Words That Wound discusses the harms of racist speech before proposing a new tort enabling its victims to recover damages from the utterer I later expanded the article into a book with Jean Stefancic Entitled Understanding Words That Wound the book covers a range of recent problems including hate speech on the Internet campus hate speech codes and child porn

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

Articles

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 …

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).]

An Analysis Of The Impact Of The 55 Mph Speed Limit, David L. Farnsworth, Kenneth Mathis, Janet Herbert

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In January 1974 the speed limit on the New York State Thruway was set at 55 mph for all vehicles. This paper examines the effect of that action on Thruway fatality rates. The exact number of total miles driven is known for this toil road. Hence, death rates are based upon precise information. Since seven years have elapsed during the post-treatment period, 1974-1980, longer trends can be investigated. The death rate is modeled and intervention analysis performed. Using a variety of forecasting techniques, the pre-treatment fatality rates are used to project rates through the post-treatment period. In this way, the …

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

Articles

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 …

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

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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.

Mr. Chief Justice Burger On The State Of The Judiciary - 1981, Philip B. Kurland

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No abstract provided.

The 1980 U.N. Commission On Human Rights And The Disappeared, David Kramer, David Weissbrodt

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When the public debate began at the United Nations Commission on Human Rights on the question of disappeared persons, the atmosphere in the huge assembly hall was tense and expectant. The public gallery was jammed with the wives and families of those persons who had been "disappeared"- arrested, tortured, imprisoned, or possibly killed by governments which refused to admit any knowledge or responsibility. The concerned audience came from all over the world. A few had even been disappeared themselves, but had managed to escape.

A Note On Products Of Infinite Cyclic Groups, Brendan Goldsmith

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In his book [2], Fuchs introduces the notion of a subgroup X of a Specker group P being a product and goes on to establish a Lemma [2, Lemma 95.1] which yields a useful characterization of the quotient and enables an easy derivation of Nunke’s characterization of epimorphic images of the Specker group [4]. Unfortunately this Lemma is incorrect as we show in section 1. In section 2 by suitably strengthening the hypothesis we regain a characterization of the quotient. Throughout, all groups are additively written Abelian groups and our notation follows the standard works of Fuchs [1], [2].

Cults And Conversion: The Case For Informed Consent, Richard Delgado

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No abstract provided.

Concurrence In Quotes: A Critical Assessment Of Chief Justice Burger's Objections To A Right To Treatment For The Involuntarily Confined Mentally Ill, Richard Delgado, Michael N. Alexander, Peggy Bernardy, Fran Bremer

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No abstract provided.

Siting =/= Protection: A Note On Solar Access, Dale Goble

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In assuring solar access, it is necessary to distinguish between siting collectors and protecting their access to sunshine once they have been placed. Siting requires the flexibility to balance potentially competing uses of land; it is best accomplished by zoning and land use planning. Once a collector is sited, however, flexibility must give way to certainty. The necessary certainty cannot be provided by zoning, which conveys no legally enforceable right. It is best accomplished by the recognition of a solar right through a priority-based permit system.

Solar Access And Property Rights: Reply To A Maverick Analysis, Dale Goble

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No abstract provided.

Robert G. Dixon: In Memoriam, Philip B. Kurland

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No abstract provided.

Nondegradation And Visibility Under The Clean Air Act, David P. Currie

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No abstract provided.

The Ethical And Political Basis Of The Efficiency Norm In Common Law Adjudication, Richard A. Posner

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No abstract provided.