Digital Commons Network^™

Use Of The Civil Law In Post-Revolutionary American Jurisprudence, Richard H. Helmholz

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No abstract provided.

The Hourglass And Due Process: The Propriety Of Time Limits On Civil Trials, John E. Rumel

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No abstract provided.

State Adoption Of A Value Added Tax: A Desperate Act In Search Of The Proper Occasion, John A. Miller

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No abstract provided.

Free Speech Now, Cass R. Sunstein

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No abstract provided.

Informing America: Risk, Disclosure, And The First Amendment, Cass R. Sunstein

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No abstract provided.

On Analogical Reasoning Commentary, Cass R. Sunstein

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No abstract provided.

The True Wisdom Of The Bill Of Rights, Philip B. Kurland

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Property And The Politics Of Distrust, Richard A. Epstein

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A Common Lawyer Looks At Constitutional Interpretation, Richard A. Epstein

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No abstract provided.

The Politics Of Women's Wrongs And The Bill Of 'Rights': A Bicentennial Perspective, Mary E. Becker

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Corporate Law And The Longterm Shareholder Model Of Corporate Governance, John H. Matheson, Brent A. Olson

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The key to effective corporate accountability today appears to be the existence of a class of "permanent" owners, holding approximately one-quarter of the outstanding equity, who have an incentive to monitor the operations of the corporation. This is essentially the system in Germany, Britain, and Japan. . . . In the United States, encouraging a pattern of domestic institutional ownership will be a way of ensuring the continuance of effective governance. The challenge, then, for the United States is to identify its "permanent" shareholder institutions and to ensure that they have the incentive and ability to perform the monitoring function. …

The Forty-Third Session Of The Un Sub-Commission On Prevention Of Discrimination And Protection Of Minorities: The Sub-Commission Under Scrutiny, Karen Reierson, David Weissbrodt

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Throughout 1988, the United Nations celebrated the fortieth anniversary of its seminal human rights instrument, the Universal Declaration of Human Rights.' At its August 1988 session the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities2 (hereinafter the Sub- Commission) noted a similar milestone in its history; it met for the fortieth time since its creation in 1947. While the fortieth anniversary of the Dec- laration has inspired self-congratulatory activities throughout the United Nations, the 1988 session of the Sub-Commission was marked more by self- evaluation. The Sub-Commission has been engaged in a process of taking stock of …

Gao Report Confirms Failure Of U.S. Guidelines, Michael Tonry

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No abstract provided.

Salvaging The Sentencing Guidelines In Seven Easy Steps, Michael Tonry

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Light Thoughts And Night Thoughts On The American Family, Judith T. Younger

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No abstract provided.

His To Give; His To Receive; Hers To Trust: A Response To Carol M. Rose, Mary Louise Fellows

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No abstract provided.

Gao Report Confirms Failure Of U.S. Sentencing Commissions Guidelines, Michael Tonry

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No abstract provided.

The Model Employment Termination Act: Fairness For Employees And Employers Alike, Theodore J. St. Antoine

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The Model Employment Termination Act (META), which state legislatures are expected to consider in the near future aims to prevent the unfair firing of Amer~ ican workers. At the same time, the Act aims to prevent devastating financial blows to American business. For both employees and employers, META offers streamlined dispute resolution procedures that would be simpler, less costly, and less time-consuming than the civil courts. The essence of the proposal is compromise-not as a matter of political expediency but as a practical, balanced accommodation of the competing worthwhile interests of employers and employees. Workers are entitled to be free …

The Benevolent Paternalism Of Japanese Criminal Justice, Daniel H. Foote

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Models for a criminal-justice system based on an ethos of rehabilitation and reintegration-such as Llewellyn's "parental" and Griffiths' "family" models-have been regarded as idealistic but unworkable in the real world, except perhaps in totalitarian or primitive societies. Professor Foote, however, has found in Japan just such a model, which he labels "benevolent paternalism." The Japanese criminal-justice system is benevolent in that its goal is to achieve reformation and reintegration into society through lenient sanctions tailored to the offender's particular circumstances. The system is paternalism in that it allows substantial discretion to the state in both gathering and using information about …

Recent Developments - Cinematic Sex And Censorship In Indian Film, Anita Ramasastry

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This Recent Development examines the increasing presence of cinematic rape in general-audience Indian films and discusses the potential cultural origins of the cinematic portrait of Indian women as chaste subordinates to men and as frequent subjects of violence. To account for this trend, this Recent Development outlines the legal guidelines governing Indian film censorship, and in particular the guidelines regulating sexuality. From this vantage point, the use of various suggestive cinematic techniques, including the regular portrayal of rape, may be seen as attempts by directors to circumvent government censure of kissing and other intimate relations on-screen. Finally, this Recent Development …

Tales Of Two Cities: Aids And The Legal Recognition Of Domestic Partnerships In San Francisco And New York, David L. Chambers

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Here are two stories. They are of the quite different ways that domestic partnerships of lesbian and gay couples have come to be recognized, for some purposes, in San Francisco and New York City. I tell the stories for their own sake, but with a particular focus on the role that AIDS played in the political process in each city.

Spousal Rights In Our Multiple-Marriage Society: The Revised Uniform Probate Code, Lawrence W. Waggoner

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The transformation of the American family constitutes one of the great phenomenons of the past two decades. The traditional Leave It to Beaver family no longer prevails in American society. To be sure, families consisting of the wage-earning husband, the homemaking and child-rearing wife, and their two joint children still exist. But divorce rates are astonishingly high and remarriage abounds. In fact, there is an increasing prevalence in the population of marriages that are more likely to end in divorce than others-marriages in which one or both partners were divorced before and marriages of couples who cohabited prior to marriage.

Toward A Partial Economic, Game-Theoretic Analysis Of Hearsay, Richard D. Friedman

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In this Article, I offer a fundamentally different and nondoctrinaire way of approaching hearsay questions. In brief, I take the view that the resolution of a hearsay dispute, when the declarant is not on the stand, is essentially a matter of deciding who should bear the burden of producing the declarant, or more precisely, how courts should allocate that burden. Adopting a simple procedural improvement, concerning the examination of the declarant if she is produced as a witness, allows the court to allocate the burden optimally. If live testimony by the declarant would be more probative than prejudicial, then most …

Tax Expenditure Budgets: A Critical View, Douglas A. Kahn, Jeffrey S. Lehman

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During the past few months, Tax Notes has featured an extended discussion about the "normalcy" (or lack thereof) of accelerated depreciation. Two contributions to that discussion came from Professor Calvin Johnson of the University of Texas Law School, who disagreed with certain aspects of an article that Professor Kahn wrote in 1979. And the debate shows no sign of slowing down. The interchange over the details of accelerated depreciation offers a useful backdrop against which to consider a more general issue: the intellectual coherence of the tax expenditure budgets. The larger concept of tax expenditures was what motivated Kahn to …

Judicial Textualism Meets Congressional Micromanagement: A Potential Collision In Clean Air Act Interpretation, Michael E. Herz

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No abstract provided.

Bankruptcy Theory And The Creditors' Bargain, David G. Carlson

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The article critiques the traditional "simple creditors' bargain" theory in bankruptcy law, arguing that it fails to align with libertarian principles due to its inability to justify bankruptcy discharges and its exclusion of debtors and non-creditors. It then explores an "expanded creditors' bargain," which attempts to address distributive aspects but ultimately falls short by excluding non-consensual creditors and failing to explain why contractual risk allocation is insufficient. The analysis highlights the theory's shortcomings in handling various creditor types and risks, questioning its validity in explaining bankruptcy law.

Child Protection Legal Process: Comparing The United States And Great Britain, Donald N. Duquette

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The legal response to child maltreatment-or the risk of child maltreatment-varies greatly from society to society and has been little studied, in part because of the idiosyncrasies of community values, social organization, history and legal traditions.2 Cross-country comparison of child abuse and neglect is especially difficult because the ambiguity of social standards and the imprecision of terms used makes it difficult to define the specific behavior one is studying. Even though child maltreatment is widely prohibited, the definition of what actually constitutes child abuse and neglect is not clear within a particular country, much less uniform from one society to …

On Integrated Pollution Control, James E. Krier

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Integrated pollution control, or IPC, can be defined for now as an approach to environmental regulation that "seeks particularly to link air, water, and waste programs. Its concern is institutional changes that reduce total risk to the environment from pollutants." 8 This sounds remarkably appealing, which perhaps explains IPC's recurring popularity. As we shall see, it enjoyed a brief celebrity about twenty years ago, and it is once again in vogue-especially within the U.S. Environmental Protection Agency (EPA).

Is the Agency's recent interest in IPC a good thing? We worry that it is not. First of all, IPC has an …

Infinite Strands, Infinitesimally Thin: Storytelling, Bayesianism, Hearsay And Other Evidence, Richard D. Friedman

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David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference …

Reforming The Law Of Gratuitous Transfers: The New Uniform Probate Code, John H. Langbein, Lawrence W. Waggoner

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In the mid-1980s the Uniform Law Commission undertook a landmark revision of the American law of gratuitous transfers. These reforms culminated in a drastically revised Uniform Probate Code ("UPC"). The revisions inspired the Albany Law Review to organize this symposium issue for the purpose of examining the 1990 UPC. In this introductory paper, we point to the main themes of the reform movement, discuss some of the traits and constraints of the uniform law process, and comment on some of the suggestions and insights that appear in the symposium articles.