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Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine Jan 1988

Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine

Articles

Nearly all rank-and-file employees in private businesses of any substantial size in the United States are protected by federal law against antiunion discrimination. The Railway Labor Act applies to the railroad and airline industries. The National Labor Relations Act (NLRA) applies to all other businesses whose operations "affect [interstate] commerce" in almost any way. Supervisory and managerial personnel, domestic servants, and agricultural workers are excluded from this federal scheme. Separate federal law covers the employees of the federal government. About thirty of the fifty states have statutes ensuring the right to organize on the part of some or most of …


A Seed Germinates: Unjust Discharge Reform Heads Toward Full Flower, Theodore J. St. Antoine Jan 1988

A Seed Germinates: Unjust Discharge Reform Heads Toward Full Flower, Theodore J. St. Antoine

Articles

In this paper, I shall briefly review the nature and limitations of the theories most frequently invoked by the courts in dealing with wrongful dismissal. I shall then examine the major arguments for and against a general overhaul of the doctrine of employment at will. Lastly, I shall discuss some of the particular questions that will have to be addressed in fashioning a statutory solution.


The Juvenile Court Meets The Principle Of Offense: Punishment, Treatment, And The Difference It Makes, Barry C. Feld Jan 1988

The Juvenile Court Meets The Principle Of Offense: Punishment, Treatment, And The Difference It Makes, Barry C. Feld

Articles

The United States Supreme Court's decision In re Gault 1 transformed the juvenile court into a very different institution than that envisioned by its Progressive creators. 2 Judicial and legislative efforts to harmonize the juvenile court with Gault's constitutional mandate have modified the purpose, process, and operation of the juvenile justice system. The Progressives envisioned a procedurally informal court with individualized, offender-oriented dispositional practices. The Supreme Court's due process decisions impose procedural formality on the juvenile court's traditional, individualized-treatment sentencing schemes. As the juvenile court system deviates from the Progressive ideal, it increasingly resembles, both procedurally and substantively, the adult …


Empirical Studies In Civil Procedure: A Selected Annotated Bibliography, Michael G. Chiorazzi, Barbara A. Baccari, Karen R. Cashion, Christopher R. Hart, Donald M. Nielsen, Charles M. North, William T. O'Neil Jan 1988

Empirical Studies In Civil Procedure: A Selected Annotated Bibliography, Michael G. Chiorazzi, Barbara A. Baccari, Karen R. Cashion, Christopher R. Hart, Donald M. Nielsen, Charles M. North, William T. O'Neil

Articles

No abstract provided.


Psychiatric And Chemical Dependency Treatment Of Minors: The Myth Of Voluntary Treatment And The Capacity To Consent, Beverly Balos, Ira Schwartz Jan 1988

Psychiatric And Chemical Dependency Treatment Of Minors: The Myth Of Voluntary Treatment And The Capacity To Consent, Beverly Balos, Ira Schwartz

Articles

No abstract provided.


Proprietary Rights And The Norms Of Science In Biotechnology Research, Rebecca S. Eisenberg Dec 1987

Proprietary Rights And The Norms Of Science In Biotechnology Research, Rebecca S. Eisenberg

Articles

As basic research in biotechnology yields increasing commercial applications, scientists and their research sponsors have become more eager to protect the commercial value of research discoveries through intellectual property law. Some scientists fear that these commercial incentives will weaken or even undermine the norms that have traditionally governed scientific research. In this Article, Professor Eisenberg examines the interaction of proprietary rights in inventions with these traditional scientific norms. Trade secrecy, she argues, is an undesirable strategy for protection of basic research discoveries because it impedes dissemination of new knowledge to the scientific community. She finds that patent law is in …


Law And Enchantment: The Place Of Belief, Joseph Vining Dec 1987

Law And Enchantment: The Place Of Belief, Joseph Vining

Articles

The question I wish to raise is whether one must believe what one says when one makes a statement of law. The language of belief that we know, and from which moral discourse and the moral never stray far: do judges, lawyers, law participate in it? Any such question is but an aspect of a larger question, indeed issue, of what we may call the objectivity of legal language. It is raised perhaps most acutely by the broad claims now being made for artificial intelligence and in particular for the computer programming of legal advice (as a species of what …


How To Argue About Health Care, Don Herzog Feb 1987

How To Argue About Health Care, Don Herzog

Articles

Despite the aggressive title of this article, my goals are modest. I begin by explaining briefly what should at any rate be obvious: that health care policies inescapably raise moral and political difficulties, difficulties that no technical fix could resolve. I move on to puzzle over the connections between some of the more abstract issues of moral and political theory and medical policy: here I urge that we develop a more sustained taste for exploring the moral conflicts embedded in our current practices. Finally, I suggest a strategy for making nitty-gritty facts-from the concrete world of third-party payment, expensive technology, …


The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross Feb 1987

The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross

Articles

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by …


The Decline Of Law As An Autonomous Discipline: 1962-1987, Richard A. Posner Jan 1987

The Decline Of Law As An Autonomous Discipline: 1962-1987, Richard A. Posner

Articles

No abstract provided.


Preventive Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler Jan 1987

Preventive Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

Articles

No abstract provided.


Legal Liability For Medical Innovation, Richard A. Epstein Jan 1987

Legal Liability For Medical Innovation, Richard A. Epstein

Articles

No abstract provided.


The Efficiency And The Efficacy Of Title Vii, Richard A. Posner Jan 1987

The Efficiency And The Efficacy Of Title Vii, Richard A. Posner

Articles

No abstract provided.


The Regulation Of The Market In Adoptions, Richard A. Posner Jan 1987

The Regulation Of The Market In Adoptions, Richard A. Posner

Articles

No abstract provided.


A Jury Hoax: The Superpower Of The Opening Statement, Hans Zeisel Jan 1987

A Jury Hoax: The Superpower Of The Opening Statement, Hans Zeisel

Articles

No abstract provided.


The Juvenile Court Meets The Principle Of The Offense: Legislative Changes In Juvenile Waiver Statutes, Barry C. Feld Jan 1987

The Juvenile Court Meets The Principle Of The Offense: Legislative Changes In Juvenile Waiver Statutes, Barry C. Feld

Articles

At its inception the juvenile court was characterized by procedural informality and individualized, offender-oriented dispositions. Subsequent to the U.S. Supreme Court's 'Gault' decision, which mandated procedural safeguards in the adjudication of delinquency, juvenile court procedures became more formal in the interest of protecting the rights of juveniles, but individualized, offender-oriented dispositions were preserved. The inability of proponents of juvenile rehabilitation to demonstrate the effectiveness of parens patriae intervention, however, has led an increasing number of States to incorporate 'just deserts' sentencing principles in their juvenile justice systems. This emphasis is evidenced in the waiver of juvenile offenders for criminal prosecution …


Guerilla Decisionmaking: Judicial Review Of Risk Assessments, William H. Rodgers, Jr. Jan 1987

Guerilla Decisionmaking: Judicial Review Of Risk Assessments, William H. Rodgers, Jr.

Articles

This paper describes four types of uncertainty confronted by decisionmakers undertaking risk assessments. It then discusses individual and institutional responses to uncertainty; these include both formal attempts to acquire more information, and pragmatic efforts to isolate and act upon salient considerations. The tendency of decisionmakers to narrow the agenda and search for a decisive datum or metaphor is called guerilla decisionmaking. Courts oversee agency decisions by techniques known widely in the legal community as the hard-look doctrine. This doctrine is defined, and the case law is used to illustrate how courts insist upon identification of salient risk-assessment factors and the …


In Defense Of Administrative Agency Autonomy, A. Michael Froomkin Jan 1987

In Defense Of Administrative Agency Autonomy, A. Michael Froomkin

Articles

No abstract provided.


The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want Minority Critiques Of The Critical Legal Studies Movement, Richard Delgado Jan 1987

The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want Minority Critiques Of The Critical Legal Studies Movement, Richard Delgado

Articles

No abstract provided.


Thinking About Our Language, James Boyd White Jan 1987

Thinking About Our Language, James Boyd White

Articles

Except for one meeting, which I will describe below, I knew Bob Cover only through his writings. This circumstance was of course a disappointment to me, for our interests were similar, and his death now makes the loss irreparable. But perhaps this is less of a limitation than would normally be the case, for as much as anyone in the law Bob was, and is, actively present in his writing, both as a person and as a mind.-But that dichotomy of person and mind gets it wrong, for what I would like to catch is a sense of fusion or …


Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar Jan 1987

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

Articles

Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …


Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan Jan 1987

Siamese Essays: (I) Cts Corp. V. Dynamics Corp. Of America And Dormant Commerce Clause Doctrine; (Ii) Extraterritorial State Legislation, Donald H. Regan

Articles

What follows is two essays, related as Siamese twins. Both essays developed from a single conception. They are distinct, but they remain connected by a shared subtopic. The first essay is about CTS Corp. v. Dynamics Corp. of America1 as a contribution to dormant commerce clause doctrine. The second essay is about the constitutional principle that states may not legislate extraterritorially, which I shall refer to as the "extraterritoriality principle." The shared subtopic is the extraterritoriality problem in CTS. (There is an extraterritoriality problem in CTS, even though the Court does not discuss it in those terms.) I could have …


The Twilight Of Employment At Will? An Update, Theodore J. St. Antoine Jan 1987

The Twilight Of Employment At Will? An Update, Theodore J. St. Antoine

Articles

A 55-year-old white male, who has spent thirty years working his way up to a responsible middle-management position in his company, is asked for his resignation. No reason given. Even though the employee could demonstrate that he still is qualified to perform his duties, the employer's action in dismissing him would be quite unexceptionable under the conventional American common law doctrine of employment at will. The situation could be even more disturbing. If the employment-at-will principle were allowed its full scope, an employee would have no recourse even if he knew he was being discharged because he had refused to …


Intellectual Integration, James Boyd White Jan 1987

Intellectual Integration, James Boyd White

Articles

In this paper, I want to talk about the activity of intellectual integration itself: about what it can mean to integrate-to put together in a complex whole-aspects of our culture, or of the world, that seem to us disparate or unconnected; and what it can mean in so doing to integrate-to bring together in interactive life-aspects of our own minds and beings that we normally separate or divide from each other: I want to think of integration, that is-and of its opposite, disintegration-as taking place on two planes of existence at once, the cultural and the individual. For what is …


Economics And Law: Two Cultures In Tension, James Boyd White Jan 1987

Economics And Law: Two Cultures In Tension, James Boyd White

Articles

I want to preface my remarks by saying something about the kind of talk this is going to be. As my title says, I shall speak mainly about economics and law, which I shall examine as forms of thought and life, or what I shall call cultures. With law, about which in fact I shall speak rather briefly, I am naturally familiar by training and experience. But with economics I am familiar only as an observer­ as a general reader who reads the newspaper, as a lawyer who has followed a little of the law and economics literature, and as …


Neighbors In American Land Law, Stewart E. Sterk Jan 1987

Neighbors In American Land Law, Stewart E. Sterk

Articles

The article critiques the foundational principle of land law known as the "geometric-box allocation," which assumes landowners have absolute control over their property within defined boundaries. While this model provides clarity and facilitates private bargaining, the analysis argues that it often fails to account for externalities, social norms, and bilateral monopoly situations, leading to inefficiencies. The author challenges the assumption that private bargaining will always produce efficient results, particularly in low-transaction-cost scenarios, and highlights the limitations of using intent as a justification for cross-boundary allocations. The article ultimately suggests that land law doctrine reflects and reinforces both individualist and non-individualist …


Philosophy In Bankruptcy, David G. Carlson Jan 1987

Philosophy In Bankruptcy, David G. Carlson

Articles

The article critically examines Jackson's theories on bankruptcy law, arguing that his "creditor's bargain" model is logically inconsistent and lacks empirical support. It highlights flaws in his assumptions of creditor equality and the justification for bankruptcy discharge, ultimately concluding that his work is ad hoc and unverifiable.


Arguing About Rights, Charles M. Yablon Jan 1987

Arguing About Rights, Charles M. Yablon

Articles

No abstract provided.


Facilitative Ethics In Divorce Mediation: A Law And Process Approach, Steven H. Hobbs Jan 1987

Facilitative Ethics In Divorce Mediation: A Law And Process Approach, Steven H. Hobbs

Articles

No abstract provided.


Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross Jan 1987

Loss Of Innocence: Eyewitness Identification And Proof Of Guilt, Samuel R. Gross

Articles

It is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter, and nearly a century of psychological research has confirmed this skeptical view. In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials; since then it has retreated part way from that effort. Legal scholars have written a small library of books and articles on this problem, the courts' response to it, and various proposed …