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General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

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(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987)

Patents And The Progress Of Science: Exclusive Rights And Experimental Use, Rebecca S. Eisenberg

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In this article I analyze the proper scope of an experimental use exemption from patent infringement liability by comparing the rationales behind promoting technological progress through granting exclusive patent rights in inventions with competing arguments for promoting scientific progress by allowing all investigators to enjoy free access to the discoveries of other scientists. I begin by reviewing key features of the patent laws and theoretical justifications for granting patent monopolies in order to clarify the implications of existing patent doctrine and theory for an experimental use exemption. I then look to the literature in the sociology, history, and philosophy of …

First Person Singular, John W. Reed

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The hot topic in legal circles is the decline of professionalism. In this often negative age, it ranks right up there with "What's wrong with American schools?" and "Where will we live when the ozone is gone?" and "How can we get a handle on drugs?"-all those terrible things.

Copyright Legislation And Technological Change, Jessica D. Litman

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Throughout its history, copyright law has had difficulty accommodating technological change. Although the substance of copyright legislation in this century has evolved from meetings among industry representatives whose avowed purpose was to draft legislation that provided for the future,6 the resulting statutes have done so poorly. The language of copyright statutes has been phrased in fact-specific language that has grown obsolete as new modes and mediums of copyrightable expression have developed. Whatever copyright statute has been on the books has been routinely, and justifiably, criticized as outmoded.7 In this Article, I suggest that the nature of the legislative process we …

At-Will Employment: An Overview, Theodore J. St. Antoine

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The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine.

Hiring Ruled Contractual, Bill Gore, Douglas A. Kahn, Stan Shields

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On December 29, 1988, the California Supreme Court decided Foley vs. Interactive Data Corp., perhaps the most eagerly awaited state supreme court decision in years. The Foley ruling, which immediately was hailed as a tremendous victory for California employers, eliminated punitive damage awards for many wrongfully terminated employees. That was good news for the employers. The decision, however, also provided employers with sobering news. Most significantly, the court ruled that employment relationships essentially are contracts, with terms created by the reasonable expectation of the parties. Thus, the majority of California employees now have a right to sue for breach …

Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar

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Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …

Opinion Of The Supreme People's Court On Questions Concerning The Implementation Of The General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

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The General Principles of Civil Law of the People's Republic of China ("General Principles") came into force on January 1, 1987. We now issue the following Opinion concerning issues encountered when implementing the General Principles

Diagnosis Of The Current Code Of Criminal Procedure, Daniel H. Foote

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Approximately 35 years have passed since the current Code of Criminal Procedure went into effect, and today the manner in which that Code is interpreted and applied appears nearly stable. In truth, for most of the provisions and systems under the current Code about which there had been many questions of interpretation and application (e.g., interpretation of the provisions concerning hearsay evidence, discovery, exclusion of illegally-obtained evidence, and abuse of the authority to prosecute), some sort of conclusion (ichid no ketsuron) has been reached. In that sense, matters have "stabilized." However, in my view much more deep-seated problems remain unresolved. …

Summary Of Tokugawa Criminal Justice, Daniel H. Foote

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The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …

Nonlawyers In The Business Of Law: Does The One Who Has The Gold Really Make The Rules?, Thomas R. Andrews

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For at least sixty years nonlawyers have been prohibited from offering their nonlegal talents in a business combination with lawyers practicing law. Moreover, when the ABA's new model rules were adopted in 1983, the ABA considered carefully but rejected a proposal that would have lifted the traditional ban on nonlawyer ownership of a law business. Nonetheless, the point of each article was that the relevant restrictions in the ethical rules are on their way out.

Commentators have given considerable attention to the unauthorized practice of law by nonlawyers, and to the offering of legal services by nonprofit institutions. The focus …

The Lesson Of The Owl And The Crows: The Role Of Deception In The Evolution Of The Environmental Statutes, William H. Rodgers, Jr.

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In this world of strategies and counterstrategies, the advantages of the good fake are not to be overlooked. Fakery is an indelible part of the landscape in settings where we readily accept the gaming metaphor—sporting events are the obvious examples. But I wish to emphasize how fakery and deception can play an important role in legal interactions as well, particularly in the writing of the environmental statutes. Environmental lawyers often are fond of borrowing examples from natural history to illustrate propositions of law. There is more to this practice than habit, it seems to me, because the natural laws of …

Statutory Damage Caps Are An Incomplete Reform: A Proposal For Attorney Fee Shifting In Tort Actions, Gregory A. Hicks

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The premise of this article is that the currently unsettled status of noneconomic damage awards offers an opportunity to reexamine the function of such awards, and to move tort law in the direction of more stable and rational remedies, something that could not be achieved either under recently adopted damage cap statutes or through the reinstatement of unrestricted compensation of noneconomic losses.

This article has two parts. In the first part, the ambiguous role of noneconomic damages, that is, their function as makeweight compensation for noncompensable litigation expenses and as compensation for real intangible injuries, is described. This ambiguity has …

Congressional Abrogation Of Indian Treaties: Reevaluation And Reform, Michael Townsend

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The treaties between the United States and the Indians constitute a critical recognition and guarantee of Indian rights. They envision a "measured separatism"' for an important minority that is determined to maintain a distinct cultural and political identity.' Non-treaty rights are fragile: The Supreme Court has held that Indians are not citizens within the meaning of the Fourteenth Amendment,' and that Congress has "plenary power" over Indian affairs by virtue of its guardianship over their interests. Moreover, the United States has ended the formal negotiation process with the Indians, and apparently no further treaties will be concluded. Thus, Congress' power …

The Lesson Of The Red Squirrel: Consensus And Betrayal In The Environmental Statutes, William H. Rodgers, Jr.

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The subjects of legislation and legislative change are undergoing a revival of sorts in United States' law schools. The academic community has offered a variety of theoretical visions on the nature of legislation—purposive and rational, irrational and political, the accidental outcome of competing interests, the imperfect product of high philosophy; the legislative process—formal and ritualistic, markets and auctions, plots and cabals, or publicregarding negotiations; and the individual legislators themselves—ritual players, auctioneers, maximizers of political gain, profiteers, and philosopher kings in shiny suits.

This author's personal approach to legal affairs of this sort is to draw on the laws of biology …

"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper

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Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.

Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that …

Judges Against Juries—Appellate Review Of Federal Civil Jury Verdicts, Eric Schnapper

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This Article seeks to assess the treatment of civil jury verdicts by the federal courts of appeals during the two decades in which the Supreme Court has refused to scrutinize the actions of the circuit courts. Part I summarizes the manner in which the Supreme Court, prior to 1968, aggressively enforced the seventh amendment. Part II, focusing on a one-year period between the fall of 1984 and the fall of 1985, describes the actions of the courts of appeals in resolving the 208 reported cases in which a party challenged the sufficiency of the evidence to support a jury verdict. …

The Foreign Sovereign Immunities Act And Act Of State, Malvina Halberstam

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No abstract provided.

Racism And Legal Doctrine (Reviewing Derrick Bell, And We Are Not Saved (1987)), Mary E. Becker

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No abstract provided.

Perspectives On The Deferral Of U.S. Taxation Of The Earnings Of Foreign Corporations, Joseph Isenbergh

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No abstract provided.

Individual Autonomy And Collective Empowerment In Labor Law: Union Membership Resignations And Strikebreaking In The New Economy, David Abraham

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In this Article, Doctor Abraham studies the tensions between individual rights and theories of collective action in the context of union membership resignations and strikebreaking. He argues that recent judicial and executive tendencies to value individual worker autonomy over collective union action are misguided, lacking a basis in both legal precedent and social reality. In support of his view, Abraham first explores the philosophical and historical-sociological roots of labor and labor-capital relations, focusing on the meaning of employment and the history of collective action. Next, he examines the social and legal origins of the judiciary's recent tendency to increase union …

Nollan, Henry George, And Exactions, Stewart E. Sterk

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The article examines the legal and economic implications of exactions, particularly in light of the Supreme Court's decision in Nollan v. California Coastal Commission. While exactions—requirements imposed on developers to provide municipal benefits—can theoretically promote efficiency and fairness, the analysis suggests that their practical implementation by municipalities is fraught with challenges. These challenges include the potential for inefficiency, unfairness, and arbitrary decision-making, which may undermine their effectiveness and raise constitutional concerns. The article argues that the concerns expressed in Nollan and other cases stem from the fear that exaction schemes could lead to inefficient and unfair municipal behavior, as well …

Family Feud: A Response To Robert Weisberg On Law And Literature, Richard H. Weisberg

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The article engages in a critical dialogue with Robert Weisberg's work on the intersection of law and literature, particularly his skepticism toward the field's potential for sentimentality and his resistance to the literary text as a primary source of legal insight. The author argues that literature provides a unique lens for understanding the irrationalities and ethical dimensions of legal discourse, challenging Weisberg's dismissal of its value. The article contends that Law and Literature must embrace its subversive potential to critique legal assumptions and institutional language, while also addressing the broader cultural and epistemological challenges facing interdisciplinary scholarship.

Irregular' Asylum Seekers: What's All The Fuss?, James C. Hathaway

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In 1985, the Executive Committee of UNHCR noted its concern about "the growing phenomenon of refugees and asylum-seekers who, having found protection in one country, move in an irregular manner to another country..." (Conclusion No. 36, para. j). At first glance, one might not view this conclusion as objectionable. With all of the millions of refugees in the world, most of who have no protection, why should we be concerned about the lot of a bunch of ingrates who, having already found protection, now want to move on in search of greener pastures? Don't we really have better things to …

Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory And Contract Law, Lester Brickman, Lawrence A. Cunningham

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Since the New York Court of Appeals banned nonrefundable retainers, numerous other courts have joined in prohibiting this widespread practice of lawyers charging a fee for services in advance and keeping the fee even if the services are not performed. This may reflect increased judicial recognition of the effect of egregious fee practices on the image of the bar and the role such practices play in the declining esteem in which the legal profession is held. Among the more provocative contributors to this ongoing debate, Professor Steven Lubet recently reviewed our work advocating the ban against nonrefundable retainers and posed …

Appellate Review Of Refusals To Depart, David Yellen

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No abstract provided.

Coming Of Age Some More: "Law And Literature" Beyond The Cradle, Richard H. Weisberg

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The article explores the historical development and significance of the Law and Literature movement, emphasizing the importance of literature in understanding legal reasoning, judicial writing, and professional ethics. It highlights how literature provides unique insights into the legal profession and advocates for its integration into legal education and practice to enhance ethical understanding and communication skills.

Diversity Combining In Fh/Bfsk Systems To Combat Partial Band Jamming, R. Viswanathan, Kashfieh Taghizadeh

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For a FH/BFSK system, a new type of combiner termed the product combining receiver (PCR) is investigated. The performance of the PCR is evaluated for the cases of on/off partial band noise with optimum jamming fraction, and worst case partial band tone jamming. The performance of PCR is shown to be comparable to that of the clipper receiver. The effect of diversity combining along with convolutional coding and ratio threshold technique is also analyzed. Whereas the clipper requires the knowledge of signal-to-noise ratio for threshold adjustments, the PCR does not require this knowledge for its operation.

Lawyers And Informal Justice: The Case Of A Public Housing Eviction Board, Richard O. Lempert, Karl Monsma

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When lawyers think of civil procedure they almost invariably think of the rules of civil procedure and the formality they entail. A course in civil procedure focusing almost exclusively on the Federal Rules of Civil Procedure is in most law schools part of the traditional first-year curriculum. Indeed some would argue that it is at the core of that curriculum, for more than any other first-year course it takes students away from familiar moral anchors and instructs them in a set of distinctively legal practices and values. The ability to manipulate the legal system's rules of procedure is the most …

Optimal Serial Distributed Decision Fusion, R. Viswanathan, S. C. A. Thomopoulos, R. Tumuluri

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The problem of distributed detection involving N sensors is considered. The configuration of sensors is serial in the sense that the (j - 1)th sensor passes its decision to the jth sensor and that the jth sensor decides using the decision it receives and its own observation. When each sensor employs the Neyman-Pearson test, the probability of detection is maximized for a given probability of false alarm, at the Nth stage. With two sensors, the serial scheme has a performance better than or equal to the parallel fusion scheme analyzed in the literature. Numerical examples illustrate the global optimization by …