Digital Commons Network^™

Solicitation Of Law Firm Clients By Departing Partners And Associates: Tort, Fiduciary, And Disciplinary Liability, Vincent R. Johnson

Faculty Articles

May a departing attorney, with or without firm consent, contact clients of the firm, in person or in writing, for the purpose of soliciting their present and future legal business? This is the question being asked because in recent years there has been a marked increase in the number of attorneys switching firms, many of whom seek to take with them the business of their former firm’s clientele. While the contours of permissible departure-based solicitation were once clearly and narrowly circumscribed by the rules of legal ethics, the continued validity of those restrictions is seriously placed in doubt by the …

The Paradox Of A Title: Discrimination Within The Anti-Discrimination Provisions Of The Immigration Reform And Control Act Of 1986, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Nonmajority Rules And The Supreme Court, Richard L. Revesz, Pamela S. Karlan

Faculty Articles

This Article examines disputes over two important internal procedures: the "Rule of Four," which governs the Court's selection for plenary review of cases on its discretionary docket; and the "hold" rule, or "Rule of Three," which postpones decisions on petitions for certiorari or jurisdictional statements pending disposition of a case already given plenary review. While the existence of the Rule of Four has been known publicly at least since 1925 and the Justices have frequently debated its scope, the hold rule was not explicitly discussed by the Court until the 1985 Term, and it was not until the 1986 Term …

Law, Science, And History: Reflections Upon In The Best Interests Of The Child, Peggy C. Davis

Faculty Articles

"GoldsteinFreudandSolnit" is a common term in the parlance of lawyers concerned with child custody and parental rights. It evokes a familiar set of beliefs about child development and child placement decisionmaking. The term is regularly intoned in family proceedings as authority for the view that assuring continuity of care should be the virtually exclusive criterion for child placement determinations. It is invoked to urge a process of identifying the adult with whom a child is primarily bonded - the child's "psychological parent" - and protecting the permanence and autonomy of the psychological parent-child relationship. Goldstein, Freud, and Solnit have promoted …

Controlling Environmental Risks Through Economic Incentives, Richard B. Stewart

Faculty Articles

Our current environmental regulatory programs rely almost entirely on legal rules and orders to control pollution, toxic wastes, chemical hazards, and other harmful byproducts of industrialization. A detailed, elaborate and ever-growing set of federal regulations govern the air and water pollution released from hundreds of thousands of industrial sources and millions of automobiles, the hazardous wastes resulting from over a million generators, and the risks posed by thousands of pesticides and other chemical products. The inevitable drawbacks of this command and control regulatory strategy are increasingly apparent: excessive bureaucratic centralization, rigidity, cost, litigation and delay. The only apparent cure for …

The Classical Legal Tradition, Richard A. Epstein

Faculty Articles

In this brief paper I want to address the influence that the classical legal tradition has had upon the development of public law in general, and modem American constitutional law in particular. In so doing, I shall concern myself with this question as it relates to the protection of private property and economic liberties. In some sense it might seem improbable to chart a course from the early Roman and classical writers to the present day. But I do think that the journey can be made, and that it discloses some interesting, if unanticipated insights, along the way.

A Tale Of Two Habeas, Barry Friedman

Faculty Articles

This Article sets out the rationale for the expansion of the scope of the writ that the Brown Court neglected to provide, thereby permitting an untangling of confused habeas doctrine and focusing debate on the pertinent questions concerning federal habeas review. The Article's thesis is that the Court expanded the scope of the writ of habeas corpus in Brown because the Court recognized that it no longer could shoulder the burden on direct review of scrutinizing constitutional claims arising in state criminal proceedings. Accordingly, the federal habeas courts were to act as surrogates for the United States Supreme Court through …

Covenants And Constitutions, Richard A. Epstein

Faculty Articles

Covenants and constitutions: strange bedfellows, but more than alliteration unites them. In this brief paper I shall explore the relationship between them. In order to orient the discussion, my use of the term "covenants" includes all forms of servitudes, easements, and restrictions that one person can place on another's lands. "Constitutions" are the documents that identify and entrench the fundamental law of a state or nation, on matters of both structure and individual rights.

Workable Antitrust Law: The Statutory Approach To Antitrust, Thomas C. Arthur

Faculty Articles

This Article will demonstrate the superiority of the statutory approach for producing more stable and consistent antitrust law. Part I details the development of the constitutional approach to antitrust, demonstrating how the rise of the pragmatic and instrumentalist view of law led to the displacement of the original statutory approach to antitrust. Part II illustrates that the constitutional approach fundamentally cannot produce workable antitrust law. It summarizes both the doctrinal disarray that continues to plague each major area of antitrust law and the irreconcilable policy prescriptions of the contending antitrust "schools." Part III presents an alternative, statutory approach to antitrust …

Law And Mystery: Calling The Letter To Life Through The Spirit Of The Law Of State Constitutions, Emily A. Hartigan

Faculty Articles

If law is anything today, it is dispirited. It lacks life, vitality, enchantment, and vision. Neither law nor its practitioners sing—or even hum. However, there is something more, already present in America’s state constitutions if practitioners dare turn to hear it. It is the voice of the spirit of the laws of the land. It sings of a vision.

There is a strain of constitutional law, anchored by actual judicial language about the spirit of law, which participates in the discourse identified in two key law review articles—Suzanna Sherry’s “The Founders’ Unwritten Constitution,” and Thomas Grey’s “Origins of the Unwritten …

Tacit Exclusion: Defining Code Terms Using Extraneous Referents, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

Ethical Issues For Corporate Counsel In Internal Investigations: A Problem Analyzed, Drew L. Kershen

Faculty Articles

No abstract provided.

Toward Domestic Recognition Of A Human Right To Language, Bill Piatt

Faculty Articles

There is no clearly defined “right to language” in the United States. Yet, there do exist sources of such a right. For example, a constitutionally protected right to express oneself or receive communications in a language other than English is supported by a number of federal court decisions. Further, there may be a first amendment right to receive broadcast programming in languages other than English, and some federal statutes even provide a guarantee of the exercise of language rights in a number of public and civic contexts.

In spite of these sources for a right to language, it is an …

When Soldiers Are Defendants, David A. Schlueter

Faculty Articles

In O’Callahan v. Parker, the U.S. Supreme Court adopted a “service connection” requirement for court-martial subject matter jurisdiction. For almost two decades that requirement caused numerous problems of interpretation and application. In Solorio v. United States, the Court overruled its decision in O’Callahan. While assigned to a Coast Guard unit in Juneau, Alaska, the accused committed numerous acts of sexual abuse against two minor daughters of other Coast Guard members. The crimes were not discovered, however, until after he had been transferred to Governors Island, New York, where he committed additional acts of sexual abuse on other daughters of Coast …

Cadillacs, Gold Watches, And The Tax Reform Act Of 1986: The Continuing Evolution Of The Tax Treatment Of Gifts To Employees, Mark W. Cochran

Faculty Articles

To eliminate uncertainty for taxpayers and inconsistency from the courts, Congress passed the Tax Reform Act of 1986, which is applicable to “gifts” from employers to employees. Congress added three Internal Revenue Code provisions applicable to such gifts. First, Section 102 sets forth a general rule that property transferred by an employer to an employee shall not be excluded from the employee’s gross income as a gift. Second, Section 74 potentially excludes certain retirement awards. Third, Section 274 limits an employer’s deductions for such retirement awards. These three provisions should mark the end of many years of uncertainty for taxpayers …

The Future Of Liberal Legal Scholarship, David Skover, Ronald Collins

Faculty Articles

Earl Warren is dead. A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed. The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." The author’s present their views as a commentary to emphasize their preliminary character; they represent thier current assessment of where liberals stand and where they might redirect their energies. In Part I, they outline the reasons for believing that there …

Reconstituting 'Original Intent:' A Constitutional Law Encyclopedia For The Next Century, David Skover

Faculty Articles

In this article Professor Skover reviews the Encyclopedia of the American Constitution. The Encyclopedia describes, in a fairly balanced and accurate manner, the contemporary understanding of the American constitutional heritage. The Encyclopedia exhibits the important functions that an encyclopedic work may serve in the legal culture of the twenty-first century. This review essay explores this thought. Part I describes the Encyclopedia's organizational structure, the interdisciplinary nature of its commentaries, and the divergent characters of its contributors. Part II considers the potential for its use and explores its role as the record of "original intent" for this century's constitutional "founders."

Direct Broadcast Satellite: A Proposal For A Global/Regional System, Bryan Adamson, James Hsuing

Faculty Articles

The purpose of this article is to discuss the possibility of establishing a global/regional direct broadcast satellite (DBS) system. Albeit, in the past, there have been a number of initiatives aimed at forging a unified global DBS system, such initiatives have not been successful. The most significant barriers (political, rather than technical in nature) existing in the international negotiating arenas were spillover, equal access, privacy, national sovereignty, the free flow of information, prior consent, and cultural invasion. Although not all of these issues have been fully resolved, the time has come again for seriously considering the implementation of an international …

The Constitutionality Of The Solicitation Or Control Of Third-Country Funds For Foreign Policy Purposes By United States Officials Without Congressional Approval, George Van Cleve

Faculty Articles

This transcription of a speech covers the personal views of Professor Van Cleve regarding constitutionality of solicitation or control of third-country funds for foreign policy purposes. Specifically, he discusses the constitutional issue of the Iran-Contra affair, in which the Reagan administration decided to seek funding for the Contras from third countries.

The Parent-Child Privilege: A Response To Calls For Adoption, David A. Schlueter

Faculty Articles

A popular move to recognize and codify a parent-child privilege has surfaced, despite rejection by a majority of the courts that have considered the issue. Reminded of the horrors accompanying totalitarian systems that require children to testify against their parents, some commentators have asserted that adoption of such a privilege will promote the success of the family relationship in this country and avoid the trauma of family members testifying against each other at trial.

The momentum for adopting a parent-child privilege seems to have been generated by a few courts and a number of commentators who see the privilege as …

Audiovisual Enhancement Of Classroom Teaching: A Primer For Law Professors, Vincent R. Johnson

Faculty Articles

It is increasingly hard to avoid the idea that audiovisual techniques are appropriate—if not essential—to the contemporary law school classroom. Audiovisual aids are already widely employed in the practice of law, continuing legal education, and in most fields of higher and professional education. Yet, what little empirical evidence exists suggests that modern media techniques have had little impact on the traditional law school classroom. Thus it is relevant to ask whether and how audiovisual media can effectively augment the teaching of standard substantive law courses.

Wilder V. Bernstein: Squeeze Play By Consent Decree, Richard A. Epstein

Faculty Articles

The distinction between binding strangers and compromising their interest by consent decree is critical for understanding the protracted litigation in Wilder v. Bernstein. The consent decree entered by the American Civil Liberties Union ("ACLU") and the City of New York in Wilder v. Bernstein, represents a case where the parties to the consent decree labored with considerable success to impose substantial costs upon third parties, here chiefly Catholic and Jewish charities with whom the City had long done business. It is therefore useful to discuss the case briefly to give some sense of the dangers (some might say possibilities) that …

The Fifth Amendment At Justice: A Reply, Stephen J. Schulhofer

Faculty Articles

Mr. Markman's response to "Reconsidering Miranda" misses the article's central point, which was to offer a theory of fifth amendment compulsion and to consider the legitimacy of Miranda within the framework of that theory. Mr. Markman has no theory, and he makes no effort to explain why mild pressures and small financial penalties sometimes constitute compulsion. He invites us to treat police interrogation as a category unto itself and to hold permissible some pressures that would be found compelling outside the custodial setting. He declines even to consider whether his less protective notion of compulsion is justified by differences in …

Reconsidering Miranda, Stephen J. Schulhofer

Faculty Articles

Few decisions of the Warren Court have attracted as much attention and controversy as its 1966 ruling in Miranda v. Arizona. Miranda relied upon the fifth amendment privilege against compulsory self-incrimination to impose limits on custodial police interrogation. The Court was vilified for "handcuffing the police" and for "favoring the criminal forces over the peace forces." Recently Miranda has become the focus of renewed debate. The Department of Justice, in a 120-page report endorsed by Attorney General Edwin Meese III, attacks the Miranda decision as an illegitimate act of judicial policy-making that the Court should now overrule. It is not …

“Oil, Gas, And Other Minerals” Clauses In Texas: Who’S On First?, Laura H. Burney

Faculty Articles

Stability and certainty of land titles encourages development of mineral resources and means individuals need not resort to judiciary for interpretation. Unfortunately, uncertainty prevails because Texas courts complicate the interpretive process and frequently need the assistance of nonlegal sources for comparison, explanation, and enlightenment. Clarity demands that courts adopt a definition of the “ordinary and natural meaning” test similar to that proposed by Dean Eugene Kuntz; burying the surface destruction test by retroactively applying the former.

The surface destruction test produced a title examiner’s nightmare. Despite the Texas Supreme Court’s determination to rectify this in Moser v. United Steel Corp. …

The Permissible Scope Of Texas Automobile Inventory Searches In The Aftermath Of Colorado V. Bertine: A Talisman Is Created, Gerald S. Reamey, Michael H. Bassett, John A. Molchan

Faculty Articles

The fourth amendment to the United States Constitution guarantees freedom from unreasonable searches and seizures. The warrant and probable cause requirements advance this constitutionally implied privacy right. However, with respect to automobile searches, strict adherence to these safeguards has been eschewed in favor of more flexible, and arguably less protective, versions of reasonableness.

In 1981, in Gill v. State, the Texas court addressed the permissible scope of inventory searches, holding that the police may not search the locked trunk of an automobile while conducting an inventory search. Despite the simplicity of the Gill rule, a number of recent cases, while …

Revocation Of Academic Degrees By Colleges And Universities, Bernard D. Reams Jr.

Faculty Articles

Recently, courts have decided that private and public colleges and universities can revoke degrees due to academic dishonesty. A university's authority to revoke degrees is supported by a logical extension of its conferral power, "black letter" contract law, and the precedential authority of Crook v. Baker, Waliga v. Board of Trustees of Kent State University, and Abalkhail v. Claremont University Center.

Although colleges enjoy great discretion in deciding whether to confer degrees, once the college grants a degree, its discretion to revoke that degree is governed by due process guidelines. In Crook, the university involved was public, triggering the applicability …

Should Personal Injury Damage Awards Be Taxed?, Mark W. Cochran

Faculty Articles

The exclusion of personal injury damage awards from gross income is inconsistent with established principles of taxation. Section 104(a)(2) of the Internal Revenue Code excludes from gross income “the amount of any damages received . . . on account of personal injury or sickness.” While the existence of Section 104(a)(2) traditionally has been justified as a humanitarian gesture, more logical explanations have been offered.

Damage awards cannot accurately be characterized as a return of capital. Nor does the involuntary nature of the transaction justify the exclusion. While so-called imputed income is not taxed, the reasons supporting its non-taxability do not …

The Infield Fly Rule And The Internal Revenue Code: An Even Further Aside, Mark W. Cochran

Faculty Articles

Baseball’s infield fly rule and certain provisions of the Internal Revenue Code are similar. The purpose of the infield fly rule is to prevent the defense from making a double play by subterfuge, at a time when the offense is helpless to prevent it.

In baseball, as in life, fairness is an elusive concept that defies precise definition. Considering the infield fly rule, the “unfairness” derives from the infielder’s ability to manipulate a situation without incurring any risk. Federal tax law, like the rules of baseball, recognizes and responds to the “manipulation without risk” phenomenon. Section 267 of the Internal …

Antitrust Implications Of Municipal Land Use Planning, Victoria M. Mather

Faculty Articles

Congress enacted the Local Government Antitrust Act of 1984 in response to outcomes in many well-publicized cases and from widespread criticism of the state action doctrine as applied by the courts. The state action exemption as used by the courts today is riddled with analytical and practical problems. The Local Government Antitrust Act of 1984 shields municipal governments from monetary damage awards for violations of antitrust laws, but the act did not go far enough.

A few state legislatures have either considered or enacted statutes protecting municipalities from state or federal antitrust liability. However, preemption analysis is problematic because it …