Digital Commons Network^™

Criminal Law And Procedure, David A. Schlueter

Faculty Articles

The Fifth Circuit Court of Appeals annually decides , or in some other way disposes of, several hundred cases which might be considered to fall within the topic of criminal law and procedure. Several conclusions can be drawn from the cases decided by the Fifth Circuit Court of Appeals during this survey period.

First, the court continues to adhere to a posture which reflects trust in the trial and pretrial process. That is, like most appellate courts, it views its role not as simply another forum for correcting all of the mistakes that have occurred in either the pretrial or …

Reflections On Section 402a Of The Restatement (Second) Of Torts: A Mirror Crack’D, Charles E. Cantú

Faculty Articles

Section 402A of the Restatement (Second) of Torts forever changed the means by which an individual would be held liable for placing defective products into the stream of commerce. Strict liability, which had previously been restricted to cases involving dangerous activities and wild animals, became a new cause of action in almost all product cases. As a result, this section of the Restatement has been a catalyst to a multitude of litigation. More causes of action have been brought alleging strict liability for injuries caused by a defective product than in any other area of tort law.

Now that almost …

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 …

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 …

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 …

Causation—In Context: An Afterword, Richard A. Epstein

Faculty Articles

The four principal papers in this symposium illustrate the rich diversity of approaches that may be taken toward the question of causation- long and rightly regarded as one of the central issues in the law. In this afterword, I shall address myself to some of the recurrent questions of causation that intrude themselves into the legal, economic and philosophical account of the subject. The purpose of this paper is to give some indication of the proper place that causation has in a comprehensive theory of tort law, indeed of civil obligation. The task, then, is to place causation back into …

The Creative Employee And The Copyright Act Of 1976, Rochelle C. Dreyfuss

Faculty Articles

Debates on issues in copyright law have long exhibited a clash between alternative visions of the goal that copyright seeks to achieve. One group sees copyright as a means for enhancing the creative environment and so tends to suggest resolutions of open issues that are highly attuned to the interests of authors. Another camp takes an economic approach centered on questions of public welfare. Under this view, public access emerges as a central concern, and the rights of authors are thought protectable only insofar as they are necessary to stimulate the optimal level of innovative production. Ralph Brown has recently …

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 …

Do We Need A Parent-Child Privilege, David A. Schlueter

Faculty Articles

This article addresses proposals to adopt a parent-child privilege, and notes that currently incriminating statements made between parents and children are admissible as evidence. However, there is a popular move to urge codification of a parent-child privilege that would protect any statements made or actions observed within the parent-child relationship. Evidentiary privileges are generally disfavored because they potentially block otherwise relevant evidence, but some relationships, such as the parent-child relationship, deserve assurance that shared confidences will be protected.

To overcome the reluctance to adopt yet another privilege, proponents of the parent-child privilege typically offer a number of justifications. These include …

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 …

Counsel For The Accused: Metamorphosis In Spanish Constitutional Rights, Henry Mcgee

Faculty Articles

The article begins with a discussion of the social and political background that influenced the emergence of the constitutionally guaranteed right to counsel in Spanish law. Next, it traces the constitutional development and legislative refinements of the right to counsel. It then considers judicial refinements of that right. The article concludes with a comparison of the Spanish process of articulating the right to counsel with the parallel process in the United States and what such differences bode for U.S. scholars.

Determining Customary International Law Relative To The Conduct Of Hostilities In Non-International Armed Conflicts, James E. Bond, William J. Fenrick, Hans-Peter Gasser, Waldemar A. Solf

Faculty Articles

In 1987, the 6th annual American Red Cross-Washington College of Law Conference on International Humanitarian Law convened to discuss the 1977 Protocols Additional to the 1949 Geneva Conventions. This article outlines the proceedings of the various workshops, serving as a richly detailed scholarly source for a significant historical event.

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 …

Employee Innocence And The Privileges Of Power: Reappraisal Of Implied Contract Rights, William Murray Tabb

Faculty Articles

No abstract provided.

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.

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 …

“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. …

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 …

Effect Of Television Programming And Advertising On Alcohol Consumption In Normal Drinkers, Linda C. Sobell, Mark B. Sobell, Diane M. Riley, Felix Klajner, Gloria I. Leo, Daniel Pavan, Anthony Cancilla

Faculty Articles

The drinking behavior of 96 male normal drinking college students was assessed after they viewed a videotape of a popular prime-time television program complete with advertisements. Different versions of the videotape were used to evaluate the effects of a television program with and without alcohol scenes as crossed with the effects of three different types of advertisements (i.e., beer, nonalcoholic beverages and food). After viewing the videotape, the subjects, who were led to believe that they were participating in two separate and unrelated sets of experimental procedures, were asked to perform a taste rating of light beers, which actually provided …

A Truly Elementary Approach To The Bounded Convergence Theorem, Jonathan W. Lewin

Faculty Articles

No abstract provided.

Looking A Gift-Horse In The Mouth: Some Observations And Suggestions For Improving Internal Revenue Code Section 1244, Henry F. Johnson, Mark W. Cochran

Faculty Articles

Most investors who contemplate a new business venture concentrate on the positive financial aspects of the business. Few investors realize that a thorough tax plan for a prospective business must also account for the contingency of failure. Since the failure of a business venture will, in some way, result in a taxable event, the conscientious corporate planner must devise a strategy that will utilize the losses incurred in order to achieve the most advantageous tax result. Internal Revenue Code section 1244 is not new, not particularly complex, and not fraught with misfortune for taxpayers failing to meet its provisions. This …

Takeover Defense Tactics: A Comment On Two Models, Jeffrey N. Gordon, Lewis A. Kornhauser

Faculty Articles

One of the most important debates of current corporate law practice and scholarship is about the appropriate role of target management confronted with a takeover bid. The controversy turns on the identification of a criterion for evaluating takeovers and target management defensive tactics. An influential body of opinion contends that maximization of shareholder wealth is the appropriate criterion because, first, traditional notions of fiduciary duty generally require managers to act in the shareholders' interest, and, second, shareholder wealth maximization is seen as the best available proxy for social wealth maximization. On this view, takeovers are desirable because they can increase …

An Outline Of Takings, Richard A. Epstein

Faculty Articles

This issue of the University ofMiami Law Review is devoted principally to the proceedings of a Conference, which Professor Larry Alexander organized on my book, Takings: Private Property and the Power of Eminent Domain. The Conference was held in late January 1986 at the University of San Diego Law School. The arguments that surged to and fro in those sessions were among academics who had a close familiarity with the book, the structure of its argument, and the direction of its conclusions. In order to make that discussion more intelligible to the reader not familiar with Takings itself, the editors …

A Last Word On Eminent Domain, Richard A. Epstein

Faculty Articles

The discussion at the Conference, and the papers written in connection with it, raise many issues on which it seems appropriate for me to comment in closing. It is quite impossible to give a detailed response to each individual objection or to each author, so I plan instead to discuss only the most critical questions here. For ease of exposition I divide my remarks into two classes. In the first part, I examine criticism of my point of view as a matter of political theory. In the second part, I look at some of the more particular challenges to my …

Monopolization And Dominance In The United States And The European Community: Efficiency, Opportunity, And Fairness, Eleanor M. Fox

Faculty Articles

In 1890 the United States Congress enacted the Sherman Antitrust Act, which, in section 2, prohibits monopolization. In 1957 Western European nations ratified the Treaty of Rome, which, in article 86, prohibits abuse of a dominant position. In this article I examine the major European Court of Justice judgments regarding abuse of a dominant position, and the EC Commission proceeding against IBM. I compare the analysis and outcomes with U.S. law. Finally, I suggest some lessons that each system of law might hold for the other. In searching for lessons, I consider recent efforts within the United States to collapse …

Title Insurance Companies' Liability For Failure To Search Title And Disclose Record Title, Joyce Palomar

Faculty Articles

No abstract provided.

Was New York Times V. Sullivan Wrong?, Richard A. Epstein

Faculty Articles

The question on everyone's lips is: What went wrong? Why a winter of discontent after a springtime of unrestrained joy? In part the problems may have little to do with any of the rules of defamation. The law of tort is far more active today than it was a generation ago, as we have witnessed a continued expansion of liability and escalation of verdicts in such areas as medical malpractice and products liability. The shifts in defamation could simply reflect the larger social trends in other areas, and have little to do with what the Supreme Court did to the …

Reconstitutive Law, Richard B. Stewart

Faculty Articles

Much contemporary debate on social and economic policy is based on a false dilemma. It is often assumed that we have two basic choices. The first is continued reliance on the existing costly and clumsy system of centralized regulatory directives to achieve national social and economic goals. The other is to deregulate and devolve authority to markets and states in order to promote decentralization, diversity, and innovation at the expense of national goals. This essay advocates greater reliance on a third approach: adoption by the federal government of new reconstitutive regulatory strategies that simultaneously promote national goals, decentralize decisionmaking, and …