Digital Commons Network^™

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 …

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

Faculty Articles

No abstract provided.

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 …

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.

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 …

Past And Future: The Temporal Dimension In The Law Of Property, Richard A. Epstein

Faculty Articles

All human interactions, and hence all legal rules, have a temporal dimension. Offer precedes acceptance; cause precedes effect; parents are born before their children. It is unremarkable for the entitlements of today to depend upon the events of yesterday. It would be inconceivable for them to depend upon the events of tomorrow. Time marches on, and in one direction, forward. When Kant said that time and space are fundamental categories for organizing all human experience, he spoke as much about the law as he did about physics, biology or history. This paper deals with time in two separate senses. In …

The Temporal Dimension In Tort Law, Richard A. Epstein

Faculty Articles

The substantial role of these frictions in real-world disputes is evident enough to judges, lawyers, and clients alike. Indeed, it is the thesis of this article that within the class of rules that appear plausible on incentive and corrective justice grounds, administrative and error costs routinely should play a dominant role in the shaping of legal rules, not only of evidence and procedure, but also of substantive tort law. The telescope does not show us all the proper answers; for those we must look to the microscope. The enterprise of figuring out how these costs influence the substantive shape of …

Unpacking The Court, Lewis A. Kornhauser, Lawrence G. Sager

Faculty Articles

In this Article, we offer some observations about the attributes of multijudge courts and their relationship to basic themes in the theory of adjudication. While this first venture falls short of a comprehensive theory, it involves considerably more than minor tinkering with conventional understandings of adjudication. Our effort to incorporate the fact of group decisionmaking into analysis of the judging process has led us to generate a fundamental distinction between "preference aggregation" and "judgment aggregation" in processes of group decisionmaking, to reconsider the traditional taxonomy of schools of jurisprudence in terms of this distinction, to reflect on the idea of …

Patent Exploitation And Modern Antitrust Law: A Special Case For Merger Analysis, Barry E. Adler

Faculty Articles

The licensing of patents and the marketing of patented products run afoul, at times, of the antitrust laws. Exploitation of a patent has characteristics similar to the exploitation of monopoly power. The courts have established a rather odd set of rules to limit patent exploitation. The United States Supreme Court, in particular, has applied various, sometimes contradictory, rationales in its rulings. Part I of this article describes some of the Supreme Court case law in this area and offers an alternative economic analysis of patent exploitation. It concludes that the Court, in general, has treated the marketing of patented products …

Dethroning Lear: Licensee Estoppel And The Incentive To Innovate After Medimmune, Rochelle C. Dreyfuss

Faculty Articles

The article discusses the U.S. Supreme Court's decision on the lawsuit filed by MedImmune Inc. against Genentech Inc. It reveals that the court's ruling reverses its decision made on a patent suit involving Lear which allowed a licensee in good standing to challenge the validity of a licensed patent. The author also examines the impact of shifting the risk of invalidation to patents, such as reducing their incentives to invest on innovations.

Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur

Faculty Articles

This Article proceeds as follows. Part I examines the legislative history of the Sherman Act to discover the policy choices actually made by the 1890 Congress. Part II sketches the development, operation and social costs of the conventional "constitutional" approach which now dominates section 1 adjudication. This Part demonstrates how the Supreme Court's failure to establish a workable methodology for resolving hard cases in the first Sherman Act decisions enabled it later to create the myth that the 1890 Congress made no hard policy choices. It then shows that the lack of a recognized statutory standard inevitably leads to doctrinal …

"The Defects Of Better Motives": Reflections On Mr. Meese's Jurisprudence Of Original Intention, Harry F. Tepker

Faculty Articles

No abstract provided.

Oklahoma's At-Will Rule: Heeding The Warnings Of America's Evolving Employment Law?, Harry F. Tepker

Faculty Articles

No abstract provided.

A Uniform Rule Governing The Admission And Practice Of Attorneys Before United States District Courts, Michael S. Ariens

Faculty Articles

The increase in the interstate and international practice of law necessitates a review of the rules governing the admission of attorneys to practice before federal district courts. By virtue of the sweep of their jurisdictional net, federal district courts are likely to be the fora for litigating most interstate or international disputes. The present rules, based upon the antiquated notion that lawyers only rarely practice law in federal district court, and then only in the federal district court located in the state in which they practice, do not address this change in the practice of law.

For these reasons, a …

The Parenting Tax Penalty: A Framework For Income Tax Reform, Charles O'Kelley

Faculty Articles

Part I considers the proper tax treatment of out-of-pocket parenting expenses such as the costs incurred in providing food, clothing, shelter, and other goods and services to children for their consumption. Part I first characterizes the principal design alternatives to the present flat dependency deduction. It then examines the dominant accretion definition of income and concludes that the current flat dependency deduction is more consistent with the accretion concept and our actual governing beliefs than any of the alternatives advocated by its critics. Part II considers the tax relevance of imputed income from self-performed services. It explains (1) how the …

"Phoenix Rising" And Federalism Analysis, David Skover

Faculty Articles

The reaction to the Supreme Court's ruling in Garcia v. San Antonio Metropolitan Transit Authority leaves the decided impression that Garcia is a case of some importance, a milestone in the evolution of the constitutional doctrine of federalism. Whether Garcia will mark a radical shift in the jurisprudence of federalism, with major practical ramifications in the balance of federal and state economic regulatory powers, or whether the case is destined for a quick and unceremonious overruling is a question of some moment. This article evaluates the probable significance of Garcia for the development of the constitutional doctrine of federalism.

American Health Policy In The 1980'S, Ken Wing

Faculty Articles

The author notes that the composition of the 'fundamental problem" of rising health care costs is not easily defined. The varying interests of providers, consumers, and the government's budget diverge and overlap in a weblike maze, creating multifarious and fractured perspectives regarding what actually constitutes the problem. Consequently, no underlying ideological thread in American health care policy has emerged to direct a unified response to the 'fundamental problem." It is in this political context that American health care policy of the 1980's will be shaped. Professor Wing has undertaken an exhaustive review of both health care cost data and the …

Symbol And Substance In The Minority Professoriat's Future, Henry Mcgee

Faculty Articles

Professor McGee addresses the issues faced by minority professors. In an environment that is mostly white, the minority professor is confronted with problems simply by being present on campus. The minority professor also faces significant dilemmas with respect to his/her own community. As increasing numbers of minorities fall farther below the national socio-economic and social indicators, and racial isolation deepens and becomes more pervasive, the minority law professor becomes estranged from his/her own community.

Dualistic Legal Phenomena And The Limitations Of Positivism, Gregory Silverman

Faculty Articles

Often, in a case of first instance, a judge will reach a decision by an appeal to legal principles. For example, in the 1889 case of Riggs v. Palmer a New York court had to decide whether a grandson who had murdered his grandfather could inherit under the will in which his grandfather had named him an heir. The statutes and rules of testamentary law did not prohibit the inheritance. The court, however, invoked the legal principle that no one should be permitted to profit by his own wrong and denied the claim to inheritance. The use of such principles …