Digital Commons Network^™

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 …

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

Faculty Articles

No abstract provided.

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 …

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

What We Talked About When We Talked About Ethics: A Critical View Of The Model Rules, Stephen Gillers

Faculty Articles

The bar has drafted a code that proves the wisdom of its own precept against client-lawyer conflicts. The lawyers who approved the Rules looked after their own. They have given us an astonishingly parochial, self-aggrandizing document, which favors lawyers over clients, other persons, and the administration of justice in almost every line, paragraph, and provision that permits significant choice. It is internally inconsistent to the bar's benefit. It continues the practice of using the language of ethics to mask controls on the availability of legal services that in turn artificially inflate the cost of the services. True, the Rules read …

Commercial Rationality And The Duty To Adjust Long-Term Contracts, Clayton P. Gillette

Faculty Articles

I suggest in this Article an explanation, and in large part a justification, for the courts' reluctance to embrace the theories of adjustment. My argument reflects a substantial doubt, which I believe is shared by the decisions, that the imposition of a duty to adjust mirrors commercial reality, social utility, or individual right. I recognize, as do advocates of a duty to adjust, that contractual expression is necessarily fragmentary due to the incapacity of commercial actors to foretell completely events that might disrupt original expectations. My disagreement with adjustment advocates lies in the conclusions that follow from this premise. From …

Theory And Fact In The Law Of Accidents, Lewis A. Kornhauser

Faculty Articles

Review of Compensation and Support for Illness and Injury, by Donald Harris, Mavis Maclean, Hazel Genn, Sally Lloyd-Bostock, Paul Fenn, Peter Corfield and Yvonne Brittan, Clarendon Press, 1984.

The Uncertain Quest For Welfare Rights, Richard A. Epstein

Faculty Articles

The growth of government is an oft told tale, and nowhere is that growth more pronounced than in the expansion of government transfers of money, goods, and services to persons in need. These transfers rest on the presupposition that all individuals have a right to personal welfare. This asserted welfare right is typically defined as the right to receive "any form of assistance- monetary payment, good, or service-provided to an individual because of his or her need." The definition does not resolve all concrete cases. It is often difficult to determine in individual cases whether a payment is a pure …

The Original Understanding Of The Fourteenth Amendment In Illinois, Ohio, And Pennsylvania, James E. Bond

Faculty Articles

The fourteenth amendment is a second American Constitution, the "new birth of freedom" for which Lincoln had prayed at Gettysburg. It nationalized the protection of civil liberty and thereby revolutionized the structure of American government. In the three great clauses of its first section it guarantees the privileges and immunities of citizenship, the equal protection of the laws, and due process of law. These guarantees are the bedrock upon which the American regime of individual liberty rests. Stated as principles, these guarantees presumably embodied a particular view of man and his relationship to government. The nature of that view is …

Equal Access To Law (School), Bill Piatt

Faculty Articles

One of the most rewarding aspects of serving on the law faculty at Washburn University School of Law has been the opportunity to recruit women and minority students and to serve as the faculty advisor to the Hispanic American Law Student Association. Following are some of my thoughts regarding the reasons for attracting more women and minorities to the legal profession. The comments relate to a legal education because that is my background; the principles I discuss should be equally applicable to other graduate programs as well.

Tax Policy For Post-Liberal Society: A Flat Tax Inspired Redefinition Of The Purpose And Ideal Structure Of A Progressive Income Tax, Charles O'Kelley

Faculty Articles

A flat rate comprehensive federal income tax could be achieved by replacing graduated rates with a single rate that applies to all taxpayers, eliminating many currently available deductions and credits, and treating as taxable income types of economic gain presently excluded from the tax base. The fact that Congress is seriously considering such radical changes makes it appropriate for tax scholars to reconsider longheld beliefs about the ideal structure of an income tax. This article analyzes the characteristics and underlying rationale of a progressive flat rate comprehensive income tax and reconsiders the nature and purpose of a progressive income tax. …

The Emergency Room Admission: How Far Does The Open Door Go?, Ken Wing, John R. Campbell

Faculty Articles

In recent years many private and some public hospitals have assumed a new proprietary persona, a business-like posture that clashes with the traditional hospital goals of charity and community service. This conflict may be most acute in the emergency room where the hospital may further its financial interests by quickly transferring or discharging undesirable emergency patients. This article explores the extent of a private hospital’s legal obligation to treat a patient once emergency care has begun. It begins by looking at hospital revolutions, emergency rooms, and the standards of emergency care. It then explores the common law and “no duty” …

School Health Services For Handicapped Children: The Door Opens No Further, Joyce Palomar

Faculty Articles

No abstract provided.

Competing Policies In Bankruptcy: The Governmental Exception To The Automatic Stay, William Murray Tabb

Faculty Articles

No abstract provided.

Yellow Pages Legal Ads In Texas: The Complexities Of Dr 2-101(B) & (C), Vincent R. Johnson

Faculty Articles

A Texas lawyer desiring to place an advertisement in the Yellow Pages to offer legal services faces significant obstacles. Not only must he ensure that the ad conveys the correct image of the firm, but he must also comply with a number of specific requirements imposed by the Texas Code of Professional Responsibility. Two of the more dogging Code provisions are subsections (B) and (C) of Disciplinary Rule (DR) 2-101.

Between the requirements of these two subsections, the likely result is that the Yellow Pages ad will be a tangle of disclaimers, provisos, and footnotes if the project is to …

Rethinking Sex And The Constitution, Sylvia A. Law

Faculty Articles

This Article attempts to articulate a stronger constitutional concept of sex-based equality than that which currently exists. The central thesis is that the development of modern constitutional sex equality doctrine has suffered from a lack of focus on biological reproductive differences between men and women. The reality of sex-based physical differences poses a significant problem for a society committed to ideals of individual human freedom and equality of opportunity.

In Defense Of The Contract At Will, Richard A. Epstein

Faculty Articles

In the remainder of this paper, I examine the arguments that can be made for and against the contract at will. I hope to show that it is adopted not because it allows the employer to exploit the employee, but rather because over a very broad range of circumstances it works to the mutual benefit of both parties, where the benefits are measured, as ever, at the time of the contract's formation and not at the time of dispute. To justify this result, I examine the contract in light of the three dominant standards that have emerged as the test …

Toward A Revitalization Of The Contract Clause, Richard A. Epstein

Faculty Articles

This article concentrates on only one of the constitutional provisions that bears on the general topic of economic liberties: the contract clause, which reads: "No State shall .. .pass any . .. Law impairing the Obligation of Contracts . . . ," I wish to defend the proposition that, properly construed, the clause extends substantial protection to economic liberties against legislative, and perhaps judicial, interference. My task in the first part of the article is to explain how and why the Constitution itself commits us to a theory of governance that, to understate the point, leaves to state governments only …

Dictatorship On Trial: Prosecution Of Human Rights Violations In Argentina, Emilio Fermin Mignone, Cynthia Estlund, Samuel Issacharoff

Faculty Articles

Between 1976 and 1983, a military dictatorship ruled Argentina and brought that country into an era of state-directed terror aimed at the civilian population. During that period, a small and vulnerable human rights community, allied with international backers, attempted to stay the hand of the military state and provide a measure of protection for the victims and potential victims of the dictatorship. The struggle was to defend the most elementary of human rights: freedom from arbitrary detention, torture, and summary execution. While the stakes in this struggle were high-life or death for thousands of individuals-it was nonetheless an unfortunately familiar …

Mueller V. Allen: A Fairer Approach To The Establishment Clause, Michael S. Ariens

Faculty Articles

The decision upheld by the United States Supreme Court in Mueller v. Allen helds a new dawn in establishment clause jurisprudence. This five-to-four decision, written for the majority by Justice Rehnquist, upheld a Minnesota statute permitting taxpayers to deduct the tuition, textbook, transportation, and instructional material expenses of their children when calculating their state tax liability. By this decision, the Court has cleared the way for an accommodation between church and state that more equitably recognizes the principles and values that the religion clauses were intended to protect.

Following a review of the history of the establishment clause, tuition tax …