Digital Commons Network^™

Blackmail, Inc., Richard A. Epstein

Faculty Articles

Although the crime of blackmail seldom has been the subject of appellate litigation, it has received an extensive analysis within the scholarly literature.1 It might be expected that this analysis would focus upon the traditional concerns of criminal law: mens rea, permissible defenses, burdens of proof, and modes of sentencing. But in fact the query has been posed at a far more fundamental level: why is blackmail a crime at all? The frequent appearance of this question is troublesome, for it implicitly identifies a powerful cleavage between our most cherished instincts about criminal responsibility and our collective ability to justify …

Goals In Life Worth Pursuing, Harry T. Edwards

Faculty Articles

This publication is the reprint of a speech delivered by Judge Edwards at the Tenth Anniversary Banquet of the Florida State University Law Review, held in Tallahassee, Florida on November 12, 1982.

A Common Law For Labor Relations: A Critique Of The New Deal Labor Legislation, Richard A. Epstein

Faculty Articles

During the nineteenth century, the area of labor relations was governed by a set of legal rules that spanned the law of property, contract, tort, and procedure. There was no special set of rules for labor cases as such. Since the advent of the New Deal, these common law principles have largely given way to a complex body of statutory and administrative law that treats labor law as a separate and self-contained subject. The central question in this paper is whether there is any warrant for the special treatment that labor law receives today. I shall concentrate upon the Norris-LaGuardia …

Horse-Tradin': Legal Implications Of Livestock Bidding Practices, Drew L. Kershen

Faculty Articles

No abstract provided.

Title Vii, Equal Employment Opportunity, And Academic Autonomy: Toward A Principled Deference, Harry F. Tepker

Faculty Articles

No abstract provided.

Potential Legal Facilitation Or Impediment Of Wind Energy Conversion System Siting, Richard L. Settle

Faculty Articles

The use of wind to produce energy has ancient roots. Prior to World War II over six million small windmills had been in operation in the United States. Then, during the post-war industrial boom, wind generation of energy was largely abandoned in favor of cheaper, more convenient fossil fuels. In recent years, the rapidly escalating price of imported oil and consequent search for alternative domestic energy sources has generated renewed interest in the utilization of wind energy. Most recently, perhaps most importantly, Congress has mandated that renewable energy sources be given first priority in planning the future of the Pacific …

The Impact Of Reagan-Era Politics On The Federal Medicaid Program, Ken Wing

Faculty Articles

The political future may be difficult to predict with specificity, but surely the level of publicly-sponsored medical care for the poor will be severely reduced in the coming years, leaving millions of poor Americans to rely on the charitable capacity of the nation's health care providers-or simply to go without. What follows is an attempt to support this characterization of Medicaid and its political future. Section I of this article is a description of Medicaid, its structure prior to 1981, and the legal and political history of its development and implementation. In addition to providing the basis for understanding the …

A Comparative Study Of British Barristers And American Legal Practice And Education, Marilyn Berger

Faculty Articles

The conduct of a trial in England is undeniably an impressive undertaking. Costume alone transports the viewer to Elizabethan times. Counsel and judges, bewigged and gowned, appear in a cloistered, regal setting, strewn with leather-bound books. Brightly colored ribbons of red, green, yellow and white, rather than metal clips and staples fasten the legal papers. After comparison with the volatile atmosphere and often unruly conduct of a trial in a United States courtroom it is natural to assume that the British model of courtroom advocacy provides an instructive model for its American counterpart.

Gentrification And The Law: Combatting Urban Displacement, Henry Mcgee, Donald C. Bryant Jr.

Faculty Articles

This article stresses a "push" perspective in its examination of how these legally structured forces have stimulated the return of the gentry to the central urban areas of the United States.

The Perils Of Judicial Statesmanship, James E. Bond

Faculty Articles

This article addresses the issue of what is fit for a Supreme Court Justice to do and whether the Court is acting within its constitutional authority. The United States is a democratic republic in which power flows from the people to elected representatives who remain answerable to the people. By contrast, the Justices sit for life and answer to no one. The Court is thus a profoundly antidemocratic institution. When and how the Court ought to exercise its anti-democratic authority is the only enduring important question in American constitutional law.

Labor Picketing And Commercial Speech: Free Enterprise Values In The Doctrine Of Free Speech, Cynthia Estlund

Faculty Articles

Peaceful labor picketing, once treated as an exercise of freedom of speech, has been implicitly relegated by the Supreme Court to the status of an economic activity subject to extensive regulation. This doctrine should be seriously reexamined, particularly in light of more recent developments giving full First Amendment protection to peaceful non-labor picketing and substantial First Amendment protection to commercial advertising. This Note argues that consumer picketing' that does not coerce the listener is expression entitled to First Amendment protection. In reaching this conclusion, the Note rejects both the argument that labor picketing is inherently coercive and the Court's recent …

An Economic Analysis Of The Choice Between Enterprise And Personal Liability For Accidents, Lewis A. Kornhauser

Faculty Articles

Consider an individual acting on behalf of an enterprise such as a private business or a public agency. During the course of his duties, the individual may injure a third party who bears no contractual relation to the enterprise. Tort law must then allocate the accident cost among three parties: the enterprise, actor and victim. In this Article, I shall assume that while the law has decided to shift the costs from the victim, it must choose between assigning the costs to the enterprise or to the individual. This Article examines a single, important factor relevant to the choice between …

Court-Martial Jurisdiction: An Expansion Of The Least Possible Power, David A. Schlueter

Faculty Articles

This article examines the statutory and judicial developments that have apparently expanded military jurisdiction. Serving as the core for this discussion is the amendment to Article 2, UCMJ, and the Court of Military Appeals’ decision in United States v. Trottier, 9 M.J. 337 (C.M.A. 1980), dealing with subject matter jurisdiction of courts-martial over drug-related offenses by service members.

A Synopsis Of The Federal Juvenile Delinquency Act, William S. Sessions, Faye M. Bracey

Faculty Articles

The Juvenile Justice and Delinquency Prevention Act of 1974 (Act) was passed by the United States Congress on September 7, 1974. The Act amended the Federal Juvenile Delinquency Act (FJDA) which had been virtually unchanged since its enactment in 1938. The Act sets up a procedural framework for the treatment of minors who are within the jurisdictional reach of a federal court due to the commission of an act which contradicts a federal criminal statute.

With a thorough understanding of the original FJDA and its amendments, benefits, required procedures, and a juvenile’s constitutional rights, counsel for a juvenile offender in …

The Writ Of Prohibition In Arkansas, William Murray Tabb

Faculty Articles

No abstract provided.

Taxation, Regulation, And Confiscation, Richard A. Epstein

Faculty Articles

The recent studies on regulation have underscored an emerging truth in the study of law and economics. The traditional modes of classification and analysis no longer suffice to organize the study of legal institutions and legal rules. In a former day it was quite fashionable to place public and private law into rigid, separate compartments, each governed by its own set of rules. Within the area of private law, it was possible to draw sharp and clear lines between contract, tort, property and restitution. Within public law, it was fashionable to study the various techniques of social control in isolation …

The Written Brief For Criminal Cases In Oklahoma, Drew L. Kershen

Faculty Articles

No abstract provided.

Constitutional Law—Presidential Immunity—The President Is Absolutely Immune From Civil Damages Liability For Acts Done Within The “Outer Perimeter” Of His Official Capacity (Casenote), Laura H. Burney

Faculty Articles

The Supreme Court theorized absolute immunity for the President must be found in the separation of powers doctrine. Because of the broad range and sensitive nature of the President's responsibilities, his constant visibility, and the judicial deference he has historically been accorded, the Court concluded in Nixon v. Fitzgerald that civil damages suits would unduly distract the President from his official duties. Furthermore, because the President's actions can affect innumerable people, the Court feared the scrutiny inherent in civil damages suits would be overly intrusive. Accordingly, the Court considered it too difficult to align a particular result with one of …

Acquiring In Personam Jurisdiction In Federal Question Cases: Procedural Frustration Under Federal Rule Of Civil Procedure 4, Marilyn Berger

Faculty Articles

With the adoption of the Federal Rules of Civil Procedure in 1938, Congress finally attempted to provide a uniform standard for exercising personal jurisdiction in federal courts. Despite that attempt, there is currently no uniform method for acquiring personal jurisdiction in federal question cases. A contributing factor to the lack of uniformity is Federal Rule of Civil Procedure 4. This article calls for a uniform personal jurisdiction standard in federal question cases. In so doing, it examines the three ways to acquire personal jurisdiction under Rule 4 and evaluates the adequacy of each method. Because some federal courts rely on …

The Court Years, 1939-1975: The Autobiography Of William O. Douglas, James E. Bond

Faculty Articles

This article is a book review that highlights William O. Douglas’s character and temperament, and suggests these very traits made his legacy on the Court a disappointment. Arguing that Douglas was uncommitted to judicial craft and simply championed cases close to his heart. The article bemoans Douglas’s lack of insight into constitutional adjudication, while noting the volumes anecdotal humor, the article cites the autobiography’s disingenuousness as cause to call it a work of fiction.

Complaints Against The Media: A Comparative Study, Benedict Kingsbury

Faculty Articles

It is inherent in the proper functioning of newspapers, radio and television that they will generate complaints by the public about aspects of their news, entertainment and advertising content. This paper examines the subject matter of these complaints and the rules and procedures by which they are determined. In New Zealand, there are important differences in substance and procedure between the electronic and the printed media in the matter of complaints; comparisons between the different media will be drawn where appropriate, and possible improvements to rules and procedures will be suggested.

In Mitigation Of The Penalty Of Death: Lockett V. Ohio And The Capital Defendant's Right To Consideration Of Mitigating Circumstances, Randy A. Hertz, Robert Weisberg

Faculty Articles

Examines the significance of the U.S. Supreme Court case, Lockett versus Ohio, for the right of capital defendants to sentencer consideration of mitigating circumstances. Background of the Court's death penalty decisions; Implications of the Lockett decision for the right of the capital defendant to present mitigating circumstances of character, record and offense; Problems of applying Lockett to other state statutes.