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A Judge's View On Justice, Bureaucracy, And Legal Method, Harry T. Edwards

Faculty Articles

At the recent Inaugural Lecture of the University of Windsor's Distinguished Scholars Program on Access to Justice, my former law teaching colleague, Professor Joseph Vining, delivered a speech entitled Justice, Bureaucracy, and Legal Method. Because, in my view, Professor Vining's address raised some disturbing questions, and some seriously misguided suggestions, about the growth of bureaucracy in the courts and the delivery of justice, I believe that a response is appropriate. With all due respect to the opinions of my good friend, I must say at the outset that I find many of the concerns expressed by Professor Vining to be …

Can The State Of Minnesota Bind The Nation?: Federal Choice-Of-Law Constraints After Allstate Insurance Co. V. Hague, Linda J. Silberman

Faculty Articles

The Supreme Court's recent decision in Allstate Insurance Co. v. Hague invites the conclusion that the federal system is unable to protect itself against state parochialism in the choice-of-law process. By effectively rejecting the possibility of constitutional constraints in conflicts cases, the Court appears to have left itself and the federal system defenseless. The result is at sharp odds with the Court's recent ventures in the field of personal jurisdiction, where it has relied on the principles of fairness and the bounded reach of state sovereignty to fashion limitations on the extensions of a state's legal process. Hague presents conflict-of-laws …

Remedies For Private Intelligence Abuses: Legal And Ideological Barriers, Julie Shapiro, David Kairys

Faculty Articles

Surveillance and intelligence activities by private companies and individuals are not new to the United States; the nuclear power industry's resort to such activities poses new civil liberties and social problems. The extreme danger embodied in nuclear facilities and materials and the fear of "nuclear terrorism" provide the most plausible justification in our history for the wholesale destruction of civil liberties. Ostensibly responding to these dangers, corporate and government agencies have conducted surveillance of and gathered intelligence about opponents of nuclear power. As in the past, the targets of these activities are not terrorists but citizens who nonviolently oppose corporate …

Regulation, Innovation, And Administrative Law: A Conceptual Framework, Richard B. Stewart

Faculty Articles

This Article addresses the interaction between regulation and innovation from the perspective of administrative law, focusing on regulatory tools, institutional arrangements, and government decisional processes. It concludes that productivity problems do not justify abandoning environmental, health, and safety goals. However, it also finds that existing command-and-control regulatory tools must be modified or replaced in order to reduce adverse impacts on market innovation and to provide incentives for social innovation.

A Reappraisal Of The Taxation Of Wealth Transfers Incident To Divorce, John P. Steines Jr.

Faculty Articles

The often attenuated distinction between a wife's right to support from her husband and her property rights in the marital wealth causes excessive uncertainty of tax consequences. Variations in state laws defining the wife's property rights exacerbate the problem, leading to the danger of discriminatory taxation. Not surprisingly, then, the rule in United States v. Davis that the transfer of appreciated property can generate taxable gain to the husband has suffered wide and harsh criticism. Proposals for remedial legislation are numerous. Curiously, critics have relatively seldom discussed the effect of the support-versus-property distinction on the treatment of periodic cash payments; …

The Modernization Of Antitrust: A New Equilibrium, Eleanor M. Fox

Faculty Articles

This Article examines the contention that the antitrust laws should be applied solely to promote efficiency and examines the often unarticulated definitions of efficiency. It addresses two questions: (1) How should efficiency, as it informs antitrust, be defined? and (2) What is the appropriate role of efficiency in antitrust policy and problem-solving? The Article concludes that efficiency defined in terms of serving consumers' long-run interests and implemented by protecting the competition process is and should continue to be a major goal of antitrust, and that the basic socio-political values of antitrust other than smallness for its own sake coincide with …

Corporate Distributions And The Income Tax: A Consideration Of The Inconsistency Between Subchapter C And Its Underlying Policy, Charles O'Kelley

Faculty Articles

The issue of whether the sale of shares to an issuer shall be treated as a dividend or as received in exchange for a capital asset has troubled Congress, courts, and commentators since the Revenue Act of 1913. If a corporation redeems some of its shares or distributes all of its assets in complete liquidation, the transaction is generally described as having the characteristics of a divided to the extent the distribution is ‘out of earnings and profits' and the characteristics of a sale to the extent that it terminates the equity interest of the redeemed party. In light of …

Race, Class, And The Contradictions Of Affirmative Action, Henry Mcgee, Alan Freeman, Derrick A. Bell

Faculty Articles

A panel discussion on "Race, Class, and the Contradictions of Affirmative Action" was held as a part of the Third Annual Conference on Critical Legal Studies on November 10, 1979. Professor Alan Freeman, of the University of Minnesota Law School, convened the panel by setting forth the questions to be discussed and critiquing existing theories that have been offered to address the topic. The questions set forth for the panel was whether racism, although a historically separate and identifiable form of oppression, can be approached and remedied in any substantial way without simultaneously confronting the class structure in general. Can …

Rawls, Justice, And The Income Tax, Charles O'Kelley

Faculty Articles

To the extent the primacy of justice is acknowledged in tax policy debate, such acknowledgment is coupled with the assertion that, of course, questions of justice cannot be meaningfully debated. The discussants then attempt to resolve the issue in question by use of ad hoc arguments of fairness and efficiency. The major purpose of this article is to show that not only is justice the primary issue, but that questions of justice can be meaningfully addressed. First, Professor O’Kelley examines some of the ad hoc arguments of fairness and efficiency which have been made by proponents of a consumption base …

County Court Of Ulster County V. Allen And Sandstorm V. Montana: The Supreme Court Lends An Ear But Turns Its Face, John M. Schmolesky

Faculty Articles

Because criminal verdicts provide no clue as to how the jury reached its decision, jury instructions are crucial indicators of how a deductive device operates. Deductive devices are mechanisms that allow or require the fact-finder to assume the existence of a fact when proof of other facts are shown. Any deductive device, whether permissive or mandatory, has pernicious possibilities that imperil the rationality of fact-finding. The controlling method of review for deductive devices in criminal cases simply require a rational connection between the basic fact and the presumed fact. However, the Supreme Court in Allen broke new ground in exempting …

Rule 3, The Enabling Act, And Statutes Of Limitations, David A. Dittfurth

Faculty Articles

Rule 3 of the Federal Rules of Civil Procedure appears to be a model of simplicity and clarity. It describes the process for commencement of a civil action, and in defining “commencement” appears to provide guidance on how to begin an action which complies with a statute of limitations.

As a result of the decision in Walker v. Armco Steel Corp., that appearance is misleading regarding state statutes of limitations applicable in federal court actions brought on the basis of diversity of citizenship jurisdiction. There, the Court made reference only to state statutes of limitations, and expressly avoided deciding the …

Comments On “Patterns Of Alcoholism Over Four Years”; And A Response, Dan E. Beauchamp, Raymon M. Costello, Rudolf H. Moos, John W. Finney, Peter E. Nathan, William M. Hay, Alan C. Ogborne, E. Mansell Pattison, Mark B. Sobell, Linda C. Sobell, Martin D. Topper, J. Michael Polich, David J. Armor, Harriet B. Braiker

Faculty Articles

No abstract provided.

Policy Considerations In The Taxation Of B Reorganizations, John P. Steines Jr.

Faculty Articles

A transaction in which one corporation (the "acquiring corporation") exchanges its stock for stock of another corporation (the "acquired corporation") is a "B" reorganization if, after the exchange, the acquiring corporation is in control of the acquired corporation.' For federal income tax purposes, B reorganizations are nontaxable to all parties concerned. For many years the view has prevailed that the transfer of any consideration other than stock of the acquiring corporation, "boot," disqualifies the transaction as a B reorganization. That view is premised upon the word "solely" in the definitional section of the Internal Revenue Code, section 368(a)(1)(B). This requirement, …

Unesco's Procedure For Dealing With Human Rights Violations, Philip G. Alston

Faculty Articles

The introduction by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1978 of a new procedure for responding to violations of human rights has been praised as "one of the organization's major achievements" and as being "exemplary within the system of international organizations."' Decision 3.3 was adopted by consensus by the UNESCO Executive Board, following an extensive examination of the procedures used by other international organizations and of the existing UNESCO procedure for the consideration of communications. Under the procedure, individuals, groups, non-governmental organizations, and possibly states, are entitled to petition UNESCO concerning alleged violations of certain human …

Affirmative Action Or Reverse Discrimination: The Head And Tail Of Weber, Harry T. Edwards

Faculty Articles

Although Weber is clearly a case of immense symbolic significance, it is still a very limited ruling. At one point in his opinion, Justice Brennan states: "Congress did not intend to limit traditional business freedom to such a degree as to prohibit all raceconscious affirmative action. We therefore hold that Title VII's prohibition in §§ 703(a) and (d) against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans." Justice Brennan then indicates that there is no need in Weber for the Court to "detail the line of demarcation between permissible and impermissible affirmative action plans." All of …

A Guide To The Perplexed Claims Of Efficiency In The Law, Lewis A. Kornhauser

Faculty Articles

Some scholars of law and economics have advanced a bold theory that transforms the study of law from a complex, hydraheaded investigation of fact and value into a straight-forward application of two "simple" hypotheses: (i) the law should be efficient (the normative claim) and (ii) the law is in fact efficient (the descriptive claim). This Article argues that the simplicity of these two claims is deceptive. While the normative claim reduces to only two variants, the premises supporting them are controversial. The descriptive claim suffers from greater ambiguity: A wide variety of senses may be attributed to the term "efficiency" …

Automobile No-Fault Plans: A Second Look At First Principles, Richard A. Epstein

Faculty Articles

We are now at the end of the first decade of our experience with automobile no-fault plans. Beginning in 1970 and continuing into the middle years of this decade, such plans have been enacted in some twenty-five states. While the enacted plans differ amongst themselves in important detail, they all introduce some system of compulsory first party insurance that provides compensation for the driver and occupants of any given vehicle, regardless of the circumstances which led to the occurrence of the accident in question. Since 1975 or so there has been no new enactment of a state no-fault system, and …

Deciding Who Dies, Stephen Gillers

Faculty Articles

The Constitution does not now prohibit a death penalty. Legislatures may define crimes, conviction of which may lead to death, so long as death is not mandatory. Persons convicted of these crimes have a right to a hearing at which a sentencer decides whether the sentence will be death. A constitutional death penalty law must therefore contain procedures for choosing who will be executed from among those who may be. This Article is about certain of the procedures for deciding who dies. Its subject is who decides who dies. It concludes that the reasoning in United States Supreme Court decisions …

Due Process Of Sentencing, Stephen J. Schulhofer

Faculty Articles

The aspiration for consistency in criminal sentencing decisions is nearly universal. But the complexities of criminal justice administration are likely to defeat most current efforts to see this aspiration fulfilled. This Article explores the principal difficulties and develops a proposal that can bring the goal within reach. My purpose is to suggest the range of procedures necessary to ensure the effectiveness of a concrete reform proposal and then to consider whether a sentencing system so elaborated would indeed serve the values that ordinarily make consistency and formal procedural fairness worthy of pursuit.

The Brethren-Woodward & Armstrong, James E. Bond

Faculty Articles

James E. Bond reviews Woodward & Armstrong’s The Brethren.

Holistic Medicine And Freedom Of Religion, F. Stephen Knippenberg

Faculty Articles

No abstract provided.

The Court-Martial: A Historical Survey, David A. Schlueter

Faculty Articles

In this article, Captain (P) Schlueter describes the development of the legal tribunal known as the court-martial. Beginning with the use of this form of trial in the armies of imperial Rome two thousand years ago, the author traces its evolution through the Middle Ages, to Britain from the Renaissance to the American Revolution. The focus then shifts to the United States, and the focus then shifts to the present day.

Tempia, Turner, Mcomber And The Military Rules Of Evidence: A Right To Counsel Trio With The New Look, David A. Schlueter

Faculty Articles

The potential for litigating right to counsel issues is ripe, and the new Military Rules of Evidence and recent case law ensure ample opportunity for litigation. Several significant developments in the law of military interrogations warrant an examination of a military suspect’s right to counsel. A series of Court of Military Appeals decisions have either clarified or expanded military case law on military interrogations. The pending new Military Rules of Evidence will implement a large amount of military case law, in some instances alter existing law, and more closely align military interrogation practices with prevailing civilian rules. Counsel should focus …

Elimination Of The Conduct Requirement In Government Monopolization Cases, John B. Kirkwood, Alfred F. Dougherty, James D. Hurwitz

Faculty Articles

On July 12, 1978, Professor John Flynn of the University of Utah Law School urged the National Commission for the Review of Antitrust Laws and Procedures (National Commission or NCRALP) to consider recommending that Congress amend section 2 of the Sherman Act to permit the government to challenge persistent and substantial monopoly power without showing that the monopoly power was acquired or maintained through objectionable conduct. In Professor Flynn's view, eliminating the prevailing conduct requirement in certain government monopolization cases would expedite litigation and produce more effective remedies, two of the National Commission's central objectives. First, this article explains that …