Digital Commons Network^™

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 …

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 …

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 …

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, …

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 …

Bodily Evidence And Rule 312, M.R.E., David A. Schlueter

Faculty Articles

n addressing the issues of obtaining bodily evidence, such as bodily fluids, from a suspect, Rule 312 of the Military Rules of Evidence must be considered in conjunction with the issues of self-incrimination, due process, and the Fourth Amendment. The Rule describes the procedures for collection of bodily evidence of service members. For example, a service member may not invoke the right against self-incrimination for external bodily evidence, but may when bodily fluids or cavity searches are requested. Any nonconsensual search may be conducted if it is both reasonable and performed under one of the authorized procedures of Rule 312. …

An Analysis Of The Texas Condominium Act: Maintenance And Operation Of A Condominium Project, Faye M. Bracey

Faculty Articles

The Texas Condominium Act (TCA) is the type of condominium statute often referred to as “first-generation” legislation. It defines the type of property that may provide the basis for a condominium project, and states the minimum number of units necessary to constitute a project. The Act describes the property interest held by each unit owner and the boundaries of his or her unit, while providing for exclusive ownership of individual units with joint interest in the general and limited common elements.

One criticism of “first-generation” legislation has been that it provides for the establishment of the condominium, but fails to …

The Jury Selection Act Of 1879: Theory And Practice Of Citizen Participation In The Judicial System, Drew L. Kershen

Faculty Articles

No abstract provided.

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 …

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.

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.

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 …

Liability And Damages In Libel And Slander Law, Melinda J. Branscomb

Faculty Articles

This article discusses the traditional law of defamation, with particular emphasis on standards of liability and proof of compensatory damages, and points out inconsistencies in these rules and problems with their application. It analyzes two major Supreme Court decisions that concern libel of public figures and officials and libel of private-citizen plaintiffs. This article then discusses three recent Tennessee cases and their impact upon the state's defamation law. It finds that a less complex, more uniform law of defamation is needed in light of the intricacies of traditional defamation law and its recent changes at the Supreme Court and state …

Comments On The Article By R. E. Tournier “Alcoholics Anonymous As Treatment And As Ideology”, Donald W. Goodwin, Mark B. Sobell, Linda C. Sobell, William Madsen, Robert A. Moore, Chaim M. Rosenberg, Harold W. Demone Jr., Gerald D. Shulman

Faculty Articles

No abstract provided.

Wagner, Valadez And Harrison: A Definitive Enlistment Trilogy, David A. Schlueter

Faculty Articles

One area where enlistment law has received keen scrutiny is the subject of enlistment contracts vis a vis the question of personal jurisdiction. The Court of Military Appeals’s decision in United States v. Wagner served as the keystone for the Valadez and Harrison decisions. The Court in Wagner established the concept of constructive enlistment, which it subsequently relied on in Valadez and Harrison.

In Wagner, the court addressed whether a regulatory disqualification in and of itself voids the original enlistment contract for purposes of court-martial jurisdiction. The Court stated the regulation in question was not sufficient to void Wagner’s enlistment …

The Younger Abstention: Primary State Jurisdiction Over Law Enforcement, David A. Dittfurth

Faculty Articles

The abstention doctrines have received much attention by the United States Supreme Court over the last decade. These doctrines are represented by judicial rules that require federal trial courts, in appropriate circumstances, to abstain from exercising subject matter jurisdiction although they clearly have the power to do so. As a result, the particular case is shunted back into a state judicial system for determination.

The most confusing of these doctrines is the one arising in major part from Younger v. Harris. In short, this case stands for the rule that, once a state criminal prosecution has been initiated, a federal …

Personal Jurisdiction Under Article 2, Ucmj Whither Russo, Catlow, And Brown?, David A. Schlueter

Faculty Articles

The question of personal jurisdiction for military courts in cases of invalid enlistment creates several legal issues. Invalid enlistment cases exist in a legal gray area due to the uncertainty of whether the cases should be tried by civilian or military courts. The age and competence of the enlistee are material to determining jurisdiction. The conduct of the recruiter directly affects whether the enlistee was competent. Congress amended Article 2 of the Uniform Code of Military Justice in order to address these problems. The amendment resolves many of the lingering jurisdictional issues created by Russo and Brown, but fails to …

Preferential Remedies And Affirmative Action In Employment In The Wake Of Bakke, Harry T. Edwards

Faculty Articles

Although the Court's opinion in Bakke is inconclusive on a number of important issues and does not purport to give definitive answers on questions pertaining to employment discrimination, it has at least caused a surprisingly large number of people of good will to rethink their commitments to affirmative action and to express a more ready willingness to be forthright and open about efforts taken to cure problems associated with race and sex bias in this nation. Unfortunately, expressions of good will will not cure discrimination and, more unfortunately, virtually nothing is being done by Congress to give relief on the …

The Constitutional Rights Of Corporations Revisited: Social And Political Expression And The Corporation After First National Bank V. Bellotti, Charles O'Kelley

Faculty Articles

The Supreme Court has addressed only a few occasions the extent to which corporations enjoy those constitutional rights so fundamental to private citizens. In this article Professor O'Kelley discusses the inherent difficulty in applying familiar constitutional principles to corporations and examines those cases in which the Supreme Court has either extended or denied to corporations various constitutional rights. Finding that two underlying conceptual doctrines -- the Field rational and the associational rationale -- have guided the Court in previous decisions in this area, he then applies these doctrines in an analysis of the recent Supreme Court decision in First National …

Plea Bargaining: The Experiences Of Prosecutors, Judges, And Defense Attorneys, James E. Bond

Faculty Articles

James E. Bond reviews Heuman’s Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys.

Introduction, Bernard D. Reams Jr.

Faculty Articles

Volume Two of Immigration and Nationality Law Review continues to represent a centralized annual forum for the paramount articles concerning American immigration laws. In addition to the law review articles selected by the editor for inclusion in this second volume, two original essays by practitioners in immigration law are featured. Mark Mancini examines excludability for lack of a valid labor certification as a species of fraud, and Dan P. Danilov reviews and discusses recent changes regarding nonimmigrant and immigrant visas for workers, businessmen, managers and investors. The Review’s goal remains that of providing the practicing lawyer and legal researcher with …

Texas Capital Sentencing Procedures: The Role Of The Jury And The Restraining Hand Of The Expert, Peggy C. Davis

Faculty Articles

The article explores the role of the jury and the restraining hand of the expert in capital sentencing procedures in Texas. The moral, social and legal judgment made by a jury deciding the appropriateness of a death sentence is much like that of a jury deciding the culpability of a defendant who raises an insanity defense. It has been determined that in view of the complicated nature of the decision to be made the insanity defense is peculiarly apt for resolution by the jury. And, it has been required that trial judges and appellate judges ensure that the jury base …

Review: Quantitative Methods And Legal Decisions, Lea Brilmayer, Lewis A. Kornhauser

Faculty Articles

Book review of Michael Finkelstein's Quantitative Methods in Law: Studies in the Application of Mathematical Probability and Statistics to Legal Problems, Free Press, 1978.