Digital Commons Network^™

International Regulation Of Toxic Chemicals, Philip G. Alston

Faculty Articles

This Article examines three aspects of the existing situation in an effort to highlight the obstacles to effective international regulation, the benefits to be derived from such regulation, and the means to hasten cooperation among nations. Section I reviews the present international setting of chemical assessment and control. The discussion underscores the many institutional factors that act as barriers to international regulation, including: the dismal quality of existing test data; the reluctance of manufacturers and national governments to make data available on an international level for fear of jeopardizing their competitive market positions; and the lack of the international chemical …

Title Vi And Health Facilities: Forms Without Substance, Ken Wing

Faculty Articles

Title VI of the Civil Rights Act of 1964 prohibits racial discrimination by recipients of federal funds, including institutions that provide health care. This article assesses the current status of the Title VI enforcement program for health facilities and the problem of racial discrimination in these institutions that the Act is trying to resolve. After analyzing the legislative and political history of Title VI as it relates to health facilities, the author concludes that Title VI enforcement has been ineffective and misdirected and he suggests changes that could improve the program's implementation.

Child, Family And State: Problems And Materials On Childrenand The Law, Henry Mcgee

Faculty Articles

Professor McGee reviews THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF, by Robert H. Bork. Professor McGee argues that it would be easy to balance the allocative efficiency and the productive efficiency effects of various transactions if we could generate information for the economic models as easily as it is done in the model of perfect competition-simply by assuming it. Since information is costly in the real world, however, we must develop proxies or general rules, formed with the guidance of economic analysis, that seem likely to produce more good than harm as the law is applied to various …

Vicinage--Part Ii, Drew L. Kershen

Faculty Articles

No abstract provided.

The Enlistment Contract: A Uniform Approach, David A. Schlueter

Faculty Articles

The author explores the history of various jurisdictional and administrative issues that arise under consideration of a service member’s enlistment contract. He proposes a change to the Uniform Code of Military Justice to codify the constructive enlistment doctrine for establishing personal court-martial jurisdiction over service members whose enlistment contracts and entry onto active duty were facilitated by recruiter misconduct. The proposal later became part of amendment to Art. 2, U.C.M.J..

Unequal Justice: Lawyers And Social Change In Modern America, By Jerold S. Auerbach (Book Review), David A. Dittfurth

Faculty Articles

In Unequal Justice, Jerold S. Auerbach attempts to prove that the legal profession has failed to adequately pursue equality of justice. He finds little evidence that the legal profession or its dominant factions have made an adequate effort to assure the provision of legal services according to need. On the contrary, most of the historical evidence presented in this book leads one to believe that the legal profession has accepted profit as its real goal.

The author contends that, because the legal profession is responsible for formulating and applying law in a very legalistic society, it serves a very important …

Pyramids Of Sacrifice? Problems Of Federalism In Mandating State Implementation Of National Environmental Policy, Richard B. Stewart

Faculty Articles

Environmental policy in the United States has reached a difficult impasse. Over the past decade, responsibility for setting environmental policy has increasingly shifted from state and local authorities to the federal government. Reacting to the perceived inability of the states to check or reverse environmental degradation, Congress has enacted comprehensive statutes establishing environmental standards and control strategies. The federal government, however, is dependent upon state and local authorities to implement these policies because of the nation's size and geographic diversity, the close interrelation between environmental controls and local land use decisions, and federal officials' limited implementation and enforcement resources. The …

The Coming Of Age Of The Burger Court: Labor Law Decisions Of The Supreme Court During The 1976 Term, Harry T. Edwards

Faculty Articles

The diversity of subject matter of the cases before the Court in 1976 makes the Burger Court's ideological coherence more significant. It was not simply a case of the conservative wing of the Court joining together on a single issue. Rather, it was a demonstration of both ideological and intellectual consistency over a spectrum of discrete issues. This article will review the cases of the 1976 Term to assess the impact of the Nixon Bloc on these areas and to analyze the effect of the 1976 decisions on future labor cases.

Constructive Enlistments: Alive And Well, David A. Schlueter

Faculty Articles

Despite the predicted demise of the doctrine of constructive enlistments, recent case law from the Courts of Military Appeals has extended its existence. The constructive enlistment is recognized as a means of changing one’s status from civilian to servicemember where some deficiencies exist in the formal enlistment process.

In a trio of cases, United States v. Brown, United States v. Catlow, and United States v. Russo, the Court of Military Appeals laid a firm foundation for estopping the government from relying upon constructive enlistments in order to establish in personam court-martial jurisdiction. This trio of cases raised more questions than …

A Different Look At The Taxation Of Corporate Distribution And Shareholder Gain, Charles O'Kelley

Faculty Articles

The taxation of corporate distributions and shareholder gain is an area of the Internal Revenue Code which has fostered a seemingly never-ending yet never-successful attempt by the Courts and Congress to design a coherent, non-discriminatory regime. In this article, Professor O'Kelley sets forth a proposal for a logical system for treating corporate distributions to shareholders which would strengthen the double tax scheme, and eliminate its present loopholes.

The Unconstitutionality Of Limitations Upon Donations To Political Committees In The 1976 Federal Election Campaign Act Amendments, David Skover

Faculty Articles

The Supreme Court's decision in Buckley v. Valeo partially dismantled the electoral reform program formulated in the 1974 Amendments to the Federal Election Campaign Act of 1971. The Court declared that the Act's limitations on expenditures by candidates and independent expenditures in federal elections unconstitutionally burdened political speech and association, while it upheld restrictions on contributions to candidates. After five months of deliberation, Congress attempted to salvage its design for electoral reform by enacting the Federal Election Campaign Act Amendments of 1976. Responding to Buckley's approval of restrictions on political contributions, Congress imposed new limits on "contributions" to political committees. …

The National Labor Relations Act And The Forgotten First Amendment, James E. Bond

Faculty Articles

In this article Professor Bond discusses several points. First, the freedom of association principle, whatever its constitutional paternity, is now treated by the Court as one among first amendment equals. It is thus a fundamental right which the government may limit only for the most compelling reasons and then only in that way which least intrudes upon its exercise. Second, the relationship of an employee both to his employer and to his fellow employees involves associational rights of the kind guaranteed and protected by the first amendment. Third, the exclusive representation rule' of the National Labor Relations Act seriously interferes …

Illusion And Contradiction In The Quest For A Desegregated Metropolis, Henry Mcgee

Faculty Articles

A decade of litigation in which the central issue of discrimination essentially was uncontested thus far has failed to disestablish racial segregation or produce desperately needed low-income housing for Chicago blacks. Recently, the unconcluded litigation has produced a unanimous United States Supreme Court decision exposing suburban racial sanctuaries to the possibility of integrated public housing units. Although the first-named plaintiff in the suit, Dorothy Gautreaux, did not survive the decision, the extent of her posthumous triumph is the central theme of this article. Although Gautreaux superficially indicates that a federal judge has the power to desegregate federally subsidized housing and …

Introduction, Bernard D. Reams Jr.

Faculty Articles

The law of immigration and nationality is becoming an increasingly important topic in legal literature. This introductory volume of Immigration and Nationality Law Review represents an attempt to provide a centralized annual forum for the leading articles in this area of American law. Normally, leading legal periodical articles on the subjects of immigration, nationality, and alienage, are spread throughout various law journals. At best, materials germane to this subject have occasionally appeared in special law review issues or symposium volumes published by various American law schools. However, considering the growing relevance and concerns of immigration and nationality in the United …

Vicinage, Drew L. Kershen

Faculty Articles

No abstract provided.

Charter Air Travel: Paper Airplanes In A Dogfight (Comment), Gerald S. Reamey

Faculty Articles

Air transportation has traditionally been considered the most expensive form of travel. In that price context, the charter is an anomaly. Supplemental air carriers have built multi-million dollar businesses exclusively from the charter trade, and millions of passengers have flown by charter.

An anomaly, however, is inherently suspect and becomes proportionally more suspect as it infringes upon the status quo. Resolution of questions concerning the viability of the charter concept lies in a full understanding of the different charter forms available, the possible alternatives to these forms, the advantages and disadvantages of each, and the best way to accomplish the …

Unconscionability In Standard Forms, Lewis A. Kornhauser

Faculty Articles

This Comment argues that many exchanges governed by standard form contracts, though untainted by procedural defects and hence not currently subject to judicial control, may exhibit oppressive clauses or exorbitant prices. The sources of these market imperfections may be more amenable to legislative than judicial correction.

National Health Planning And Resources Development Act Of 1974: Implications For The Poor, Ken Wing, A. G. Schneider

Faculty Articles

The National Health Planning and Resources Development Act of 1974, was signed into law on January 4, 1975, following a lengthy legislative struggle. During the past 11 months, the fighting among private and public health interests has continued, although the principal arena has shifted from the Congress to the Department of Health, Education and Welfare, which is charged with primary responsibility for implementing the law. While the final outcome of this political conflict is still difficult to foresee, some informed estimates can already be made concerning the implications of this legislation for the poor. This article will not summarize the …

Judicial Reasoning And Social Change, David A. Dittfurth

Faculty Articles

Some have begun to doubt whether courts adequately respond to recent social problems. Formulated rules, principles, and statutes govern a case in court, and these commanding communications addressed to judges theoretically guide and control the decision-making process. Rules, although often imprecise, are subjected to the scrutiny of the legal profession, which is trained to interpret their meaning and possible application in different fact situations. This, in turn, promotes a high degree of social and political stability since there is less ambiguity as to what constitutes permissible or required behavior.

Attitudes, social institutions, language, and critical decision making are all factors …

Preferential Remedies For Employment Discrimination, Harry T. Edwards, Barry L. Zaretsky

Faculty Articles

A basic thesis of this article is that much of the current concern about alleged "reverse discrimination" in employment ignores the reality of the situation. In Part I it will be contended that although color blindness is a laudable long-run objective, it alone will not end discrimination; thus, it will be argued that some form of "color conscious" affirmative action must be employed in order to achieve equal employment opportunity for minorities and women. The most effective form of affirmative action is temporary preferential treatment, and it will be asserted in Part II that such relief can be justified under …

Sec And Frb Treatment Of Options: An Experiment In Market Regulation (Comment), George Lee Flint Jr

Faculty Articles

The Chicago Board Options Exchange (“CBOE”) provided the Securities and Exchange Commission (“SEC”) with an opportunity to exercise regulatory rules to protect the public and economy. The options market was an appropriate testing ground, as options presented complex and untested risks in the broader securities market. Before the CBOE attempted to add security and balance, options existed in an unorganized and underfinanced market. The market needed to expand. However, the SEC was faced with a few problems of its own making. Rule 9b-1 undermined the SEC’s regulatory intent by providing loopholes that would leave it powerless to intervene in any …

Amended Article 1 Of Draft Protocol I To The 1949 Geneva Conventions: The Coming Of Age Of The Guerrilla, James E. Bond

Faculty Articles

This article asserts that Captain David Graham, writing in this issue of the Washington and Lee Law Review, savages amended Article 1 of draft Protocol I to the 1949 Geneva Conventions. Specifically, he attacks the Article on the following grounds: (1) it is politically motivated by third-worlders determined to remake international law according to their own preferences; (2) it is poorly drafted and therefore cannot be implemented effectively; and (3) it would legitimize wars of national liberation and lead to discriminatory treatment of combatants. These are serious charges, raised by a serious scholar, whose closeness to the subject and to …

Housing Subsidies In The U.S. And England, Henry Mcgee

Faculty Articles

In this article Professor McGee reviews “Housing Subsidies in the United States and England”, by Daniel Mandelker. Professor McGee details the concerns and controversies about the allocation of housing funds, and provides a thorough critique of Mandelker’s comparison of the two countries.

Perspectives On The Fourth Amendment, Anthony G. Amsterdam

Faculty Articles

This Article is the text of the Oliver Wendell Holmes Lectures, delivered by Professor Amsterdam at the University of Minnesota Law School on January 22, 23 and 24, 1974. Oliver Wendell Holmes, Jr., left a large part of his estate to the United States at his death in 1935. By Act of Congress in 1955, the disposition of the property was entrusted to a Permanent Committee, which, among other projects, sponsors the annual Holmes Lectures by a distinguished legal scholar.

Harm And Punishment: A Critique Of Emphasis On The Results Of Conduct In The Criminal Law, Stephen J. Schulhofer

Faculty Articles

The criminal law attributes major significance to the harm actually caused by a defendant's conduct, as distinguished from the harm intended or risked. If, for example, a person attacks his wife and tries to kill her, he will be guilty of assault and attempted murder even if she escapes unharmed. He will also commit a battery if she is injured, mayhem if the injury is of certain especially serious types, and murder if she dies. The applicable penalties generally increase accordingly. Yet both the defendant's state of mind and his actions may have been identical in all four of the …

Election Inspectors Have Judicially Reviewable Discretionary Authority To Determine The Validity Of Proxies (Casenote), George Lee Flint Jr

Faculty Articles

The Salgo court held that an election inspector, in a corporate proxy vote, was empowered with discretion to determine the validity of votes through a review of the transfer books. This decision marked a change from the standard course of American cases, which previously confined the inspector’s ability to a strict ministerial duty. An inspector’s discretion to review votes was limited under this interpretation. By limiting his inquiry to the transfer books, Salgo allowed the inspector to determine the validity of votes, but not who could vote.

Although the court did not apply the broader view of granting the inspector …

Representation Of Clients In Matters Relating To Hospital Bills, Ken Wing, S. Axelrad, P. A. Butler

Faculty Articles

This article is designed to acquaint Legal Services attorneys with a range of government health programs for which their clients may be eligible, and a number of legal theories that may impose a duty to provide care on public or private medical care institutions. The primary objective is to provide background material to assist the attorney in getting medical bills paid or defending a collection action. The article also includes a discussion of legal duties to provide care that will be useful in advising clients and consumer groups of their rights and of the programs and services that should be …

Prior Inconsistent Statements: Presently Inconsistent Doctrine, Mark Reutlinger

Faculty Articles

The common law has come a long way since Sir Walter Raleigh was convicted of treason on the basis of accusations contained in unproduced letters and the hearsay declarations of unproduced witnesses. However, despite the painstaking development and innumerable formulations and reformulations of the hearsay rule over the past several centuries, there are areas of that body of law which are as yet unsettled and the subject of heated controversy. One such area is that of prior inconsistent statements of witnesses, the controversy over which has continued over the years and has surfaced once again with promulgation of the new …

Pleadings And Presumptions, Richard A. Epstein

Faculty Articles

Throughout the formative years of the common law, the rules of civil procedure played a crucial role in the development of the substantive rules of law. Thus, the common law provided a distinct form of action for each kind of wrong and specified complex rules-some of general and some of particular application-for the elaboration of a case within the framework of its appropriate form. The forms of action have been abolished, as have most of the arcane rules of pleading that were so congenial to them. The rules of pleading today retain some of their original importance to the ordinary …

The Emerging Duty To Bargain In The Public Sector, Harry T. Edwards

Faculty Articles

Whether the public sector is indeed sufficiently different from the private sector to warrant the assumption that private sector precedents should be avoided, or at least modified, is a question that can and has been argued at length; therefore, it will serve no useful purpose to rehash the issue in this Article. Rather, it is probably sufficient to observe that, for the most part, legislators and judges at the federal, state, and municipal levels have assumed that the two sectors are different; as a consequence, the initial legislative and judicial reactions to public sector unionism have been cautious. Arguments about …