Digital Commons Network^™

Vicinage, Drew L. Kershen

Faculty Articles

No abstract provided.

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 …

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 …

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 …

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.

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 …

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 …

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 …

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 …

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 …

Policy, Privacy, And Prerogatives: A Critical Examination Of The Proposed Federal Rules Of Evidence As They Affect Marital Privilege, Mark Reutlinger

Faculty Articles

This article examines all aspects of proposed federal rules of evidence affecting marital privilege in the United States. It also provides an explanation of the reasons advanced by the Advisory Committee for abolition of martial and other state-created privileges; Common law origins of marital privilege.

Mental Commitment Cases Of 1971 Supreme Court Term, Ken Wing, R. Carman

Faculty Articles

Even in areas where legal representation has become available to the poor through the efforts of Legal Services programs, there is still one group that is almost universally denied representation: those confined under the various forms of civil commitment and patients in mental health institutions. Almost by definition in need of legal counsel and predictably indigent, they are faced with interpersonal and institutional barriers that further reduce their chances to obtain representation. It is the position of the National Health Law Program that Legal Services programs throughout the country should focus some of their attention towards this portion of their …

Victimless Crimes: A Proposal To Free The Courts, Robert C. Boruchowitz

Faculty Articles

Victimless "crimes"—acts that are presently outside the law but which have no readily identifiable victim—account for almost half of the cases handled by United States courts. They include behavior which may reflect illness and which requires medical and therapeutic attention (such as drunkenness), as well as behavior condemned as varying from moral or social standards and leading to harmful behavior (such as vagrancy and curfew violations). If the burden of regulating this type of behavior were removed from the criminal justice system, perhaps one half of the courts' current case load could be eliminated. Furthermore, persons caught in deviant conduct …

The Developing Labor Relations Law In The Public Sector, Harry T. Edwards

Faculty Articles

There is no question that the most startling and significant recent development in labor relations has been the astounding growth of public employee unionism. The causes of this growth are legion and the search for them is basically beyond the purview of this presentation. What is important is that we have this growth, and it has caused a problem: how to create a viable system of labor relations for the public sector? The object of this article is to survey the current status of the law of labor relations in the public sector. Because the law is still in its …

Cash Deposits - Burdens And Barriers In Access To Utility Services, John B. Kirkwood

Faculty Articles

The utilities are free from statutory limitations on their deposit rules, practices differ, but most utilities use very broad criteria of income and net worth to select those consumers from whom they will demand a deposit. Under these broad deposit rules it is not surprising that the poor pay virtually all deposits, or that often high income residential areas are exempted altogether from the impact of cash deposits. Such rules impose severe burdens on depositors without proportionately benefitting the utilities, for deposits usually save utilities insignificant amounts of money. For example, estimations of the California Public Utilities Commission in 1967 …

Proposed Revisions To The Law Of War Applicable To Internal Conflict, James E. Bond

Faculty Articles

This article features a careful analysis of the law of armed conflict as it applies to internal disputes. It also provides detailed proposals for modifications in the law of war to encompass the difficult problems of human rights involved in internal disputes.

Blacks, Due Process And Efficiency In The Clash Of Values As The Supreme Court Moves To The Right, Henry Mcgee

Faculty Articles

Professor McGee examines the move by the Supreme Court to limit rights for minority defendants. Led by its law enforcement-oriented Chief Justice, an emerging majority of the Court has managed to reverse or seriously abridge precedents - both recent and time-honored - which ensured some fairness for minority defendants. Professor McGee addresses the implications of these decisions, and how they have affected due process for Black defendants.

A New Role For The Black Law Graduate—A Reality Or An Illusion?, Harry T. Edwards

Faculty Articles

It is not really surprising that so much attention has recently been given to the gross disparity in White v. Black participation in the legal profession. Indeed, the question of quality participation by Black lawyers is an irrelevant consideration until there is a real commitment to give Blacks equal access to the formerly all-white legal educational institutions. In examining the nature of this heretofore obvious (but only recently acknowledged) problem of Black underrepresentation, at least three questions may be posed: (1) Why are there so few Black lawyers? (2) What impact does the lack of Black lawyers have within our …

Religious Discrimination And The Role Of Arbitration Under Title Vii, Harry T. Edwards, Joel H. Kaplan

Faculty Articles

The prohibitions against discrimination in employment, and specifically the ban on religious discrimination, embodied in title VII of the Civil Rights Act of 1964 comprise a noble venture. The temptation in implementing that venture, of course, is to paint with broad strokes. But the delicate relationship between the religious and the secular calls for a precision of analysis in the title VII field which, if the legal wranglings in Dewey are any example, has been seriously wanting to date. To say that the definition of discrimination is one of effect is surely to prove too much, and the notion of …

The Problems And Promise Of Black Men Of Law, Henry Mcgee

Faculty Articles

Professor McGee discusses the Black legal community's fight from the 1930s through the 1950s that eliminated the constitutional support of racial segregation and discrimination. Given the monumental obstacles which historically have plagued black lawyers, it is remarkable how many have succeeded despite the discrimination. While this article touches on some of the difficulties and limitations of the black bar, it must be stressed that there is a tradition of leadership and service among black lawyers that provides a solid foundation for the relatively large numbers of advocates that return to their communities. Building on this tradition of leadership, there are …

Protection Of Non-Combatants In Guerrilla Wars, James E. Bond

Faculty Articles

The purpose of this article is twofold: first, some of the gaps in Convention protections of non-combatants will be identified; and second, possible remedies will be offered. The alleged atrocities at My Lai have exposed one major gap in Convention protection, although surprisingly few popular or scholarly commentators have mentioned or discussed it. The Geneva Civilian Convention does not protect the nationals of a co-belligerent state from the depredations of an ally. The author details the Geneva Convention categories that apply in these situations and offers revisions that could be implemented to provide the laws necessary to protect non-combatants.

Internal Conflict And Article Three Of The Geneva Conventions, James E. Bond

Faculty Articles

This article suggests that the laws of war should apply to internal conflicts. The legislative history of the present rules of war began in draft agreements before formally being expressed in international compacts, and that internal conflicts observe similar rules has also been advocated by scholars in draft agreements. It appeared in limited form Article Three of the 1949 Geneva Convention, which gives hope that something tangible will be developed by the United Nations to protect vulnerable populations during internal conflicts. The article continues that in the meantime Article Three should be utilized as a diplomatic tool to hold countries …

Roscoe Pound's Legacy: Engineering Liberty And Order, Henry Mcgee

Faculty Articles

Professor McGee presents Roscoe Pound’s legal legacy—the most distinguished career in American legal scholarship. McGee discusses Pound’s essential jurisprudence, his jural postulates and critical views, and Pound’s theory of interests—social, public, and individual. McGee also delves into Pound’s academic concern with social control and discretion in criminal justice .

Urban Renewal In The Crucible Of Judicial Review, Henry Mcgee

Faculty Articles

An agency is not an island entire of itself. It is one of the many rooms in the magnificent mansion of the law. The very subordination of the agency to judicial jurisdiction is intended to proclaim the premise that each agency is to be brought into harmony with the totality of the law; the law as it is found in the statute at hand, the statute book at large, the principles and conceptions of the "common law," and the ultimate guarantees associated with the Constitution.

Law For Sale: A Study Of The Delaware Corporation Law Of 1967, Harry First

Faculty Articles

The sovereign state of Delaware is in the business of selling its corporation law. This is profitable business, for corporation law is a good commodity to sell. The market is large, and relatively few producers compete on a national scale. The consumers of this commodity are corporations, and as we shall see, Delaware, like any other good businessman, tries to give the consumer what he wants. In fact, those who will buy the product are not only consulted about their preferences, but are also allowed to design the product and run the factory. Delaware from time to time redesigns and …

Arrests In Civil Disturbances: Reflections On The Use Of Deadly Force In Riots, Henry Mcgee

Faculty Articles

Professor McGee examines the use of deadly force in quelling recurrent communal rioting of alienated black urban masses in 1968. Napoleon fired “grapeshot” into a rioting Parisian crowd in 1795, and while his brutality may have quieted the rioters it should not be set as an example for our modern day police forces. Deadly force used against large numbers of citizens, who just prior to the riots were for the most part law-abiding and peaceful, can have crushing social consequences. In this article Professor McGee discusses police departmental policy, the limits of deadly force in arrests, excessive force and liability, …

Trusts: Consequences Of Attorney's Good Faith Representation Of Adverse Parties In Trust Administration, Mark Reutlinger

Faculty Articles

In the course of estate and trust administration, an attorney or a single law firm may be in the position of representing both the trustee and beneficiaries of a particular trust. In any such situation the attorney represents adverse parties since the beneficiaries may wish to enforce the trust provisions against the trustee. Nevertheless, the attorney might feel impelled to represent such adverse parties, especially where they are amicable, where the attorney has personal familiarity with the parties and the property, or where the parties wish to avoid the added expense of obtaining independent counsel. Potter v. Moran, however, indicates …