Digital Commons Network^™

Start-Up Costs, Section 195 And Clear Reflection Of Income: A Tale Of Talismans, Tacked-On Tax Reform And A Touch Of Basics, John W. Lee

Faculty Publications

No abstract provided.

Arnoldia Kuesii, A New Juvenile Fernlike Plant From The Lower Permian Of New Mexico, William D. Tidwell, Sidney Ash

Faculty Publications

A nearly complete juvenile fernlike plant is described here from Lower Permian rocks of New Mexico. The fossil consists of a horizontal rhizome with roots, a short thick upright aerial branch, and a tuft of dimorphic leaves. It is assigned to Arnodia kuesii gen. et sp. n. and appears to be the first juvenile fernlike plant known from the Upper Paleozoic. Abundant palynomorphs and other plant fossils associated with the fossil indicate that it is Early Permian in age.

Morality And The Rule Of Law, Noel B. Reynolds

Faculty Publications

This paper lays out the logic of a conservative view of liberty and morality based on an understanding of human nature as both social and rational on the one hand, and radically individual and self-seeking on the other. Without public virtue, a people cannot govern itself as a free people. But neither virtue nor moral truth can be legislated. The rule of law under constitutionalism is the most successful human arrangement for providing freedom and allowing moral action on the part of individuals.

The Entrapment Defense And Procedural Issues: Burden Of Proof, Questions Of Law And Fact, Inconsistent Defenses, Paul Marcus

Faculty Publications

Paul Marcus has produced an extremely thorough article on the intriguing and complex defense of entrapment. After analyzing the subjective and objective approaches to the defense, the author turns to the infrequently addressed question of evidence on predisposition. Included here are the recent ABSCAM cases.

Finally, the author explores the vagaries of inconsistent defenses and, on the whole, provides academics and practitioners with a refreshing and useful guide to some of the most important questions involving entrapment.

Was The Crystal Ball Cracked: Time Is Shattering Hal Lindsey's Predictions, Samuele Bacchiocchi

Faculty Publications

No abstract provided.

California Death Penalty Laws And The California Supreme Court: A Ten Year Perspective, Gerald F. Uelmen

Faculty Publications

No abstract provided.

Liberal Political Theory And The Rule Of Law, Noel B. Reynolds

Faculty Publications

The efforts of liberal political theorists like John Rawls and Ronald Dworkin to identify principles and rights based on moral truth as authoritative bases for law and politics ignore the insight of Hume and other conservative theorists that the moral possibilities of human nature generally are limited and are in turn limiting on what can be accomplished, from a moral point of view, through law and politics.

Capital Gains Exception To The House's "General Utilities" Repeal: Further Indigestions From Overly Processed "Corn Products", John W. Lee

Faculty Publications

In this article, Lee first describes the mechanics and tax effects of cost basis corporate acquisitions and analyzes why current tax rules favor such acquisitions over carryover basis acquisition (e .g., tax-free mergers); then he describes the House's proposed repeal in HR 3838 of the General Utilities doctrine in current sections 336-338, focusing on the continued exemption for long-term capital gains of a closely held active business corporation. This sets the stage for analysis of the Corn Products doctrine, which under an "integral asset" reading would deny the exemption to most appreciated operating assets, surely not the intent of the …

Concise Dictionary Of Modern Japanese History, By Janet H. Hunter, William Dean Kinzley

Faculty Publications

A review of Concise Dictionary of Modern Japanese History, by Janet H. Hunter

Preemption Of State Law Notice Provisions Governing The Recovery Of Attorneys' Fees By Section 506(B) Of The Bankruptcy Code, R. Wilson Freyermuth

Faculty Publications

This note provides a framework for courts and attorneys faced with the issue whether section 506(b) preempts state law notice provisions. The note studies the language and legislative history of section 506(b), pointing out the inconsistencies and ambiguities that make it difficult to determine congressional intent. The note then surveys the various rationales advanced by the lower courts in resolving this issue. Using the recent Fourth Circuit case of Unsecured Creditors' Committee v. Walter E. Heller & Co. to illustrate several of these rationales, the note suggests that a more consistent approach to this issue is needed. After examining the …

Indonesia In 1985: Chills And Thaws, Donald E. Weatherbee

Faculty Publications

No abstract provided.

The Coming Boom In Computer Loads, Oliver S. Yu, R. Squitieri, C. Roach

Faculty Publications

Computers and other electronic equipment now consume as much electricity as electric steel furnaces, and their growth shows no signs of slowing. Utilities are active participants in the computer revolution. Northeast Utilities, for example, reports that 20% of electricity use in a typical new office building in its service area goes to computers. Given the expected growth in computers and computer loads, this technology deserves greater attention from utility planners and other energy analysts. It is shown that the commercial sector has been the largest contributor to kilowatt-hour (kwh) sales growth and that new uses within the commercial sector have …

Sweatt V. Painter, The End Of Segregation, And The Transformation Of Education Law, Jonathan L. Entin

Faculty Publications

This Article will analyze these aspects of the Sweatt case. Part I describes the facts leading to the litigation. Part II examines the Supreme Court precedents facing Sweatt's attorneys, both in the area of school segregation and in the field of education generally. This section concludes that the Court at best seemed pre- pared only to enforce the Plessy doctrine, and none too rigorously at that. Part III focuses upon the process of making the record at the trial. This section demonstrates how Sweatt's counsel took advantage of ambiguities in the prior cases to lead the Curt to address the …

Are The Events In The Genesis Creation Account Set Forth In Chronological Order?: No, Mark A. Throntveit

Faculty Publications

No abstract provided.

Thinking About Federal Jurisdiction — Of Serpents And Swallows, Thomas E. Baker

Faculty Publications

In this essay, Professor Baker assumes that the decision to get into or stay in federal court has been made, for whatever reason. His concentration is focused on providing a checklist of some of the typical challenges to jurisdiction and to highlight some uncommon responses. Organizationally, he first considers general issues which apply to all cases, and then considers separately some issues in diversity cases and in federal question cases.

Economic Appraisal Of Service Forester Activities In Mississippi, Thomas J. Straka, Walter C. Anderson, Steven H. Bullard

Faculty Publications

The importance of nonindustrial private forest( NIPF) lands to national timber output potential is well-documented (USDA Forest Service 1981, 1982; Wall 1981). The NIPF sector controls 58 percent of the Nation's commercial fm·est area, compared to 14- percent in forest industry holdings, and 28 percent in public forests (Figure 1). Approximately 71 percent of the commercial forest area in the eastern United States is held by the NIPF sector.

Wilderness And Natural Areas In The Eastern United States: A Management Challenge, David Kulhavy, Richard N. Conner

Faculty Publications

"The purpose of this symposium is not to debate either the concept of wilderness or the amount of wilderness appropriate for the United States. These are not debatable issues for present purposes. The Congress has spoken twice. The Wilderness Act of 1964 (PL 88-577) and the amendments of 1975, known as the "Eastern Wilderness Act" (PL 93-622), both set-aside existing areas as wilderness and established procedures for consideration of additions to the wilderness system. The purpose of this symposium is to consider the management of wilderness areas over time. In a very real sense, if those areas established as wilderness …

Principles Of Contract Interpretation: Interpreting Collective Bargaining Agreements, Jay E. Grenig

Faculty Publications

No abstract provided.

Trade Secrets: Important Quasi-Property Rights, Ramon A. Klitzke

Faculty Publications

No abstract provided.

1985 Survey Of Trends And Developments On Religious Liberty In The Courts, Carl H. Esbeck

Faculty Publications

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty during 1985. Purposely omitted are the widely reported United State Supreme Court opinions, as well as cases where the high court has granted review during its 1985-86 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

Tort Claims Against Churches And Ecclesiastical Officers: The First Amendment Considerations, Carl H. Esbeck

Faculty Publications

Federal and state courts are increasingly confronted with the unenviable task of giving legal definition to matters affecting relations between religion and government.' Many of the lawsuits pitting church against state are surface manifestations of a more fundamental disintegration of an American public philosophy.

Remedying Insurers' Bad Faith Contract Performance: A Reassessment, Robert H. Jerry Ii

Faculty Publications

This article examines the implications of the differing remedies provided by tort and contract law. Part I describes the traditional major duties owed by an insurer to an insured and outlines the remedies currently provided in most jurisdictions for the breach of these duties. Part II gives special attention to the insurer's implied duty of good faith and fair dealing; it reviews the historical origins of the duty and describes the alternative ways to categorize it. Part III argues that the duty of good faith and fair dealing should be treated as a contract duty, but that courts should administer …

The Costs Of Exclusionary Practices In Women's Studies, Maxine Baca Zinn, Lynn Weber, Elizabeth Higginbotham, Bonnie Thornton Dill

Faculty Publications

No abstract provided.

Dual Class Capitalization: A Reply To Professor Seligman, George W. Dent

Faculty Publications

Professor Joel Seligman's article, Equal Protection in Share- holder Voting Rights: The One Common Share, One Vote Contro- versy,' is an impressive accomplishment in many respects. It confirms his status as premier historian of our securities laws and markets.2 It also provides a powerful analysis of, and the first se- rious argument against, dual class capitalization, and proposes a thoughtful solution to the problems it raises. Despite these formi- dable assets, some of Professor Seligman's conclusions are debata- ble. First, Professor Seligman argues that the Securities and Exchange Commission (SEC) can impose on the National Associa- tion of Securities Dealers …

Bite Mark Evidence, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Law Of Confessions: Part Ii, Paul C. Giannelli

Faculty Publications

No abstract provided.

A Policy Analysis Of Fee-Shifting Rules Under The Internal Revenue Code, Gary Myers, Richard L. Schmalbeck

Faculty Publications

Until recently, the costs of litigating federal tax cases were borne exclusively by the parties who incurred them, regardless of whether the government or the taxpayer prevailed in the litigation. This practice reflects the application to tax disputes of the ‘American rule’ against fee shifting. Although the American rule continues to be predominant in the tax area, it has been modified in important respects. An explicit fee-reimbursement rule, benefiting prevailing taxpayers in cases in which the government is found to have acted unreasonably, was added to the Internal Revenue Code (IRC) by the Tax Equity and Fiscal Responsibility Act of …

The Status Of Independent Agencies After Bowsher V. Synar, Paul R. Verkuil

Faculty Publications

No abstract provided.

Congressional Standing To Sue: Whose Vote Is This, Anyway?, R. Lawrence Dessem

Faculty Publications

The article is divided into three major sections. Section I traces the development of a separate doctrine of “congressional standing.” It examines the doctrine's development from the Supreme Court's initial consideration of legislative standing through the current opinions of the United States Court of Appeals for the District of Columbia Circuit. Section II then analyzes three possible theories of congressional injury and standing. Derivative, representative, and third-party standing theories are all rejected as a basis for congressional standing. While rejecting the suggestion that congressmen possess a personal interest in “their” votes sufficient to constitute the “distinct and palpable injury” required …

Five Views Of Church-State Relations In Contemporary American Thought, Carl H. Esbeck

Faculty Publications

Views concerning the appropriate relationship between church and state are rapidly becoming almost as numerous as America's religious sects. The Constitution's treatment of religious liberty, thought by many to be a matter long settled, has now erupted into a many-sided debate. Not only lawyers, judges and legal commentators are involved; historians and sociologists, theologians and ecclesiastics, political theorists and statesmen also participate in the debate. It is part of a much larger struggle over a redefinition, or for some a reclamation, of the role of religion in American public life. At times this debate focuses on discrete environments, such as …