Digital Commons Network^™

The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger

Faculty Scholarship

The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.

The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …

Facing Up: A Reply, Joseph Raz

Faculty Scholarship

We are all familiar with the peculiar feeling of coming across one's past objectified, as when one overhears others telling how they perceived a certain event in which one played the hero's role. Reading the contributions to this issue was a bit like that. In particular, it made me realise how I have abused the tolerant paper by writing all too much, while leaving so many hostages to fortune, so many loose ends, and expressing so many half-baked ideas. It is also embarrassing because it is like a summons to the confessional, to repent my sins of omission and commission, …

Delaware's Intermediate Standard For Defensive Tactics: Is There Substance To Proportionality Review?, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

The courts have long struggled with a standard for reviewing management's efforts to deter or defeat hostile takeovers. The usual standards of review in corporate law, the business judgment rule and the intrinsic fairness test, do not seem adequate when courts must evaluate defensive measures that implicate both management's business acumen and its loyalty to shareholder interests. Because evaluating a sale of the company is a complex business decision, management's response to a takeover bid resembles the normal business decisions that the business judgment rule largely insulates from judicial review.At the same time, however, a hostile takeover creates a potential …

State Sovereignty And The Tenth And Eleventh Amendments, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Life After Foley: The Future Of Wrongful Discharge Litigation, David Jung, Richard Harkness

Faculty Scholarship

No abstract provided.

A Cure For Scholarship Schizophrenia: A Manifesto For Sane Productivity And Productive Sanity, Ronald B. Brown

Faculty Scholarship

No abstract provided.

The Ethics Of Insider Trading, Gary S. Lawson

Faculty Scholarship

The quickest way to become famous is often to become infamous, as arbitrageur Ivan Boesky has recently discovered. Prior to November 1986, Mr. Boesky was well-known within the financial community, but largely unknown outside it. That changed dramatically following revelations that he and Dennis Levine, a merger specialist with the investment banking firm of Drexel Burnham Lambert, Inc., had made tens of millions of dollars in the stock market by using Mr. Levine's advance knowledge of impending takeovers by Drexel clients. Today, after disgorging $50 million in profits, paying $50 million in penalties, and receiving a jail sentence,' Mr. Boesky …

Vanessa Redgrave V. Boston Symphony Orchestra, Inc.: A Breach Of Constitutional Dimension, Maria O'Brien

Faculty Scholarship

In Vanessa Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93 (1987), the Supreme Judicial Court (SJC) issued an important ruling on the parameters of the Commonwealth's relatively new Civil Rights Act (MCRA)' by answering two questions certified to it by the United States Court of Appeals for the First Circuit. The SJC held that MCRA is essentially the state equivalent of 42 U.S.C. §1983 without the federal "state action" requirement.' This article briefly examines the SJC's decision in Redgrave in light of Massachusetts precedent and the vast federal experience with §1983 actions (Section I) and then considers the …

Modulated Phases In Thin Ferroelectric Liquid-Crystal Films, George A. Hinshaw Jr., Rolfe G. Petschek

Faculty Scholarship

We discuss modulated phases that can occur in thin liquid-crystal films composed of tilted, chiral molecules. While the phase diagram depends on all orders of a Landau expansion we find that either a striped phase of parallel defect walls or a lattice of hexagonal unit cells containing disclinations and bounded by intersecting walls can occur. The striped phase can occur with either a positive or negative bend elastic constant depending on the underlying microscopic parameters. The transition into the modulated phase is, in general, continuous with infinite defect separation at the transition.

Drug Product Liability And Health Care Delivery Systems, William M. Sage

Faculty Scholarship

This note will use the principles of law and economics to examine the interaction of market structures and product liability rules in a world of imperfect information. The goals of the analysis are to create incentives for optimal care by producers and consumers, induce the socially appropriate amount of consumption of each product (often referred to as the "activity level"), and minimize the costs of bearing the risk of injury. The note will conclude that the existence of health maintenance organizations ("HMOs") and similar prepaid providers with superior information capacity and total patient care responsibility may create a context in …

Conflict Of Laws (1988), Sharon N. Freytag, Don D. Bush, James Paul George

Faculty Scholarship

Conflicts of law occur when foreign elements appear in a lawsuit. Nonresident litigants, incidents in sister states or foreign countries, and lawsuits from other jurisdictions represent foreign elements that may create problems in judicial jurisdiction, choice of law, or recognition of foreign judgments, respectively. This Article reviews Texas conflicts of law during the Survey period from late 1986 through 1987. The survey includes cases from Texas state and federal courts and non-Texas cases affecting Texas practice. Excluded are cases involving federal/state conflicts, criminal law, intrastate matters such as subject matter jurisdiction and venue, except when they relate to the personal …

Risk Communication Law And Implementation Issues In The United States And European Community, Michael S. Baram

Faculty Scholarship

Risk communication has become an important element of public policy in the United States and the European Community (E.C.) for reducing technological risks to workers, product users and community residents. The risk communication process involves disclosure by an industrial firm (or other party) of information about the hazardous attributes of its activity or product to a regulatory agency or to persons who may be at risk, thereby facilitating a shared understanding of the risk and enabling interpretation of various risk prevention and response measures.

There are two general patterns of risk communication. One involves industrial disclosure to a government agency, …

Informed Consent In The Post-Modern Era, Wendy K. Mariner

Faculty Scholarship

The doctrine of informed consent' is intended to get physicians to talk to their patients so that patients can make reasonably knowledgeable choices about whether to undergo particular forms of medical care. Although the law has long prohibited treatment without the patient's consent,² physicians have resisted the idea that treatment decisions ultimately are for the patient to make. Only recently have physicians been willing to disclose information about the benefits and risks of recommended therapies. ³ Even with the best of intentions, however, the discussions that do take place are often far from the law's ideal of reasonable disclosure …

In Search Of The Virtuous Prosecutor: A Conceptual Framework, Stanley Z. Fisher

Faculty Scholarship

Questions about the scope and content of the duty to "seek justice" pervade prosecutorial work. Prosecutors are required to serve in a dual role: they are both advocates seeking conviction and "ministers of justice." Observers have complained about a tendency on the part of prosecutors to prefer the former of these "schizophrenic" obligations to the latter. This is commonly described as a tendency to behave overzealously or according to a "conviction psychology. ' "

Duty To The Target: Is An Attorney's Duty To The Corporation A Paradigm For Directors, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Duty To The Target: Is An Attorney's Duty To The Corporation A Paradigm For Directors?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Transitions And Modulated Phases In Centrosymmetric Ferroelectrics: Mean-Field And Renormalization-Group Predictions, George A. Hinshaw Jr., Rolfe G. Petschek

Faculty Scholarship

A variety of ferrodisplacive transitions have Landau expansions which involve terms proportional to p2(p), i.e., three powers of the order parameter (p) and one gradient (). Such expansions have also been suggested for polymeric liquid crystals. We have studied a rotationally invariant, centrosymmetric ferroelectric in which the order parameter is a vector. The pp term leads to modulated phases when it is large enough. The modulated phase close to the uniform-modulated transition and the location of the transition are discussed as a function of dimensionless parameters in a simple model for the free energy. Modifications expected from dangerous irrelevant variables …

Appellate Justice Bureaucracy And Scholarship, William M. Richman, William L. Reynolds

Faculty Scholarship

No abstract provided.

When Can The Government Issue A Retroactive Medicare Reimbursement Rule? A Preview Of Bowen V. Georgetown University Hospital, Robert L. Schwartz

Faculty Scholarship

The only issue before the Court is whether the Secretary of Health and Human Services can issue a regulation with entirely retroactive effect governing Medicare reimbursement for healthcare providers. The Court must decide whether such a retroactive rule is permitted by the Administrative Procedures Act (the "APA"), which defines a rule as "an agency statement of either general or particular applicability and future effect," or by the Medicare statute, which authorizes the Secretary to issue regulations to provide for the reimbursement of the "reasonable costs" of hospitals providing Medicare services.

Informed Decision-Making And The Law Of Torts: The Myth Of Justiciable Causation, Neil B. Cohen, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

The American Jury On Trial: Psychological Perspectives (Book Review), Leo M. Romero

Faculty Scholarship

Book Review of S. Kassin & L. Wrightsman, The American Jury on Trial: Psychological Perspectives (1988)

If Your Client Is Mentally Retarded, James W. Ellis, Ruth A. Luckasson

Faculty Scholarship

Introduction to defending clients who hae cognitive disabilites.

Rethinking Harmless Constitutional Error, A. Kimberley Dayton

Faculty Scholarship

This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court's existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court's approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used …

Her Brother's Keeper: The Prosecutor's Responsibility When Defense Counsel Has A Potential Conflict Of Interest , Bruce A. Green

Faculty Scholarship

What are the responsibilities of a prosecutor when she learns in the course of preparing for trial that defense counsel has a potential conflict of interest? Must the prosecutor alert defense counsel and the trial judge to the problem? May she move to disqualify defense counsel? This Article explores the responsibilities that courts have begun to, and ought to, impose on prosecutors. In large part, the prosecutor's responsibilities are subordinate to those of defense counsel and the trial judge, who have the primary responsibility to ensure that the defendant's right to independent counsel is not unfairly abridged. Therefore, as background …

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

Confederate And Carpetbaggers: The Precedential Value Of Decisions From The Civil War And Reconstruction Era, Jim Paulsen, James Hambleton

Faculty Scholarship

Many Texas attorneys consulting older decisions for guidance breathe sighs of mental relief when they read a Texas Supreme Court case, rather than one of those pesky Court of Appeals or Commission of Appeals decisions with an arcane writ history or "judgment adopted" designation. After all, Texas Supreme Court cases are the top of the heap, precedent-wise, unless they have been overruled. Right? Well, maybe. In Texas, there are good and bad vintages for Texas Supreme Court opinions. The Civil War and Reconstruction years, from 1861 through 1873, are a particularly interesting legal vinyard.

Surprisingly enough, despite the century or …

What Is Bayesianism? A Guide For The Perplexed, David H. Kaye

Faculty Scholarship

Bayes' Theorem, Bayesian statistics and Bayesian inference have been the subject of sharp dispute in various writings about legal rules of evidence and proof. This article disentangles the many meanings of "Bayesianism." It sketches several competing interpretations of probability, some leading schools of statistical inference, and the elements of Bayesian decision theory. In the process, it notes the aspects of Bayesian theory that have been applied in studies of forensic proof.

Defending Battered Women's Self-Defense Claims, Kit Kinports

Faculty Scholarship

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases.

Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …

The Truth About Tax Reform, Michael J. Graetz

Faculty Scholarship

The Tax Reform Act of 1986 has been widely heralded as the most important tax legislation since the income tax was converted to a tax on the masses during the Second World War. Since his favorite proposal for a constitutional amendment – the one calling for a balanced budget – was not adopted, the 1986 Tax Reform Act clearly will be the major domestic achievement of Ronald Reagan's presidency. This law even produced the new Internal Revenue Code of 1986; no more Internal Revenue Code of 1954, as amended. It took until the very end of 1987 until we were …

The President’S Powers As Commander-In-Chief Versus Congress’ War Power And Appropriations Power, Charles Bennett, Arthur B. Culvahouse Jr., Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne

Faculty Scholarship

No abstract provided.