Digital Commons Network^™

Environmental Law (1982), H. Dennis Kelly

Faculty Scholarship

During the survey period the major cases dealing with environmental law arose under one or both of two environmental statutes. This Article will first discuss the cases which arose under the National Environmental Policy Act of 1969. The second section of the Article will survey the cases decided under the Federal Water Pollution Control Act Amendments of 1972.

The Competency Of Children And Adolescents To Make Informed Treatment Decisions, Lois A. Weithorn, Susan B. Campbell

Faculty Scholarship

No abstract provided.

The International Legal Status Of Foreign Government Deposits In Overseas Branches Of U.S. Banks, Robert B. Owen, Lori Fisler Damrosch

Faculty Scholarship

Political as well as economic forces can lead governments to default on their obligations to foreign banks. For example, the demand of the revolutionary government of Iran that the United States return he former Shah and his wealth to Iran and the subsequent seizure of American embassy personnel in Tehran on November 4, 1979, were political events which quickly resulted in a default on Iranian obligations to U.S. banks.

Following the embassy seizure, the status of the Iranian Government's huge deposits in overseas branches of U.S. banks quickly came into question. In an effort to coerce the United States to …

Reflections On Contract Law And Distributive Justice: A Reply To Kronman, William K.S. Wang

Faculty Scholarship

No abstract provided.

Managing Flood Risk: Technical Uncertainty In The National Flood Insurance Program, Michael S. Baram, J. Raymond Miyares

Faculty Scholarship

Congress established the National Flood Insurance Program ("NFIP")² to prevent flood damage and to provide relief after such damage has occurred. The NFIP is administered by the Federal Emergency Management Agency ("FEMA" or "Agency") ³ and has become a major influence on state and local land use regulation and a critical factor in private land use decisions across the nation.

This innovative program seeks to control the risk of flood damage by inducing local government to take land use control and other "police power" measures. It offers, as the inducement for such measures, the availability of federal flood insurance …

The Emerging Stowaway: Patients' Rights In The 1980s, George J. Annas

Faculty Scholarship

At one point in Edgar Allan Poe's Narrative of Arthur Gordon Pyr of Nantucket, Pym, who has stowed away in the hold of a whaling vessel, believes he has been abandoned and that the hold will be his tomb. He expressed sensations of "extreme horror and dismay," and "the most gloomy imaginings, in which the dreadful deaths of thirst, famine, suffocation, and premature interment, crowded in as the prominent disasters to be encountered."

The Foreign Sovereign Immunities Act And The Pursued Refugee: Lessons From Letelier V. Chile, Michael E. Tigar

Faculty Scholarship

No abstract provided.

‘The State’ And Other Basic Terms In Public Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Renormalization Of The Vortex Diffusion Constant In Superfluid Films, Rolfe G. Petschek

Faculty Scholarship

We study the dynamics of vortices in superfluid helium films, using a phenomenological Langevin equation to account for diffusive as well as convective motion of vortices. We show that in the long-wavelength limit, dynamic screening effects give rise to a renormalization of the diffusion constant, while the convective parameter remains unchanged. The critical behavior is analyzed with renormalization-group methods. In the limit TTc-, we find a universal cusp singularity for the diffusion constant, reaching a finite value at Tc.

Parents' Rights And Juvenile Court Jurisdiction: A Review Of Before The Best Interests Of The Child, Stanley Z. Fisher

Faculty Scholarship

This new book¹ by the authors of Beyond the Best Interests of the Child² also makes a major contribution to the field of family law. Concentrating this time on the subject of child neglect and abuse, the authors mount a powerful attack on state intrusion into families under current child protection laws. Like Beyond the Best Interests, this book has attracted wide attention and provoked intense controversy. It should be read by all those concerned about the law's impact on children and families.

Resonant Structure In The Π⁺ Π⁺Π‾ Π‾ System Between 1.5 And 1.9 Gev, F. A. Dibianca, William J. Fickinger, J. A. Malko, D. K. Robinson

Faculty Scholarship

Resonant structure is studied in the 1.5-to-1.9-GeV mass region of the neutral four-pion system in the reaction π+n→pπ+π+π-π- at 6 GeV/c incident momentum. The ρ0 and A2± content are determined as a function of the four-pion mass. The 4π mass spectrum is best fitted by two resonances, both of which decay predominantly into ρ0π+π-, each with evidence for an appreciable A2π component.

Monrad G. Paulsen, Michael I. Sovern

Faculty Scholarship

Nothing made Monrad happier than bringing together two people he loved whose lives had not previously intersected and seeing a new friendship blossom. I owe some of the most satisfying relationships of my life to that wonderful taste. And I see its fruits all over this room today. Monrad would be overjoyed if he could see us all together.

From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.

Faculty Scholarship

Within the context of mail and wire fraud prosecutions, criminal liability for breach of fiduciary duties is being imposed with increasing frequency. Professor Coffee discusses the disturbing failure of the courts to require that the fiduciary's conduct have caused legally cognizable harm to the beneficiary. He concludes that an affirmative defense should be available to fiduciaries to show the lack of proximate cause between a breach and the injury. In addition, federal enforcement should occur only after state and private remedies have proven inadequate.

Paradoxes, Gedanken Experiments And The Burden Of Proof: A Response To Dr. Cohen's Reply, David H. Kaye

Faculty Scholarship

This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one …

The Dismantling Of Higher Education Part 1, William K.S. Wang

Faculty Scholarship

No abstract provided.

State Taxation Of Natural Resource Extraction And The Commerce Clause: Federalism's Modern Frontier, Michael B. Browde, Charles T. Dumars

Faculty Scholarship

The formalistic delineation of the commerce clause in the pre-New Deal era gave way to the modern balancing approach largely because the earlier formalism did not adequately resolve the more difficult commerce clause questions created by the growing complexities of modern society. The irrelevance of the Heisler severance-precedes-commerce analysis to the modern problems that surround our national energy policy is a classic example of the failure of the old devices. Issues that were well settled on the legitimate-state-control side of the ledger in the 1920's have shifted to the national-interest side of the ledger today. As energy development assumes greater …

Competency To Stand Trial Under The Senate And House Proposed Revisions Of The Federal Criminal Code, Leo M. Romero

Faculty Scholarship

In 1980 the judiciary committees of the Senate and the House of Representatives reported bills revising the federal criminal code. Although neither of these bills was enacted by the Ninety-Sixth Congress, they represent the culmination of efforts, over a period of a decade, to revise and reform the federal criminal laws in a comprehensive code.

Silence As A Moral And Constitutional Right, Kent Greenawalt

Faculty Scholarship

Like the Fourth Amendment ban on unreasonable searches and seizures, the privilege against self-incrimination stands as a barrier to the government's acquisition of information about criminal activities. The moral analogue in private relations to the Fourth Amendment right is quite straightforward. One person should not rummage about the private spaces of another seeking signs of bad behavior unless he has very powerful reasons. The Fourth Amendment similarly limits the government, generally permitting searches only upon probable cause. The private moral analogue to the Fifth Amendment's right of silence is harder to identify, its analysis is more complex and the judgments …

Mccormick On Evidence And The Concept Of Hearsay: A Critical Analysis Followed By Suggestions To Law Teachers, Roger C. Park

Faculty Scholarship

No abstract provided.

Sleight Of Handwriting: The Holographic Will In California, Gail Boreman Bird

Faculty Scholarship

No abstract provided.

Revocation Of A Revoking Codicil: The Renaissance Of Revival In California, Gail Boreman Bird

Faculty Scholarship

No abstract provided.

Analytical And Comparative Variations On Selected Provisions Of Book One Of The Louisiana Civil Code With Special Consideration Of The Role Of Fault In The Determination Of Marital Disputes, Thomas E. Carbonneau

Faculty Scholarship

This article is intended to be a type of "structuralist" commentary upon selected provisions in Book I of the Louisiana Civil Code. Its sole purpose is to illustrate, both for pedagogical and doctrinal reasons, some of the analytical difficulties to which these code provisions might give rise when they are read in a close textual fashion. It should be emphasized that this study is a textual commentary and not a historical assessment of the sources or origins of the code texts – the latter analysis is outside the purview of the present endeavor.

Accordingly, this article consists of a critical …

Regulatory Reform In A Time Of Transition, Peter L. Strauss

Faculty Scholarship

As Americans have become both disheartened at the performance of their governments and conscious of their penetration into what were once private lives, regulatory reform has been urged with increasing fervor at both federal and state levels. Some of the reform talk is lawyer's talk, some of it is directed to the most fundamental aspects of the government order, and there is a good bit in between. My purpose here is to examine a number of the directions being suggested at the federal level for regulatory reform during the coming decade. While it would be helpful also to consider state …

French Codification Of A Legal Framework For International Commercial Arbitration, W. Laurence Craig, William W. Park, Jan Paulsson

Faculty Scholarship

Resolution of a dispute arising under an international commercial contract frequently has been plagued with uncertainty regarding applicable substantive and procedural law. These problems are not necessarily solved by the presence of an arbitration clause in the contract. In the absence of a clearly defined arbitral system, the parties can not be certain of the rules regarding the arbitral procedure or the recognition and enforcement of arbitral awards. By enacting a decree that specifically applies to international commercial arbitration, France has recently taken a major step toward resolving the uncertainties surrounding the resolution of international commercial disputes. The authors analyze …

The Right To Privacy In Nineteenth Century America, David J. Seipp

Faculty Scholarship

On December 15, 189o, Samuel D. Warren and Louis D. Brandeis, two young Boston law partners, published an article in the Harvard Law Review entitled The Right to Privacy. In that article, they proposed a remedy for invasions of personal privacy by the press. More than ninety years later, protection of privacy has become a major concern of the law. Legal scholars have organized the extensive body of case law into a coherent common law of privacy; the Supreme Court has enshrined the right to privacy in the "penumbra" of the Bill of Rights; and Congress has enacted additional safeguards.

In Order To Have Water: Legal, Economic And Institutional Barriers To Water Reuse In Northern New England, Michael S. Baram, J. Raymond Miyares

Faculty Scholarship

The maintenance of adequate water supplies to meet increasing demand upon residential and industrial users in New England is now an urgent concern. Encouragement of water reuse is one of the ways in which water conservation can be implemented. This Article, synthesized by the authors from their technical report, examines current legal and institutional methods of promoting water reuse and conservation. They analyze their effectiveness and argue that legal and political reform is needed to achieve the ends of water conservation. I

Principles Of Relational Contracts, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

Recent scholarship has demonstrated that a significant proportion of private contracts do not easily fit the presuppositions of classical legal analysis. One reason for this is the pivotal role played in conventional legal theory by the concept of the complete contingent contract. Parties in a bargaining situation are presumed able, at minimal cost, to allocate explicitly the risks that future contingencies may cause one or the other to regret having entered into an executory agreement. Under these conditions, the role of legal regulation can be defined quite precisely. Once the underlying rules policing the bargaining process have been specified, contract …

Balzacian Legality: A Proposal For Natural Law Juridicial Standards Of Legality, Thomas E. Carbonneau

Faculty Scholarship

The task of the present article is twofold. First, it represents an attempt to make an original English language contribution to the continuing interdisciplinary inquiry, begun in France, into the presence of law in Balzac's The Human Comedy, by focusing upon themes and novels that have not been the subject of previous individual study. Second, it seeks to contribute to an area of growing interest to legal scholars in the United States – the study of law and literature – by providing an example of the insights one French novelist with legal training and experience had into questions that …

Authority And Consent, Joseph Raz

Faculty Scholarship

My starting point is the assumption that there is no general obligation to obey the law, not even a prima facie obligation and not even in a just society. This assumption is perhaps becoming more popular. In recent years it has been defended by several writers. There is more that needs to be said in its support, but I will not attempt to do so here. Instead, I will reflect on a problem posed by accepting it, a problem concerning the relations between an individual citizen and the state. It is common to think that the state has authority over …

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …