Digital Commons Network^™

Exchange, Contract And Law In The Stone Age, Joseph Perillo

Faculty Scholarship

No abstract provided.

Racial Reflections: Dialogues In The Direction Of Liberation , Derrick Bell, Tracy Higgins, Sung-Hee Suh

Faculty Scholarship

"New voices" of future lawyers are particularly important in the area of civil rights because racial problems are theirs to confront in the next decades. Teaching techniques developed by Paulo Freire have facilitated the enlistment of students in the racial struggle. By these techniques teachers, as well as students, learn through sharing, and students become active participants, rather than passive observers, in the learning process. The educational process, Freire counsels, ''must begin with the solution of the teacher-student contradiction, by reconciling the poles of the contradiction so that both are simultaneously teachers and students. In the fall of 1988, two …

There May Be Cracks In The Foundation: An Analysis Of Pennsylvania's Current Approach To Legislative Review Of Agency Rulemaking , Nicholas J. Johnson

Faculty Scholarship

As the legislative delegation of power to administrative agencies has grown over recent decades, so have calls for controls on agencies exercise of that power and particularly for controls on agency rulemaking. In response, various state legislatures have introduced a myriad of designs introducing legislative oversight and control over administrative regulations. Pennsylvania has joined these states by offering a means of legislative review of agency rulemaking in the form of the Regulatory Review Act of 1989 (Act 19). Pursuant to the Act, the Pennsylvania Legislature created an entity called the Independent Regulatory Review Commission and assigned to the Commission the …

Cessation Of Family Violence: Deterrence And Dissuasion, Jeffrey Fagan

Faculty Scholarship

Family violence research has only recently begun to investigate desistance. Recent developments in the study of behaviors other than family violence, such as the use of addictive substances, suggest that common processes can be identified in the cessation of disparate behaviors involving diverse populations and occurring in different settings. Desistance is the outcome of processes that begin with aversive experiences leading to a decision to stop. Desistance apparently follows legal sanctions in nearly three spouse abuse cases in four, but the duration of cessation is unknown beyond short study periods. Batterers with shorter, less severe histories have a higher probability …

Warrior Bards, Kevin Mccarthy, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Rebuilding Of Duke University's Law School, 1925-1947, Part 1, Robert F. Durden

Faculty Scholarship

No abstract provided.

Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne

Faculty Scholarship

This paper examines the growing movement away from the functional nature of federalism contained within the Constitution toward a federalist system that gives extensive discretion to Congress and is only limited by political checks. This political system of federalism has limited the role of the Court in national criminal law because of the deference the Court is expected to give Congress.

A Theory Of Political Control And Agency Discretion, Randall L. Calvert, Mathew D. Mccubbins, Barry R. Weingast

Faculty Scholarship

A major issue in the study of American politics is the extent to which electoral discipline also constrains bureaucrats. In practice, executive agencies operate with considerable independence from elected officials. However,the entire process of policy execution is a game among legislators.the chief executive. and bureaucratic agents. It includes the initial delegation of authority, the choice of policy alternatives,and opportunities for oversight and control. A simple model of this process demonstrates an important distinction between bureaucratic authority and bureaucratic discretion. Indeed.in its simplest form, the model predicts a world in which bureaucrats are the sole active participants in policymaking, but in …

Structure And Process, Politics And Policy: Administrative Arrangements And The Political Control Of Agencies, Mathew D. Mccubbins, Roger D. Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

Changing Perceptions Into Reality: Fiduciary Standards To Match The American Directors’ Monitoring Function, James D. Cox

Faculty Scholarship

This paper describes the historical fiduciary obligations of the American outside director and contrasts those obligations with prevailing obligations in today’s environment of the monitoring director. Special attention is devoted to the role of outside directors when their firm is the target of a takeover. In no other context are the demands on the outside director greater and more strain placed on the monitoring model than in the context of a corporate takeover. The final section of this paper examines the relief modern statutory provisions provide to the director and the monitoring function

Doe V. Grievance Committee: On The Interpretation Of Ethical Rules, Bruce A. Green

Faculty Scholarship

No abstract provided.

Through A Glass, Darkly: How The Court Sees Motions To Disqualify Criminal Defense Lawyers , Bruce A. Green

Faculty Scholarship

Although raised frequently in the lower courts, the question of what the trial judge's role is in conflict-of-interest cases has, for nearly half a century, lurked in the background of the Supreme Court's decisions concerning the scope of a criminal defendant's right to the undivided loyalty of his attorney. Last term, as its conflict-of-interest jurisprudence reached middle age, the Court had the opportunity to articulate its views on that question. In Wheat v. United States, the Court held that a trial judge has discretion to disqualify defense counsel, even over the defendant's objection, if a serious possibility for a conflict …

Drug Legalization: The Importance Of Asking The Right Question Symposium On Drug Decriminalization, Mark A.R. Kleinman, Aaron J. Saiger

Faculty Scholarship

As a policy analysis, this article's central argument is that that the costs imposed by markets in licit psychoactives are significantly greater than those imposed by drug prohibition.

Report: Foreword, John D. Feerick, Cyrus Vance

Faculty Scholarship

The last few years have been particularly bad for government integrity in New York. Since 1985, New York City has been rocked by a series of highly publicized scandals, arguably the worst since the days of Tammany Hall. One borough president was convicted of felonies; another committed suicide while under investigation; a congressman was recently convicted of bribery and extortion; former party chairmen in two boroughs were convicted of serious crimes; and a number of agency heads, judges, and lesser officials either have been convicted or forced to resign under a cloud of suspicion. And the City does not have …

The Uniform Rules On The Liability Of Operators Of Transport Terminals, Joseph Sweeney

Faculty Scholarship

No abstract provided.

The "Law Of Ideas" Reconsidered, Margreth Barrett

Faculty Scholarship

No abstract provided.

Setting Limits On Autonomy: Saving Money In An Aging Society, Robert L. Schwartz

Faculty Scholarship

In Setting Limits Dr. Daniel Callahan poses a solution: the termination of some kinds of treatment for the very elderly. His solution undercuts autonomy of the individual. This Article describes the values served by autonomy and explains why autonomy is so basic to making health care decisions and why its importance is especially great in the United States. Of course, autonomy is not absolute. This Article will define those classes of cases in which autonomy can be trumped by other interests. The Article will next determine whether the class of cases defined by Dr. Callahan fits within that definition. Finally, …

West's 1989 Texas Rules Of Court - One Step Forward, One Step Back, Jim Paulsen, James Hambleton

Faculty Scholarship

As with many of its other publications, West Publishing Company dominates the Texas market with its "desk copies" of Texas court rules. Over the past few years, those rules have undergone considerable mutation--in color, from white to blue to gray to red--and in length, from one volume to two volumes. There have also been numerous substantive changes. In view of the evolving nature of the "Texas Rules of Court" and the widespread use of these desk books by Texas attorneys, we feel it is about time to chronicle a few of the changes, make some constructive suggestions for improvement and, …

A Barrel Without Hoops: The Impact Of Counterterrorism On Israel's Legal Culture, Pnina Lahav

Faculty Scholarship

"'Israel's Defense Forces without law is like a barrel without hoops.'"

Terrorism challenges basic notions of Justice and Law. It demoralizes the State by exposing the inability of its institutions to protect life and liberty. It is the tool of desperados, whose devotion to a given cause has dehydrated their conscience, for whom no means is too ruthless in the struggle to attain the end. Once a society has tasted terrorism, its members expect to be struck anytime, anywhere, and for no reason other than their membership in that society. Only through tremendous inner strength can a society exposed to …

Clean Water Act Citizens Suits After Gwaltney: Applying Mootness Principles In Private Enforcement Actions, Reed D. Benson

Faculty Scholarship

The Supreme Court recently held that a citizen plaintiff must make a good-faith allegation of an ongoing violation in order to bring an enforcement action under the Clean Water Act. The decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., will prevent citizens from bringing suit for the assessment of civil penalties solely for past violations of the Clean Water Act.

Reconciling Collective Bargaining With Employee Supervision Of Management, Michael C. Harper

Faculty Scholarship

The realities of economic organization in modern industrial states pose a critical dilemma for all who care about democratic ideals. Technological developments and attendant complicated divisions of work have enabled these states to transform their citizens' standards of living; such developments have also, however, brought hierarchical economic organizations' that are unresponsive to the influence of most individual employees. A society that claims to be democratic cannot ignore this condition.² Enhancing individuals' control over their own lives requires institutions that will facilitate democratic decisionmaking about economic production as well as governmental authority.

This Article contributes to thought about such institutions …

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

Faculty Scholarship

No abstract provided.

Securities Industry Self-Regulation: Tested By The Crash, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Securities Industry Self-Regulation-Tested By The Crash, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Inconsistent Treatment Of Secured Tax Claims In Liquidation And Reorganization Proceedings Under The Bankruptcy Code, Steven B. Levine

Faculty Scholarship

There is general inconsistency and tension regarding the treatment of secured tax claims under the Bankruptcy Code. In order to resolve the ambiguity and tension in the Code, tax claims for the same periods should be treated alike regardless of whether one taxing authority has filed a notice of lien in the appropriate public records office or whether such claims are asserted in a reorganization or liquidation proceeding. Some of the rights and priorities associated with tax liens outside of bankruptcy must be limited so as not to harm 2 basic goals of the reorganization process. These are: 1. equitable …

Transnational Takeover Talk: Regulations Relating To Tender Offers And Insider Trading In The United States, The United Kingdom, Germany, And Australia, Roberta S. Karmel

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 …

Whose Advantage After All: A Comment On The Comparison Of Civil Justice Systems, Herbert L. Bernstein

Faculty Scholarship

No abstract provided.

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 …