Digital Commons Network^™

Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.

Faculty Scholarship

Forty years ago, Judge Jerome Frank coined the term "private Attorney General" to recognize the role of private litigation in the enforcement of law. In the intervening years, the "private attorney general" concept has become both a cliche and a crutch, receiving polite lip service from nearly all, but critical analysis from relatively few. As most college sophomores know, the private attorney general is someone who sues "to vindicate the public interest" by representing collectively those who individually could not afford the costs of litigation; and, as every law student knows, our society places extensive reliance upon such private attorneys …

Commercial Arbitration In The Eighteenth Century: Searching For The Transformation Of American Law, Eben Moglen

Faculty Scholarship

Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a "transformation" in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an "alliance," in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in …

Why Lawyers Should Be Allowed To Advertise: A Market Analysis Of Legal Services , Geoffrey C. Hazard Jr., Russell G. Pearce, Jeffrey W. Stempel

Faculty Scholarship

Last August, the American Bar Association adopted the Model Rules of Professional Conduct which significantly altered the ABA' position on lawyer advertising. It is still unclear how the states will respond to the ABA's new position, and the debate about the propriety of lawyer advertising continue. In the authors' view, both sides of the debate have overlooked an important point: For purposes of analyzing the advertising problem, legal services are of two types, and the effect of advertising on the legal services market will vary with the type of service involved."Individualized" services involve legal matters that pose a significant risk …

Regulatory Reform: Assessing The California Plan, Marsha N. Cohen

Faculty Scholarship

No abstract provided.

Eliminating The "Defect" In Design Strict Products Liability Theory, John L. Diamond

Faculty Scholarship

No abstract provided.

Reducing Court Costs And Delay: The Potential Impact Of The Proposed Amendments To The Federal Rules Of Civil Procedure, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Myth And Reality In Protective Order Litigation, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Fraudulent Concealment In Federal Court: Toward A More Disparate Standard?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

State Defined Marital Status: Its Future As An Operative Tax Factor, Daniel J. Lathrope

Faculty Scholarship

No abstract provided.

Robert J. Kutak: A Brief Appreciation, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Why Lawyers Should Be Allowed To Advertise: A Market Analysis Of Legal Services, Geoffrey C. Hazard Jr., Russell G. Pearce, Jeffrey W. Stempel

Faculty Scholarship

No abstract provided.

Leveling The Road From Borg-Warner To First National Maintenance: The Scope Of Mandatory Bargaining, Michael C. Harper

Faculty Scholarship

The Supreme Court's most recent effort to distinguish nonmandatory bargaining topics, First National Maintenance Corp. v. NLRB, ¹⁹ illustrates the Court's lack of clarity in this area and vindicates Cox's and Wellington's criticisms of the Court's approach in Borg-Warner. In First National Maintenance (F.N.M.), the Court held that an employer's decision "to shut down part of its business purely for economic reasons" was outside the scope of mandatory bargaining.²⁰ The Court could cite no evidence that Congress intended to prevent employee representatives from obtaining full effective bargaining over such decisions, nor did it articulate any general principle to …

The Law School Library: Its Function, Structure, And Management, Robert J. Desiderio

Faculty Scholarship

The law library has a special and unique importance because of the nature of our legal system and its role as a laboratory for anyone involved in a legal proceeding. Students, faculty, lawyers, judges, and lay persons cannot accomplish legal work without the library. Law libraries, in the process of transition, are planning or implementing computer-based retrieval systems and video devices for training and instruction. Law librarians have significant responsibilities for accurate information retrieval and teaching legal research techniques.

The Exercise Of Executive Discretion: A Study Of A Regional Office Of The Department Of Labor, Michael C. Harper

Faculty Scholarship

Writing for a recent symposium on empirical research in administrative law, Professor Paul Verkuil noted that such research "casts light on one of the dark corners of the law. The vast majority of administrative decisions are of the informal variety, meaning they take place outside the reach of generic administrative procedure acts and frequently outside the courts themselves."' We are only beginning to appreciate how vast is this dark corner and how varied the possible modes of illumination.

This essay casts some additional light into the corner by reporting on a study of the exercise of executive discretion by a …

National Product Liability Legislation: In Search For The Best Of All Possible Worlds, Aaron Twerski

Faculty Scholarship

No abstract provided.

Seizing The Middle Ground Between Rules And Standards In Design Defect Litigation: Advancing Directed Verdict Practice In The Law Of Tort, Aaron Twerski

Faculty Scholarship

No abstract provided.

Pretrial Procedure Under The Massachusetts Rules Of Criminal Procedure, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The Massachusetts Rules of Criminal Procedure became effective on July 1, 1979. While many of their provisions helpfully codify previously existing practice and case law, the Rules have in some areas effected a major transformation of criminal procedure. This article examines the changes wrought by the Rules in the pretrial arena, with emphasis on those areas that remain somewhat unfamiliar to the practitioner or untested against constitutional challenge in the courts. While the Rules appear to have done an admirable job of simplifying and rationalizing the criminal trial process, their emphasis on mutuality and reciprocity have in some cases created …

Bargaining In The Shadow Of The Law: A Testable Model Of Strategic Behavior, Robert Cooter, Stephen G. Marks, Robert Mnookin

Faculty Scholarship

Part I describes the framework of the model. Part II discusses the domination of psychological effects by tangible variables, which is the basis for comparative statics. Part III explains the table of predictions, and Part IV applies the predictions to externalities and rules for real-locating payoffs from trial. There is little mathematics in the text. The mathematical reader can refer to the Appendix for a brief presentation of our model, or to a companion paper on file with this Journal which develops the mathematics at length.

Nonjudicial Foreclosure Under Deed Of Trust May Be A Fraudulent Transfer Of Bankrupt's Property: Durrett V. Washington National Insurance Co., Franklin G. Snyder

Faculty Scholarship

In theory, the substantive rights of secured creditors such as mortgagees are affected much less by bankruptcy proceedings than those of unsecured creditors. In practice, however, bankruptcy proceedings have affected mortgagees. Filing a bankruptcy petition automatically stays pending foreclosures. Trustees in bankruptcy also can set aside foreclosures of certain liens obtained by unsecured creditors and certain mortgages and deeds of trust executed in the year preceding bankruptcy. The decision in Durrett adds yet another weapon to the bankruptcy trustee's arsenal: the power to void nonjudicial foreclosure sales even though the sale is proper and final under state law.

A Critique Of John Hart Ely's Quest For The Ultimate Constitutional Interpretivism Of Representative Democracy, James E. Fleming

Faculty Scholarship

Contemporary constitutional theory, John Hart Ely argues in Democracy and Distrust, is dominated by a false dichotomy between "clause-bound interpretivism" and "noninterpretivism." Clausebound interpretivists, such as the late Justice Hugo Black, believe that "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution" (p. 1). Noninterpretivists, such as the Supreme Court that produced the majority opinion in Roe v. Wade,2 contend that "courts should go beyond that set of references and enforce [substantive] norms that cannot be discovered within the four comers of the document" (p. 1). The genius of …

The Tax Benefit Of Bliss, Alan L. Feld

Faculty Scholarship

In recent years the Supreme Court has limited its substantive decisions in federal income tax matters.^I For the most part, the handful of tax cases it has considered each year deal with collection, liens, or other issues peripheral to doctrinal development in the tax area.² The Court's recent decision in Diedrich v. Commissioner,³ however, dealt with a realization question involving net gifts; and its grant of certiorari consolidating the cases of Bliss Dairy, Inc. v. United States and Hillsboro National Bank v. Commissioner⁴ promises a continuing interest in substantive tax law. Bliss Dairy will enable the …

The Free Speech Metamorphosis Of Mr. Justice Holmes, David S. Bogen

Faculty Scholarship

No abstract provided.

The Scope Of Section 1985(3) In Light Of Great American Federal Savings And Loan Association V. Novotny: Too Little Too Late?, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Fair Market Value In The Tax Law: Replacement Value Or Liquidation Value, Daniel S. Goldberg

Faculty Scholarship

No abstract provided.

Book Review (Reviewing Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air (1981)), John C. Dernbach, Thomas Y. Au

Faculty Scholarship

No abstract provided.

Juan Estevan Pino, "Se Los Coma": New Mexico Land Speculation In The 1820s", G. Emlen Hall

Faculty Scholarship

Ever since regional historians began taking New Mexico land history seriously, they have focused on changes in Spanish and Mexican land tenure brought on by the advent of American sovereignty in 1846. The confusing land claim adjudications by the United States' Office of the Surveyor General for New Mexico and Congress, and by the subsequent Court of Private Land Claims yield interesting stories. Manipulations of those confirmed rights in the 1870s, 80s and 90s by organized private interests tell an even more spectacular tale. But the pyrotechnics of territorial land speculation mask the fact that sharp dealing in New Mexico …

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

Faculty Scholarship

No abstract provided.

Reason And Law, George C. Christie

Faculty Scholarship

No abstract provided.

Life And Death Decisions In The Nursery: Standards And Criteria For Withholding Lifesaving Treatment From Infants, Steven R. Smith

Faculty Scholarship

That the conduct of human affairs does not always conform to the requirements of the law is a surprise to no one. But in few areas of critical life and death decisions is there such a disparity between commonly recognized principles of law and developing medical practice as exists in the area of withholding lifesaving medical care from infants, notably defective infants. The law is said to restrict physicians and parents from withholding lifesaving treatment from infants for the purpose of causing their deaths. Yet it is reported that it is not uncommon for lifesaving treatment to be denied severely …

A Graphic Review Of The Free Speech Clause, William W. Van Alstyne

Faculty Scholarship

This work acts as a spring board for the study of the Free Speech Clause of the First Amendment. It builds useful graphical representations of complex constitutional theories from the ground up, allowing students to follow both development and the application of these theories.