Digital Commons Network^™

Commentary: Constitutional Law, Joel Gora

Faculty Scholarship

No abstract provided.

Foreign Investors Real Property Tax Act: Historical Perspective And Critical Evaluation, William D. Metzger

Faculty Scholarship

This Article first discusses the United States tax treatment of foreigners generally and the pre-Foreign Investors Real Property Tax Act withholding and taxation scheme with respect to foreign investment in United States real estate. Then follows a discussion of the several ways in which foreign investors were, before the Act, able to avoid tax on the disposition of United States real estate and a critical evaluation of the Act's response to those avoidance methods. Finally, a discussion of the Act's enforcement provisions and a general discussion of withholding of tax on nonresidents is provided.

Free Speech, Property, And The Burger Court: Old Values, New Balances, Joel Gora, Norman Dorsen

Faculty Scholarship

No abstract provided.

The Case Against Shark Repellent Amendments: Structural Limitations On The Enabling Concept, Ronald J. Gilson

Faculty Scholarship

The tactical history of the tender offer movement resembles an unrestrained arms race. Faced with offeror assaults in the form of Saturday night specials, various types of bear-hugs, godfather offers, and block purchases, target management responded with equally intriguing defensive tactics: the black book, reverse bear-hug, sandbag, show stopper, white knight, and, drawing directly on military jargon, the scorched earth. But however varied the labels given particular defensive strategies, they share the common characteristic of being responsive: They are available only after an offer is made and the battle for the target's independence joined. From the target's perspective, what was …

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.

Intellectual Property, H. Dennis Kelly

Faculty Scholarship

Intellectual property refers to patents, trademarks, copyrights, and related matters. This subject has been absent from the symposium for two years. However, the importance of the cases in this area that were decided by the Fifth Circuit during the current survey period justifies a return of the subject to the symposium. The majority of these cases concern the validity of patents and are discussed in the first part of the Survey. The second part of the Survey is a discussion of an important case in the field of copyright law.

The Ohio Sunshine Act: An Appraisal, Frederic White

Faculty Scholarship

The Ohio open meetings or "Sunshine" law has existed in its present form since November 28, 1975 [hereinafter the "Sunshine Law" or "The Act"]. So-called open meeting legislation is neither new or unique to Ohio. Indeed, every state has enacted one or more open meetings laws. This article will examine the Sunshine Law to determine whether it has served its purpose, that is, making the processes of government more accessible to the citizens of the state of Ohio, and suggest some changes to increase the effectiveness of the legislation.

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Faculty Scholarship

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …

Ending The Dual System Of American Public Education: The Urgent Need For Legislative Action, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Overbreadth, Henry Paul Monaghan

Faculty Scholarship

The concern in constitutional law with "overbreadth" is generally understood to denote a conscious departure from conventional standing concepts in free-expression cases. Assertedly justified by the special vulnerability of protected expression to impermissible deterrence, overbreadth doctrine invites litigants to attack the facial validity of rules which burden expressive interests. A litigant whose expression is admittedly within the constitutionally valid applications of a statute is permitted to assert the statute's potentially invalid applications with respect to other persons not before the court and with whom the litigant stands in no special relationship. Judicial focus is not on the protected character, vel …

In Situ Growth Rates Of The Scleractinian Coral Oculina Varicosa Occurring With Zooxanthellae On 6-M Reefs And Without On 80-M Banks., John K. Reed

Faculty Scholarship

Rates of linear branch extension were determined for Oculina varicosa for one year on a nearshore, shallow-water reef (6 m] and on a shelf-edge. 0. varicosa coral bank (80 m) off central eastern Florida, U.S.A. Both site and season had a significant effect on growth with most of the variability due to the site factor. Linear branch growth was significantly greater at 80 m (x=16.1 mm/yr) than at 6 m (x= 11.3 mm/yr) although temperature was significantly lower at 80 m than 6 m (x=16.2, 24.6° C, respectively). The growth of the 6-m coral, possessing zooxanthellae, showed a negative response …

Seeking Competitive Bids Versus Pure Passivity In Tender Offer Defense, Ronald J. Gilson

Faculty Scholarship

Responding to my comments in the Stanford Law Review, and to those of Lucian Bebchuk in the Harvard Law Review, Professors Easterbrook and Fischel have reiterated their preference for a rule of pure passivity by target management in response to a tender offer. Unlike my more limited rule barring defensive tactics designed to prevent the offer but not barring the facilitation of competitive bids, Easterbrook and Fischel would prohibit both. Because their response to the points that Bebchuk and I raised goes beyond their initial treatment of the subject, it is appropriate that I respond here by extending …

The Case For Treason, George P. Fletcher

Faculty Scholarship

"If this be treason, make the most of it." Patrick Henry had no fear of the ultimate crime against his King. Nor did the burghers of Maryland who set ablaze the Peggy Stewart in Annapolis Harbor. One would think that for us as Americans the crime of treason would carry special significance. Our nation was born in acts of treason. The threat of prosecution made the crime foremost in the mind of the constitutional draftsmen. Indeed, treason is the only crime to find definition in our basic document.

There are other indications that the crime of treason is central to …

Legal Education Past And Future: A Summer Carol, A. Kenneth Pye

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 …

Promises In Morality And Law, Joseph Raz

Faculty Scholarship

J.L. Austin thought that philosophers have much to learn from lawyers and the law. No doubt philosophers and lawyers have a lot to learn from each other wherever their interests intersect. But until now philosophical analysis has done more to elucidate important legal concepts and distinctions than viceversa. P.S. Atiyah's Promises, Morals, and Law may redress this imbalance. In this book, one of today's most accomplished students of the common law examines the nature of promises and the grounds of their binding force. Written in Atiyah's characteristically vigorous and lucid style, the book is a philosophical treatise, but one that …

Reflections On Unclos Iii, Kazimierz Grzybowski

Faculty Scholarship

No abstract provided.

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

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 …

Developments In Banking Law: 1980-81, Dennis S. Aronowitz, Robert Volk

Faculty Scholarship

The years 1980 and 1981 were marked by a continuation and acceleration of change in the nation's financial institutions in general and in depository institutions in particular. Until recently, the banking and thrift industries have been unique in possessing the capacity to thrive in a changing economy without changing very significantly themselves. This phenomenon was largely attributable to a regulatory environment that protected depository institutions, minimizing competition from unregulated financial entities and imposing a form of organization that permitted institutions to thrive while conducting their activities in traditional ways. The advent of stubbornly high inflation and historically high interest rates …

Utility And Rights, David B. Lyons

Faculty Scholarship

Two notions concerning the relation of rights to utilitarianism seem widely accepted, by both utilitarians and their critics. The first is that utilitarianism is hostile to the idea of moral rights. The second is that utilitarianism is capable of providing a normative theory about legal and other institutional rights. This chapter chiefly concerns the second thesis, and argues against it. But it also says something about the first. In previous writings I have challenged the first thesis, but here I shall suggest that it is sound. The upshot is that utilitarianism has a great deal of trouble accommodating rights.

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."

Mandatory Pku Screening: The Other Side Of The Looking Glass, George J. Annas

Faculty Scholarship

The challenge that PKU screening programs face is to be effective without sacrificing individual liberty. Most states have assumed that this is impossible, and have enacted mandatory PKU screening tests. It now appears that in fact voluntary screening for PKU can be effective. Accordingly, it seems appropriate to reexamine existing mandatory screening statutes to determine if we can replace government coercion with voluntary informed consent. Focus should be placed on the proper role of the government in screening, and on improving the consent process, and not on those few couples who withhold consent.

Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon

Faculty Scholarship

In the recent and much publicized Universal City Studios, Inc. v. Sony Corp. of America (Betamax) case, the Court of Appeals for the Ninth Circuit held that persons who make videotapes of copyrighted television programs in the privacy of their homes should be considered to be copyright infringers. Basic to the court's reasoning was a misunderstanding of the "fair use" doctrine. Called "the most troublesome [doctrine] in the whole law of copyright," "fair use" renders noninfringing certain uses of copyrighted material that might technically violate the statute, but which do not violate the statute's basic purposes.

Model Rules Of Professional Conduct A Perspective, Geoffrey C. Hazard, Jr., Thomas Z. Hayward Jr.

Faculty Scholarship

No abstract provided.

Application Of Customary International Law By U.S. Domestic Tribunals, Lori Fisler Damrosch

Faculty Scholarship

In recent years there has been a significant expansion of the number and kinds of cases in U.S. courts raising issues of customary international law. U.S. courts are increasingly asked to enforce international norms of behavior against foreign governments, state and local governments, and indeed the U.S. Government itself. To a greater and greater extent the courts themselves have become actors on the international scene: in the view of one party to a lawsuit, judicial or quasi-judicial acts may threaten to violate international law, while in the view of another party those same sorts of acts can contribute affirmatively to …

Directly Unproductive, Profit-Seeking (Dup) Activities, Jagdish N. Bhagwati

Faculty Scholarship

This paper proposes directly unproductive, profit-seeking (DUP) activities as a general concept that embraces a wide range of recently analyzed economic activities, including the subset of rent-seeking activities considered by Krueger. It then proceeds to provide a syn-thesis and generalization of the welfare-theoretic analysis of such activities by developing a fourfold categorization of cases depending on the levels of distortions before and after the DUP activity. Thus a unification and overview of the subject are achieved.

The Skokie Legacy: Reflections On An "Easy Case" And Free Speech Theory, Lee C. Bollinger

Faculty Scholarship

Few legal disputes in the last decade captured public attention with such dramatic force as that involving a small band of Nazis and the village of Skokie. For well over a year, the case was seldom out of the news and often thought to merit front page coverage. It all began in the spring of 1977 when Frank Collin, the leader of the Chicago-based National Socialist Party of America, requested a permit to march in front of the Skokie village hall. The community, with a Jewish population of over 40,000, several thousand of whom had survived the Holocaust, mobilized all …

Sabotaging And Reconstructing History: A Comment On The Scope Of Copyright Protection In Works Of History After Hoehling V. Universal City Studios, Jane C. Ginsburg

Faculty Scholarship

This comment examines the Hoehling decision, and attempts a definition, in light of Hoehling and prior decisions, of historical "expression." A definition of historical expression is essential to analysis of an historian's infringement claim. Before the fact-finder determines whether a defendant's work is substantially similar to the historian's work, and if substantially similar, whether the fair use doctrine excuses the apparent infringement, the trial judge must first determine whether, as a matter of law, the portions the historian claims were infringed manifest copyrightable expression. If there is no or insufficient expression, the case closes at the summary judgment stage.

This …

Resale Price Maintenance And The Ftc: The Magnavox Investigation, Victor P. Goldberg

Faculty Scholarship

Franchise agreements between a manufacturer and a distributor or retail dealer of the manufacturer's products often impose conditions on the dealer regarding items such as price, dealer location, service, and advertising. These vertical restrictions, whether price or nonprice, may violate the Sherman Act, which prohibits every contract, combination, or conspiracy in restraint of trade. Whereas vertical price restrictions historically have been held per se invalid, nonprice vertical restrictions have been permitted, subject to a rule of reason. In United States v. Arnold, Schwinn & Co., however, the Supreme Court articulated a per se rule of illegality for nonprice vertical restrictions, …