Digital Commons Network^™

Of "Liberty" And "Property", Henry Paul Monaghan

Faculty Scholarship

After a century of experience, we are now thoroughly accustomed to viewing the fourteenth amendment as imposing upon the experimentation otherwise permitted in our fifty separate "laboratories" limitations that do not materially differ from those fastened upon the national government by the bill of rights. The history of this evolution is far too well known to justify rehearsing here even in the barest outline. But it bears noting that few, if any, observers believe that the language of the amendment has played a significant role in this historical evolution. Here, as elsewhere, "[b]ehind the words ... are postulates which limit …

Liquidated Damages, Penalties And The Just Compensation Principle: Some Notes On An Enforcement Model And A Theory Of Efficient Breach, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

For more than five centuries, strict judicial scrutiny has been applied to contractual provisions which specify an agreed amount of damages upon breach of a base obligation. Although the standards determining the enforceability of liquidated damage clauses have developed novel and labyrinthine permutations, their motivating principle has remained essentially immutable. For an executory agreement fixing damages in case of breach to be enforceable, it must constitute a reasonable forecast of the provable injury resulting from breach; otherwise, the clause will be unenforceable as a penalty and the non-breaching party will be limited to conventional damage measures.

The historical genesis of …

Beyond The Shut-Eyed Sentry: Toward A Theoretical View Of Corporate Misconduct And An Effective Legal Response, John C. Coffee Jr.

Faculty Scholarship

Like hard cases, festering scandals make bad law. As public perceptions shift so that conduct once tolerated becomes seen as illicit, political pressures develop that can result in hastily improvised responses by the legal system to fill the newly perceived vacuum. This generalization is advanced to question neither the inalienable right of the public to be scandalized, nor the need for corporate reform, but to approach a highly problematic dilemma: hurried, moralistic responses to a perceived evil often prove not only ineffective, but even counterproductive. The serious student of complex organizations may recognize this assertion as a slightly altered variant …

Towards Integrated Management Of International Trade - The U.S. Trade Act Of 1974, Kazimierz Grzybowski, Victor Rud, George Stepanyenko

Faculty Scholarship

No abstract provided.

Allocation Of Artificial Hearts In The Year 2002: Minerva V. National Health Agency, George J. Annas

Faculty Scholarship

The rapid growth of medical technology gives rise to difficult dilemmas concerning the appropriateness of, and access to, new equipment and devices capable of maintaining life or improving its quality. Such a dilemma already exists, for example, with regard to kidney dialysis machines. In 1972, Congress amended the Social Security Act to make such machines available under Medicare to all who needed them. But almost immediately the overwhelming cost of such equipment-in the billions of dollars-made the original appropriations totally inadequate, and prompted serious questions of whether access to kidney dialysis should be made available at public expense-and, if so, …

Justice Tobriner: Portrait Of The Judge As An Artist, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Interlocutory Injunctive Relief In Environmental Cases: A Primer For The Practitioner, John D. Leshy

Faculty Scholarship

No abstract provided.

Prosecutorial Discovery And The Privilege Against Self-Incrimination: Accommodation Or Capitulation, Gordon Van Kessel

Faculty Scholarship

No abstract provided.

Barred From The Bar: Women And Legal Education In The United States 1870-1890, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

The Supreme Court In Current Literature, Jenni Parrish, Roy Mersky

Faculty Scholarship

No abstract provided.

Divorce, Tax-Style, Alan L. Feld

Faculty Scholarship

In response to the "sham divorce" tactic, the IRS recently issued Revenue Ruling 76-255. The author, professor of law at Boston University School of Law, although sympathetic with the IRS's position in the Ruling, poin4s out situations where the divorce-remarriage may possibly be considered valid because of the existence of nontax effects.

Vulnerability Of Professional-Client Privilege In Shareholders Litigation, F. Hodge O'Neal, Stephen R. Thompson

Faculty Scholarship

No abstract provided.

Political Censorship: Some Reflections On Its Validity In Israel's Constitutional Law, Pnina Lahav

Faculty Scholarship

On 19 January 1976, the Government of Israel announced its intention to impose censorship on two categories of information:

(1) Information about the existence or content of a document relating to Israel's foreign affairs which is classified “top secret” or similarly classified and which is addressed from Israel to a foreign country or from a foreign country to Israel.

(2) Information relating to a visit by an Israeli official to a foreign country or a visit by a foreign official to Israel, or a meeting between an Israeli and a foreign official—when no diplomatic relations obtain between Israel and that …

The Supreme Court's Interpretation Of The Guarantee Of Freedom Of Speech, David S. Bogen

Faculty Scholarship

No abstract provided.

A Practitioner's Guide To The Maryland Antitrust Act, William L. Reynolds, James D. Wright

Faculty Scholarship

No abstract provided.

Introduction To The Welfare Law Issue, John J. Capowski

Faculty Scholarship

No abstract provided.

Pro Se Litigation -- Litigating Without Counsel: Faretta Or For Worst, Susan Herman, Ira P. Robbins

Faculty Scholarship

No abstract provided.

Sex Discrimination: Social Security Benefits, Neil B. Cohen, Catherine A. Broderick, Charles H. Klein

Faculty Scholarship

No abstract provided.

The Use And Abuse Of Warnings In Products Liability -- Design Defect Litigation Comes Of Age, Aaron Twerski, A. S. Weinstein, W. A. Donaher, H. R. Piehler

Faculty Scholarship

No abstract provided.

Regulation Of Electroconvulsive Therapy, Carol Sanger

Faculty Scholarship

Electroconvulsive therapy (ECT) is a psychiatric procedure that induces a convulsive seizure in the patient in order to treat severe depression. Recently, courts, legislatures, and the medical profession have paid increasing attention to the regulation of ECT. Their interest has been stimulated by the growing recognition of the rights of mental patients, the developing role of consent in medical transactions, and the results of recent scientific research on the efficacy and consequences of ECT.

Regulation of ECT has generally focused on whether the patient or his representative effectively consented to the treatment. The highly intrusive nature of ECT and the …

Juris: Legal Information In The Department Of Justice, James E. Hambleton

Faculty Scholarship

JURIS is the computerized legal information system being developed by the Department of Justice for use by its attorneys. The system has been devised not only to help in statutory and case law research, but to provide access to memoranda, briefs, and other work products generated in daily departmental activity. From modest beginnings, JURIS has grown in use and in data-base capabilities. JURIS search strategy, which involves building up sets of data into a search "tree" has proven to be effective for its users. After a year-long evaluation project was completed in May 1975, the results indicated enough user acceptance …

Tax Policy Implications Of Contributions Of Appreciated And Depreciated Property To Partnerships, Subchapter C Corporations And Subchapter S Corporations In Exchange For Ownership Interests, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

Congressional Papers And Judicial Subpoenas And The Constitution, David H. Kaye

Faculty Scholarship

Some contemporary Congresses have lost sight of the original scope of their predecessors' assertions of privilege and now claim an absolute privilege to withhold both the originals and copies of subpoenaed papers. A few judicial opinions suggest as much or more. It is possible that even cursorily documented, ill-considered dicta can take root and flourish, and to prevent that, this article This article charts the constitutional boundaries of Congress' privilege to withhold its internal papers from judicial subpoena. It surveys the privileges expressly given Congress in the text of the Constitution as well as the privileges that might be implied …

The Senegal Valley Authority: A Unique Experiment In International River Basin Planning, Theodore Parnall, Albert E. Utton

Faculty Scholarship

The OMVS (l'Organisation Pour la Mise en Valeur du Fleuve Senegal) is a unique exception to this assessment. The three West African governments of Mali, Mauretania, and Senegal (the "Member States") are engaged in an experiment in international organization that is not only following the most advanced concepts of integrated river basin development,, but which may also afford a lesson in cooperation on a broad scale. This article is intended as a description of the organizational history and structure of the OMVS and a comparison with those of other international river commissions with similar goals.

Public Opinion, The Death Penalty, And The Eighth Amendment: Testing The Marshall Hypothesis, Neil Vidmar, Austin Sarat

Faculty Scholarship

No abstract provided.

Consent And The Roots Of Judicial Authority: The Constitutional Writings Of Archibald Cox (Book Review), Thomas D. Rowe Jr.

Faculty Scholarship

Reviewing A. Cox, The Role of the Supreme Court in American Government

Uniformity In State Inheritance Laws: How Upc Article Ii Has Fared In Nine Enactments, Richard V. Wellman, James W. Gordon

Faculty Scholarship

The Uniform Probate Code was drafted to facilitate modernization, simplification, and uniformity of state inheritance laws. Since its approval by the National Conference of Commissioners on Uniform State Laws and by the American Bar Association in August 1969, the Code has been enacted in various forms by 11 states. In this Article, the Authors analyze significant deviations from the recommended version of article II in the first nine enactments of the UPC. The Authors argue that all but exceptionally meritorious changes in enacted versions of the UPC should give way to the goal of state uniformity in inheritance laws, and …

On Reading Cramton, Currie & Kay -- Reflections And Prophecies For The Age Of Interest Analysis, Aaron Twerski

Faculty Scholarship

No abstract provided.

Freedom Of The Press And Public Access: Toward A Theory Of Partial Regulation Of The Mass Media, Lee C. Bollinger

Faculty Scholarship

During the past half century there have existed in this country two opposing constitutional traditions regarding the press. On the one hand, the Supreme Court has accorded the print media virtually complete constitutional protection from attempts by government to impose affirmative controls such as access regulation. On the other hand, the Court has held affirmative regulation of the broadcast media to be constitutionally permissible, and has even suggested that it may be constitutionally compelled. In interpreting the first amendment, the Court in one context has insisted on the historical right of the editor to be free from government scrutiny, but …

The Definition Of Disability In Social Security And Supplemental Security Income: Drawing The Bounds Of Social Welfare Estates, Lance Liebman

Faculty Scholarship

Federal aid to the disabled is a vast enterprise; over nine billion dollars are annually paid to five million beneficiaries. In this Article, Professor Liebman points out how the ad hoc nature of social welfare legislation and programming has resulted in a system that produces inconsistent and sometimes inequitable determinations of disability. The present system, he argues, draws significant economic and social distinctions among the disabled, as well as distinctions between the disabled and the unemployed, that have been inadequately explained and justified. By focusing on worker expectations generated by the administration of our disability programs, and on the structural …