Digital Commons Network^™

International Trade Issues For The 1990s, Jagdish N. Bhagwati

Faculty Scholarship

The open, multilateral trading system, centered on the General Agreement on Tariffs and Trade, is currently at risk. The threat continues to come from familiar directions. But there are new problems too.

"Were There No Appeal": The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

Our Localism: Part Ii – Localism And Legal Theory, Richard Briffault

Faculty Scholarship

A central theme in the literature of local government law is that local governments are powerless, incapable of initiating programs on behalf of their citizens or of resisting intrusions by the state. How can scholars make this claim when under state legislation and federal and state judicial decisions local autonomy plays a critical role in the law of school finance, land-use regulation and local government formation and preservation? As we have seen, a partial response turns on the varying assessments of the nature of power. But much of the answer also has to do with differing assumptions about the underlying …

The Devolution Of The Legal Profession: A Demand Side Perspective, Ronald J. Gilson

Faculty Scholarship

Economic analysis has not played a significant role in the increasingly intense debate over the decline of professionalism among lawyers.Economists' lack of interest in the issue may be understandable. The lawyers' lament is that the legal profession is devolving into the business of law. That this concern has not captured the economists' attention may reflect only that economists do not view the label "business" as a pejorative. If becoming a business means efficiently rendering an important service in a competitive environment, then of what is there to complain?

Lawyers, more directly concerned with maintaining their professional status, would find little …

Wealth And Property, Thomas W. Merrill

Faculty Scholarship

Professor Stephen Munzer's study of property rights is an ambitious work. Drawing on sources as diverse as Hohfeld, Hegel, Locke, civic republicanism, Marx, the classic utilitarians, and Rawls, he seeks to develop a "pluralist" theory of property, one that synthesizes a variety of philosophical perspectives into a single "basic theory" that can be used to assess and promote the reform of different property systems. Like most attempts to achieve a grand philosophical synthesis, however, this one ultimately fails. The most obvious problem is that Munzer's basic theory is too vague and unwieldy to generate determinate answers to the kinds of …

"Carrot And Stick" Sentencing: Structuring Incentives For Organizational Defendants, John C. Coffee Jr.

Faculty Scholarship

The new "Draft Guidelines for Organizational Defendants" released by the U.S. Sentencing Commission on October 25, 1990, explicitly adopt a "'carrot and stick' approach" to sentencing. While the boldly instrumental use made of sentencing penalties and credits in these guidelines will trouble some, the larger question is whether the Commission's social engineering will work. Two issues stand out: First, is the Commission's carrot mightier than its stick? At first glance, this may seem a surprising question because the "stick" in the Commission's guidelines seemingly packs a Ruthian wallop: fines under the draft guidelines are based on a multiple of the …

When The Judge Is Not The Primary Official With Responsibility To Read: Agency Interpretation And The Problem Of Legislative History, Peter L. Strauss

Faculty Scholarship

As the other pages of this journal reflect, writing about statutory interpretation commonly builds on unarticulated assumptions about the occasion for interpretation, the identity of the interpreter, and the character of the interpreted text. In this paradigm, the occasion for interpretation is a litigated case – an episode has occurred for which the application of the statute is problematic. The interpreter is a judge, a person who resolves litigation – typically episodic, typically backwards – working outside of politics, and bearing no generic responsibility (that is, responsibility outside the decision of the case before her) for the statutory regime. And …

The Original Conception Of Section 10(B) Of The Securities Exchange Act, Steve Thel

Faculty Scholarship

No abstract provided.

Common-Law Background Of Nineteenth-Century Tort Law, The , Robert J. Kaczorowski

Faculty Scholarship

A century ago Oliver Wendell Holmes, Jr., examined the history of negligence in search of a general theory of tort. He concluded that from the earliest times in England, the basis of tort liability was fault, or the failure to exercise due care. Liability for an injury to another arose whenever the defendant failed "to use such care as a prudent man would use under the circumstances.” A decade ago Morton J. Horwitz reexamined the history of negligence for the same purpose and concluded that negligence was not originally understood as carelessness or fault. Rather, negligence meant "neglect or failure …

Copyright Protection For Asic Gate Configurations: Plds, Custom And Semicustom Chips, Glynn S. Lunney Jr

Faculty Scholarship

Conventional wisdom holds that computer software and computer hardware require two different species of intellectual property protection. Software is thought best protected by copyright law, while hardware is thought best protected by patent law, trade secret law or the Semiconductor Chip Protection Act of 1984. Recent technological and legal developments blur software-hardware distinctions, as courts have extended copyright protection to object code, firmware and microcode, and patent protection to software. This note argues that the standard industry conceptions of hardware and software are inadequate to answer the legal question of what is copyrightable as a computer program. Furthermore, it considers …

Radiative Kaon Capture At Rest In Hydrogen, William J. Fickinger, D. K. Robinson

Faculty Scholarship

The photon spectrum from K- stopping in liquid hydrogen has been measured with a high-resolution (1.5% FWHM at 300 MeV) NaI(Tl) detector. The branching ratios for K-p→Λγ (Eγ=281.4 MeV) and K-p→Σ0γ (Eγ=219.5 MEV) were obtained. The results are RΛγ=(0.86±0.07-0.08+0.1)×10-3 and RΣ0γ=(1.44±0.20-0.10±0.12)×10-3 where the first error is statistical and the second systematic. These results are not in good agreement with published predictions or with previous Λγ measurements.

Doctors And Lawyers And Wolves, George J. Annas

Faculty Scholarship

Relations between lawyers and physicians, and therefore between law and medicine, are getting more and more destructive and counterproductive. It used to be a joke, but it's not funny anymore. We can't afford the continuing and escalating acrimony between our professions and it's time that we take constructive steps in the public interest to deal with it.

Conflicts Of Law (1989), Sharon N. Freytag, Don D. Bush, James Paul George

Faculty Scholarship

Conflicts of law occur when foreign elements appear in a lawsuit. Nonresident litigants, incidents in sister states or foreign countries, and lawsuits from other jurisdictions represent foreign elements that may create problems in judicial jurisdiction, choice of law, or recognition of foreign judgments, respectively. This Article reviews Texas conflicts of law during the Survey period from late 1987 through 1988. The survey includes cases from Texas state and federal courts. Excluded are cases involving federal state conflicts, criminal law, intrastate matters such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent …

Corporate Risk Management And Risk Communication In The European Community And The United States, Michael S. Baram

Faculty Scholarship

The responsibility of private firms to communicate hazard and risk information to government officials and persons at risk has emerged as one of the central features of corporate risk management in the European Community ("E.C.") and the United States ("U.S."). This function is commonly described as "risk communication."' In both the E.C. and the U.S., new legal requirements and public attitudes now promote corporate disclosure of hazard and risk information on an unprecedented scale.

Corporate risk management is a vast, complex field of activity that is largely unaddressed by commentators and unknown to the general public in both industrial societies. …

Health Law At The Turn Of The Century: From White Dwarf To Red Giant, George J. Annas

Faculty Scholarship

The evolution of stars is inexorable. From the form in which we currently view our own Sun, it and similar stars eventually expand as their exteriors cool to become red giants. When a red giant runs out of fuel, its exposed core will collapse to form a degenerate white dwarf and, eventually, a dead black dwarf.¹ Health law, as a discipline worthy of our attention, seems to have an opposite trajectory: from black dwarf to white dwarf, it is now on its way to becoming a red giant. The relevance of health law and the reasons for its exponentially …

The Biotechnology Revolution And Its Regulatory Evolution, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Amplifying Bose Corp. V. Consumers Union: The Proper Scope Of De Novo Appellate Review In Public Person Defamation Cases De Novo Appellate Review In Public Person Defamation Cases, Tigran W. Eldred

Faculty Scholarship

In 1984, the Supreme Court in Bose Corp. v. Consumers Union of United States, Inc.¹⁰ explicitly affirmed its longstanding practice¹¹ of independently reviewing a trial court's actual malice determination. At issue was whether an appellate court was bound under Federal Rule of Civil Procedure 52(a)¹² to defer to a trial court's finding of actual malice. The Court concluded that Rule 52(a) was inapplicable to the actual malice decision and that "[a]ppellate judges ... must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity."¹³ The Court, in accord with New York …

Atari Games V. Nintendo: Does A Closed System Violate The Antitrust Laws, Glynn S. Lunney Jr

Faculty Scholarship

As I rushed through the malls this past Christmas, I noticed a new store, one that would not have been possible just a few years ago. It was a Nintendo boutique. I was permitted only to gaze longingly at the games and accessories on display before being pulled away to shop for the things I would actually buy, but I thought it would be fun to return someday and purchase the system and perhaps a few cartridges and accessones.

So, I must admit that my perspective on the Atari v. Nintendo suits will not be that of an unaffected observer, …

The First Integration Of The University Of Maryland School Of Law, David S. Bogen

Faculty Scholarship

No abstract provided.

The Advent Of Zoning, Garrett Power

Faculty Scholarship

This essay looks at some of the lawyers and judges who were instrumental in the enactment and judicial approval of American zoning laws.

Equal Protection And A Deaf Person's Right To Serve As A Juror, Randy Lee

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, …

Biomedical Research In The Sea, A Search For Drugs And Novel Compounds., John K. Reed, Shirley A. Pomponi

Faculty Scholarship

Biomedical research has discovered numerous pharmaceutical drugs and novel compounds produced by living organisms. Most of this research has focused on terrestrial sources but a potential reservoir of untapped drugs is being discovered in the oceans. Compounds produced from marine sponges, tunicates, bryozoans, soft corals and algae are being tested as potential agents against cancer, AIDS and other diseases. In this effort, the goal of the Division of Biomedical Marine Research (DBMR) at Harbor Branch Oceanographic Institution (HBOI) is to isolate and identify bioactive compounds from marine organisms. Since 1984 over 16,000 macroorganisms have been collected worldwide by HBOI personnel …

Wanted: An Ethos Of Personal Responsibility—Why Codes Of Ethics And Schools Of Law Don't Make For Ethical Lawyers, Daniel S. Kleinberger

Faculty Scholarship

This article: (1) argues that neither codes of professional ethics nor traditional modes of law school teaching do much to produce ethical lawyers; (2) asserts that ethics codes and the presuppositions of the adversary system work to alienate lawyers from a sense of individual responsibility; (3) critiques the conceptual connection between the adversary system and codes of lawyer ethics; (4) critiques the conventional approach to teaching legal ethics in law schools; (5) invokes the approach to ethical analysis championed by the German sociologist and social theorist Max Weber; and (6) explains how that approach, coupled with traditional tools of legal …

Authority In The Dock, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Static And Dynamic Scaling Relationships In The Light Scattering Properties Of Polystyrenes In Good Solvents, Mamta Bhatt, Alexander M. Jamieson, Rolfe G. Petschek

Faculty Scholarship

Static light scattering measurements are reported on narrow molecular weight distribution polystyrenes (Mw = 3.84 × 106) in the four good solvents, ethylbenzene, benzene, toluene, and tetrahydrofuran at 25°C. These data are plotted in a "scaling" form to directly compare the equilibrium structure factor of identical polystyrene samples in the different solvent systems. The results in tetrahydrofuran are clearly distinct from those in the aromatic solvents and apparently suggest that THF is a thermodynamically better solvent. These distinctions between our results for identical, high molecular weight polymer samples in different good solvents demonstrate that these molecular weights are not high …

Administrative Law Symposium: Question & Answer With Professors Elliott, Strauss, And Sunstein, Dick Pierce, Donald Elliott, Peter L. Strauss, Cass Sunstein

Faculty Scholarship

No abstract provided.

Efficient Remedies For Breach Of Warranty, Kenneth Chapman, Michael J. Meurer

Faculty Scholarship

This article attempts to suggest valuable refinements and extensions of the economic theory of warranty by explicitly considering the choice of remedies for breach of warranty in conjunction with the choice of warranty protection itself. In particular, it offers explanations for the prevalence of replacement terms rather than refund terms in warranties. Economists studying the general issue of breach of contract have noted that the choice of remedy has important implications for risk sharing, renegotiation, transaction-specific investment, and the incentive to breach.5 This article derives much of its insight from the recognition that work on the economics of contract breach …

Privacy And The Regulation Of The New Reproductive Technologies: A Decision-Making Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

This article maps out the territory that must be explored in this very complex area and analyzes the implications of governmental regulation of the new reproductive technology. It suggests that the central issue for analysis is the extent to which authority to make decisions concerning reproductive potential should be allocated to individuals rather than to the government. The article describes approaches to allocating decision-making authority with respect to procreative issues. The first is a rights-based approach which emphasizes individual autonomy; this approach will not permit governmental regulation which interferes with personal autonomy in decision making, at least without good reason. …

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

Faculty Scholarship

No abstract provided.