Digital Commons Network^™

Article One Of The Uniform Land Transactions Act: Is Inconsistency With The U.C.C. An Unnecessary Obstacle?, Ronald B. Brown

Faculty Scholarship

No abstract provided.

"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.

Faculty Scholarship

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?
—Edward, First Baron Thurlow 1731-1806

The Lord Chancellor of England quoted above was neither the first nor the last judge to experience frustration when faced with a convicted corporation. American sentencing judges are likely to face a similar dilemma with increasing frequency in the near future, for a number of signs indicate that corporate prosecutions will become increasingly commonplace. At first glance, the problem of corporate punishment seems perversely insoluble: moderate fines do not deter, …

Linguistic Legislation And Transnational Commercial Activity: France & Belgium, Thomas E. Carbonneau

Faculty Scholarship

For French and francophonic people, the continued vitality of their linguistic heritage is an integral part of their sense of national identity and cultural cohesiveness. The truth of this statement has been corroborated recently by legislative enactments in France and in Belgium which prescribe and/or recommend the use of French in certain private commercial and governmental activity taking place within these countries. This legislation represents an attempt to provide a partial remedy to what has been perceived generally as the syntactical and lexical "contamination" of the French language resulting from the dominance of English or, more precisely, American English, in …

The Reform Of The French Procedural Law On Arbitration: An Analytical Commentary On The Decree Of May 14, 1980, Thomas E. Carbonneau

Faculty Scholarship

Prior to May 1980, the French domestic law on arbitration had not been subject to any substantial legislative reform since the early nineteenth century. The procedural part of that law, which contained practically all of the French legislative provisions applying to arbitration, was out of date and in need of reconsideration.

Despite the considerable French procedural law reforms enacted in 1975, articles 1005 through 1028 of the Nouveau Code de procédure civile had not been revised to any significant extent since the enactment of the Code de procédure civile in 1806.

The basic intention of the new legislative text is …

Paradoxes, Gedanken Experiments And The Burden Of Proof: A Response To Dr. Cohen's Reply, David H. Kaye

Faculty Scholarship

This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one …

The Emerging Threshold Approach To State Action Determinations: Trying To Make Sense Of Flagg Brothers, Inc. V. Brooks, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Sleight Of Handwriting: The Holographic Will In California, Gail Boreman Bird

Faculty Scholarship

No abstract provided.

Revocation Of A Revoking Codicil: The Renaissance Of Revival In California, Gail Boreman Bird

Faculty Scholarship

No abstract provided.

Regulatory Reform In A Time Of Transition, Peter L. Strauss

Faculty Scholarship

As Americans have become both disheartened at the performance of their governments and conscious of their penetration into what were once private lives, regulatory reform has been urged with increasing fervor at both federal and state levels. Some of the reform talk is lawyer's talk, some of it is directed to the most fundamental aspects of the government order, and there is a good bit in between. My purpose here is to examine a number of the directions being suggested at the federal level for regulatory reform during the coming decade. While it would be helpful also to consider state …

Competency To Stand Trial Under The Senate And House Proposed Revisions Of The Federal Criminal Code, Leo M. Romero

Faculty Scholarship

In 1980 the judiciary committees of the Senate and the House of Representatives reported bills revising the federal criminal code. Although neither of these bills was enacted by the Ninety-Sixth Congress, they represent the culmination of efforts, over a period of a decade, to revise and reform the federal criminal laws in a comprehensive code.

French Codification Of A Legal Framework For International Commercial Arbitration, W. Laurence Craig, William W. Park, Jan Paulsson

Faculty Scholarship

Resolution of a dispute arising under an international commercial contract frequently has been plagued with uncertainty regarding applicable substantive and procedural law. These problems are not necessarily solved by the presence of an arbitration clause in the contract. In the absence of a clearly defined arbitral system, the parties can not be certain of the rules regarding the arbitral procedure or the recognition and enforcement of arbitral awards. By enacting a decree that specifically applies to international commercial arbitration, France has recently taken a major step toward resolving the uncertainties surrounding the resolution of international commercial disputes. The authors analyze …

Union Waiver Of Employee Rights Under The Nlra: Part I, Michael C. Harper

Faculty Scholarship

The author formulates a principle, based on the Supreme Court decision in NLRB v. Magnavox, to distinguish which employee rights protected by section 7 may not be waived by unions in collective bargaining agreements. In this article, the non-waiver principle is applied to the right to strike. In the next issue, Professor Harper will address application of the principle to Board deferral to arbitration, drawing on former Board Chairman Murphy's swing vote opinion in General American Transportation Corp.

Union Waiver Of Employee Rights Under The Nlra: Part Ii - A Fresh Approach To Board Deferral To Arbitration, Michael C. Harper

Faculty Scholarship

The author applies the non-waiverprinciple developed in Part I of this article to Board deferral to arbitration. Former Chairman Murphy's concurring opinion in General American Transportation Corp. is evaluated in light of the non- waiver princple. The author analyzes the issues not properly resolved in that opinion, while demonstrating its basic insight.

In Part 1 of this essay, I explored the implications of the Supreme Court's holding in NLRP v. Magnavox Co. that exclusive bargaining agents do not have the authority to waive certain rights protected by section 7 of the National Labor Relations Act. Drawing on Magnavox, …

The Right To Privacy In Nineteenth Century America, David J. Seipp

Faculty Scholarship

On December 15, 189o, Samuel D. Warren and Louis D. Brandeis, two young Boston law partners, published an article in the Harvard Law Review entitled The Right to Privacy. In that article, they proposed a remedy for invasions of personal privacy by the press. More than ninety years later, protection of privacy has become a major concern of the law. Legal scholars have organized the extensive body of case law into a coherent common law of privacy; the Supreme Court has enshrined the right to privacy in the "penumbra" of the Bill of Rights; and Congress has enacted additional safeguards.

Tax Characterization Of International Leases: The Contours Of Ownership, William W. Park

Faculty Scholarship

Pondering the human tendency to pay dearly for short-lived adornments, Shakespeare asks a question of interest to lawyers as well as poets: "Why so large cost, having so short a lease.. .? The lawyer's analysis of the issue might begin with a scenario set in an imaginary world in which the tax effects of business transactions are determined by their legal form rather than their economic substance. In such a world, each of two companies decides to build a new factory. One acquires the land outright, paying in several installments. The other enters into a shortterm lease at a very …

The Elaboration Of A French Court Doctrine On International Commercial Arbitration: A Study In Liberal Civilian Judicial Creativity, Thomas E. Carbonneau

Faculty Scholarship

The task of the present article is to examine the historical evolution and current status of the French judicial doctrine on international commercial arbitration. It endeavors to compare the international doctrine with the French domestic law on arbitration and to illustrate briefly its conformity to the provisions of the international conventions on arbitration to which France is a party. Its chief design, however, is to concentrate upon the court decisions themselves, underscoring their progressive quality and pointing to their systemic implications.

Two Modes Of Legal Thought, George P. Fletcher

Faculty Scholarship

We should begin with a confession of ignorance. We have no jurisprudence of legal scholarship. Scholars expatiate at length on the work of other actors in the legal culture – legislators, judges, prosecutors, and even practicing lawyers. Yet we reflect little about what we are doing when we write about the law. We have a journal about the craft of teaching, but none about the craft of scholarship.

In view of our ignorance, we should pay particular heed to our point of departure. I start with the observation that legal scholarship expresses itself in a variety of verbal forms. Descriptive …

Professional Responsibility Issues In International Law Practice , Roger J. Goebel

Faculty Scholarship

The present Code of Professional Responsibility (CPR) is essentially geared to guide the conduct of the lawyer as advocate or litigator. It is certainly of assistance to the American international lawyer in establishing guidelines for his conduct, but only of limited assistance since the international lawyer usually serves more as an advisor to, or negotiator for, his clients. In contrast, the recent ABA draft Model Rules of Professional Conduct (MRPC) provide a more useful basis for examination of the international lawyer's ethical responsibilities, as they do in many respects for the corporate or commercial lawyer who assists domestic clients in …

Plain English Movement, The Plain English Movement: Panel Discussion, Carl Felsenfeld

Faculty Scholarship

One of the dominant events between 1975 and today in United States consumer law was the birth of what has become known as the "plain English movement". For centuries lawyers have been derided for the nature of their prose. A word will not suffice where two or even three can take its place; long sentences are preferable to short ones; Latin, or perhaps medieval French, are preferable to English. The plain English movement is the name given to the first effective effort to change this and to write legal documents, particularly those used by consumers, in a manner that can …

Foreign Ownership And The Theory Of Trade And Welfare, Richard A. Brecher, Jagdish N. Bhagwati

Faculty Scholarship

Some standard topics in the theory of international trade are reconsidered in this paper by distinguishing between national and aggregate income when fixed supplies of foreign inputs are present within the home country. Under conditions that would ensure a national welfare gain if' foreign ownership were absent, international transfer, economic growth, or tariff policy might cause a national welfare loss in the presence of foreign ownership. The techniques developed could be applied to other domestic distinctions (such as those based on race, sex, age, or ethnicity) and to the theory of' customs unions in a three-country world.

Amniocentesis And The Apotheosis Of Human Quality Control, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

Book Review: Slouching Toward Bethlehem With The Ninth Amendment, William W. Van Alstyne

Faculty Scholarship

When Charles Black writes, he writes with the certitude and righteousness of an Old Testament prophet.

Justice Douglas And His Brethren: A Personal Recollection, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

The Use Of Social Science Data In A Change Of Venue Application: A Case Study, Neil Vidmar, John W. T. Judson

Faculty Scholarship

This article describes how social science data and professional testimony were used to assist judicial decision-making in an application to have a criminal fraud trial moved from Middlesex County, Ontario, because of prejudicial attitudes extant in the community. Typically, in such applications, tenuous documentation of pre-trial publicity and perhaps some unsubstantiated "opinion" testimony by persons purportedly in touch with the pulse of the community are the only evidence introduced . The presiding judge is required to consider this circumstantial, indirect, evidence and draw a conclusion about the level and extent of public prejudice as the merits of the application are …

The Perils Of Writing An Intellectual History Of Torts, George C. Christie

Faculty Scholarship

No abstract provided.

Busfare Increases And Administrative Irregularities, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Expenses: The Roadblock To Justice, Maurice Rosenberg, Peter F. Rient, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Protecting Privacy Under The Fourth Amendment, Rory Little

Faculty Scholarship

No abstract provided.

Tort Responsibility Of Mentally Disabled Persons, James W. Ellis

Faculty Scholarship

The standard of care to be applied in tort cases involving mentally disabled people has not been reconsidered in recent years. Traditional rationales for the "objective" standard are less persuasive in the context of current legal approaches to the rights of mentally ill and retarded persons. Analogies to children (especially the concept of "mental age") and to physically handicapped adults merit reexamination. The objective standard of care for mentally disabled defendants was an outgrowth of the ideology of confinement-an ideology that society has since abandoned. Adoption of a subjective standard would not right a vast number of grave injustices, nor …

Teaching Physicians And Lawyers To Understand Each Other: The Development Of A Law And Medicine Clinic, Robert L. Schwartz

Faculty Scholarship

The discomfort doctors and lawyers feel with one another is not a consequence of the perceived medical malpractice crisis or any other single area of substantive disagreement. Rather, it is a reflection of the different epistemologies of the professions. The truth seeking activities of the two professions are very different, and these differences are reflected in the widely divergent professional educations provided to medical and law students. Much of the animosity which has developed between doctors and lawyers could be avoided, and members of each profession could have a much better understanding of the substance and analytic methods of the …