Digital Commons Network^™

Reflections On Fuller And Perdue's The Reliance Interest In Contract Damages: A Positive Economic Framework, Avery W. Katz

Faculty Scholarship

Fuller and Perdue's classic article, The Reliance Interest in Contract Damages, is regarded by many contemporary contracts scholars as the single most influential law review article in the field. For those of us who teach and think about contracts from the perspective of law and economics, the consensus would probably be close to unanimous. The article displays an approach highly congenial to an economic perspective. The connection goes beyond Fuller and Perdue's explicitly functional approach to law (which law and economics shares with other schools of thought descended from the legal realists) and beyond Fuller and Perdue's focus on …

Holmes And Brandeis: Libertarian And Republican Justifications For Free Speech, Pnina Lahav

Faculty Scholarship

Writing The Name of the Rose, observed Umberto Eco, made him aware of the "echoes of intertextuality." He discovered what "Homer, Rabelais and Cervantes have always known: . . .books always speak of other books, and every story tells a story that has already been told."' The same applies to political and legal theories: they weave the past into the present. Thus, in articulating justifications for freedom of speech, one may look to modern works such as Milton or John Stuart Mill, or one may reach farther back to Aristotle, Plato or Pericles. The choice of intellectual sources as …

In Praise Of Woodenness, Gary S. Lawson

Faculty Scholarship

Not long ago, I was a stalwart champion of judicial terrorism on behalf of economic liberty. In recent years, however, I have become a meek, mildmannered originalist whose favorite adjective is "wooden."' I still like economic liberty as much as the next person - in fact, more than at least one of the next two persons. Nonetheless, much as I would like to, I cannot agree that the Constitution requires a free market to the extent urged by, among others, Roger Pilon, Bernard Siegan,3 Steven Macedo, 4 Randy Barnett,5 and Richard Epstein.6 My aim here is not to criticize their …

Fairy Tales Surrogate Mothers Tell, George J. Annas

Faculty Scholarship

How did surrogate motherhood evolve from a "hare-brained, fly by night" idea of the late 1970s into one that had at least some mainstream, middle-class support in the mid-198os? Many explanations have been suggested. Although the rate of infertility has not increased, infertility is no longer a secret, and there are major public support groups, like RESOLVE, that advocate for infertile couples. New and powerful techniques like IVF (in vitro fertilization) have been developed, and although they help very few people, they have been widely publicized and approved. And babies are fashionable again. As one movie critic put it: "Men …

Taxation Without Premeditation: An Economic Analysis Of The Structure, Regulation And Strangulation Of The Private Activity Bond Market, Kevin Outterson

Faculty Scholarship

Private Activity Bonds (PABs) are private debt issued under the auspices of state governments. The states issued $119.4 billion dollars of long-term PABs in 1985. Utilizing the state government conduit transforms the bond interest into federally tax exempt income. As a result, PABs bear lower interest rates than comparable taxable bonds. PAB financing significantly reduces private capital costs at the expense of the Federal Treasury. The structure of the PAB subsidy is fundamentally flawed. State governments subsidize local businesses and investments with PABs, often in competition with sister states. The states receive significant local benefits, but bear no direct costs …

The Ethics Of Insider Trading, Gary S. Lawson

Faculty Scholarship

The quickest way to become famous is often to become infamous, as arbitrageur Ivan Boesky has recently discovered. Prior to November 1986, Mr. Boesky was well-known within the financial community, but largely unknown outside it. That changed dramatically following revelations that he and Dennis Levine, a merger specialist with the investment banking firm of Drexel Burnham Lambert, Inc., had made tens of millions of dollars in the stock market by using Mr. Levine's advance knowledge of impending takeovers by Drexel clients. Today, after disgorging $50 million in profits, paying $50 million in penalties, and receiving a jail sentence, Mr. Boesky …

Nationwide Service Of Process: Due Process Limitations On The Power Of The Sovereign, Robert A. Lusardi

Faculty Scholarship

There are a number of instances in which a federal court asserts personal jurisdiction by service of process beyond the territorial limits of the state in which it sits. The most common examples of these assertions of jurisdiction are the use of a state's long-arm statute and the "bulge" provision of the federal rules. But, in addition, there are a number of statutes by which Congress has authorized nationwide service of process in particular circumstances.

It is generally accepted that Congress may authorize expansion limits of the states in which it sits, including authorization of extraterritorial service of process. However, …

A Causation Approach To Criminal Omissions, Arthur Leavens

Faculty Scholarship

This Article examines the scope of criminal laws that impose liability for failures to prevent a proscribed harm. Traditionally, courts have only imposed criminal sanctions upon individuals for their failure to act where the individual has a "legal duty" to prevent a specific harm. Professor Leavens rejects this conventional approach as being an artificial and ultimately unfair way to set the limits of omission liability. He asserts that in order for the courts validly to utilize any concept -- including "legal duty"-- to define the scope of omission liability, that concept must fairly reflect the underlying criminal prohibition; namely, that …

Toward A Race-Conscious Pedagogy In Legal Education, Kimberlé W. Crenshaw

Faculty Scholarship

It is both an honor and a pleasure to write the Foreword for this issue of the National Black Law Journal. This project represents the culmination of a joint effort involving the NBLJ, Dean Susan Westerberg Prager and me. The project grew out of discussions that began in the Spring of 1987 in which we explored various ways that the law school could support the production of publishable student material for the Journal. I initially considered sponsoring interested students in independent research projects; however, a high level of student interest, an obvious overlap between proposed student topics, and my …

A Reply To Michael Goldsmith, Gerard E. Lynch

Faculty Scholarship

I am grateful for Professor Michael Goldsmith's response to my discussion of RICO. It is always gratifying to find that one's writings have stimulated thought and debate.

Professor Goldsmith's criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO's adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith's arguments are not persuasive.

The Uncertain Case For Takeover Reform: An Essay On Stockholders, Stakeholders And Bust-Ups, John C. Coffee Jr.

Faculty Scholarship

In this Article, Professor John Coffee considers under what circumstances there could be a legitimate role for state regulation of tender offers. Professor Coffee suggests that state anti-takeover laws could (but do not) function to protect other stakeholders, including corporate management, in the target corporation where the implicit contract between the corporation and these stakeholders has broken down. He advances a model of corporate directors as mediators between shareholders and stakeholders in order to protect the expectations embodied in a web of implicit and explicit contracts.

Professor Coffee suggests that takeovers would be more palatable if the interests of stakeholders …

The Index To Legal Periodicals On Cd-Rom, Wilsondisc, Marsha Baum

Faculty Scholarship

About the Index to Legal Periodicals functionality now that it is on CD.

An Examination Of Real Estate Purchase Options, Ronald B. Brown

Faculty Scholarship

No abstract provided.

The Wrongs Of Legal Writing, John C. Dernbach

Faculty Scholarship

No abstract provided.

Economists As Judges: A Selective, Annotated Bibliography, Janet Sinder

Faculty Scholarship

No abstract provided.

Determining Limitation Periods For Actions Arising Under Federal Statutes, Neil Sobol

Faculty Scholarship

Time limitations for cause of action are an integral part of the American system of law. These limitations define time periods following the accrual of the right of action in which a litigant must assert his claim. If the litigant fails to commence his suit within the specified time period, the court will generally deny relief. Given that failure to commence a suit before the limitation period has expired may deny an injured party relief and allow a wrongdoer to escape without providing such relief, litigants must be able to determine the limitation periods that will apply to their particular …

Compensation Programs For Vaccine-Related Injury Abroad: A Comparative Analysis, Wendy K. Mariner

Faculty Scholarship

Adverse physical reactions to immunizations, ¹ although comparatively rare, raise fundamental questions about the relationship between the state and the individual. In the United States, responsibility for vaccine-related injuries has been judicially and administratively debated for nearly two decades, beginning with the seminal decision of Davis v. Wyeth Laboratories. The primary issue is whether a person who suffers an unpredictable adverse reaction to a vaccination is entitled to receive compensation for his or her injuries, and if so, whether compensation should be provided by the manufacturer of the vaccine as part of its responsibility for the effects of its products, …

Novel Ferroelectric Fluids, Rolfe G. Petschek, Kimberly M. Wiefling

Faculty Scholarship

While there is no fundamental reason that fluids should not be ferroelectric the only known ferroelectric fluids are chiral smectic-C liquid crystals. In this paper we argue that a variety of nonchiral layered (smectic) phases composed of properly designed oligomeric or polymeric molecules will also be ferroelectric. These ferroelectric fluids, and the solids formed by quenching them, should be of fundamental and practical interest. The nature of these phases, the design of the relevant molecules, and the experimental techniques for identifying the phases are discussed qualitatively.

The Processing Of Felonies In The Superior Court Of Alameda County 1880-1974, Lawrence M. Friedman, Robert V. Percival

Faculty Scholarship

No abstract provided.

The Motion In Limine In Politically Sensitive Cases: Silencing The Defendant At Trial, Douglas L. Colbert

Faculty Scholarship

No abstract provided.

Litigation Trends In Florida: Saga Of A Growth State, Donald G. Gifford, David J. Nye

Faculty Scholarship

No abstract provided.

Qualitative Standards For Qualified Securities: Sec Regulation Of Voting Rights, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Qualitative Standards For 'Qualified Securities': Sec Regulation Of Voting Rights, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Getting To Market: The Scientific And Legal Climate For Developing An Aids Vaccine, Wendy K. Mariner, Robert C. Gallo

Faculty Scholarship

Expectations of a vaccine to prevent acquired immunodeficiency syndrome (AIDS) are rising. Not only are the prospects for an effective immunogen improving, but immunization appears to hold the greatest promise for halting the spread of infection and disease.' Identification of the causal agent-the retrovirus called HTLV-III, LAV, or generically, HIV (human immunodeficiency virus)-has provided the direction and limited the options for containing the disease.

Prevention is, of course, critical where the disease must be presumed to be fatal in all cases. Although there is no clear evidence that any single exposure to HIV will result in infection or disease, prudence …

Surrogate Parenthood, George J. Annas, John Robertson

Faculty Scholarship

Does a surrogate mother have the right to change her mind? Not according to the Baby M court, which enforced a $10,000 contract between Mary Beth Whitehead and William and Elizabeth Stern that it found was "in the best interests of the child." The decision is now on appeal before the New Jersey Supreme Court.

The case has produced sharply divided reaction-some denounce surrogate arrangements as Orwellian while others see them as a boon to childless couples.

George Annas, a professor of health law at Boston University's School of Public Health, would void these contracts on policy grounds. He believes …

Is Firpta (Partially) Obsolete?, Alan L. Feld

Faculty Scholarship

The Treasury's recent list of Subchapter C issues for study contained a long section on foreign matters. Although the section twice mentioned FIRPTA, it did not treat FIRPTA itself as a subject for reevaluation in the light of the 1986 Act. It should have. Repeal of the General Utilities principle rendered the corporate provisions of FIRPTA largely obsolete. The continuing effects of the FIRPTA rules should be considered against the background of the new corporate tax rules.

The Independent Corporate Board: A Means To What End?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Substance, Process And Outcome In Constitutional Theory, David B. Lyons

Faculty Scholarship

Scholarship in philosophy proceeds at a slower pace than in the law. As Tom Lehrer, the poet laureate of a recent generation, might have said, the law biz travels on a faster track. Or so it seems to a philosopher who has recently been treading the tracks of constitutional lawyers.

And so it is with apprehension that I take as my text a book that was published as long ago as 1980. As the title of this lecture might suggest to someone with so long a memory, the book is John Hart Ely's Democracy and Distrust.' That work provoked an …

Excitation Of The Isobaric Analog State Of ¹⁶⁵Ho By Pion Single-Charge Exchange, William J. Fickinger

Faculty Scholarship

Forward-angle differential cross sections for the 165Ho(π+,π0)165Er(IAS) reaction have been measured at Tπ=98.0, 163.2, and 228.3 MeV in the angular range & ≲14°. The shapes of the angular distributions at 98.0 and 163.2 MeV are compared to predictions arising from the strong absorption model of pion single-charge exchange scattering. Extrapolated 0° cross sections are compared with trends previously established with mostly spherical and near-spherical nuclei. The measurement demonstrates the possibility of using the (π+,π0) reaction for studying neutron density deformations in oriented 165Ho.

Conflict Of Law (1987), James Paul George, Fred C. Pedersen

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 are all foreign elements that may create problems in judicial jurisdiction, choice of law, or the recognition of foreign judgments. This Article reviews Texas conflict of laws during the Survey period from late 1985 through 1986. The Survey includes cases from Texas state and federal courts, and non-Texas cases affecting Texas practice. Excluded are cases involving federal/state conflicts, criminal law, intrastate matters such as subject matter jurisdiction and venue, and conflicts in time, such as …