Digital Commons Network^™

Punishment, Kent Greenawalt

Faculty Scholarship

Although punishment has been a crucial feature of every legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for punishment in particular cases. A third relates to the degree of severity that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices.

The main part of this theoretical overview of the subject of …

The 1982 Minimum Tax Amendments As A First Step In The Transition To A "Flat-Rate" Tax, Michael J. Graetz

Faculty Scholarship

The massive body of tax legislation enacted in the first two years of the Reagan Administration offers little guidance for predicting the future direction of United States tax policy. Dramatically different Congressional coalitions – each led by the President – passed by very narrow margins the nation's largest tax reduction (the Economic Recovery Tax Act of 1981) and then the next year enacted the largest peacetime tax increase (the Tax Equity and Fiscal Responsibility Act of 1982). In each case, short-term political and fiscal concerns dominated the debates. The 1981 legislation reduced taxes in an effort to stimulate economic activity …

Nearshore And Shelf-Edge Oculina Coral Reefs: The Effects Of Upwelling On Coral Growth And On The Associated Faunal Communities., John K. Reed

Faculty Scholarship

Colonies of Oculina varicosa were collected from nearshore, mid-shelf, and shelf-edge reefs off central eastern Florida. The shelf-edge reefs are inundated episodically throughout the year by upwelling of cool, nutrient rich water. On the inner shelf, cyclic seasonal factors predominate and upwelling intrudes only for a few weeks during the summer. Growth rates of the coral are significantly greater on the shelf-edge reefs than nearshore, even though at the shelf-edge temperatures are cooler and the coral lacks zooxanthellae. Species diversities of assemblages of decapods and mollusks associated with the coral are greater at the shelf-edge reef than at the mid- …

The Binding Force Of International Arbitral Awards, William W. Park, Jan Paulsson

Faculty Scholarship

A party that submits a controversy to arbitration may later regret having abandoned recourse to the courts. Once the award is rendered, the chosen arbitrator may no longer seem so wise to the losing party, who may refuse to comply with his decision. A legal system must therefore legitimize the arbitrator's authority if the award is to be more than an unenforceable attempt at conciliation.

The Lex Loci Arbitri And International Commercial Arbitration, William W. Park

Faculty Scholarship

Luke's gospel reports that Jesus once declined to arbitrate a family dispute over an inheritance by asking a disgruntled sibling, "Who set me over you to arbitrate?" Private resolution of business disputes raises a related question: whence springs the arbitrator's authority to render a binding award? A company that submits a controversy to arbitration may later regret having abandoned recourse to the courts. On the day of reckoning, the sage chosen to decide the dispute may no longer seem so wise to the losing party, and the loser might consider refusing to comply with the arbitrator's decision. Some legal system, …

Predestination And Swiss Arbitration Law: Geneva's Application Of The International Concordat, Philippe Neyroud, William W. Park

Faculty Scholarship

Historically, Geneva has proved an attractive site for international commercial arbitration. Today, however, Geneva's arbitral popularity is threatened by the interventionist practices of Switzerland's cantonal courts, which have liberally interpreted their powers to review and overturn arbitral awards. In an effort to prevent a decline in Switzerland's popularity as an arbitral center, Swiss jurists have recently proposed rules providing for greater arbitral autonomy in the private resolution of international business disputes. The authors analyze Swiss judicial intervention in the arbitral process, the problems inherent in such intervention, and a proposed solution to those problems.

The Reagan Administration's Habeas Corpus Proposals, Larry Yackle

Faculty Scholarship

"Democracy," said Churchill, "means that if the door bell rings in the early hours, it is likely to be the milkman." He might have added that if the caller is not the milkman, but a police officer, Anglo-American democracy contemplates that the writ of habeas corpus will be available to the citizen awakened and dragged off into the darkness. The Great Writ has no substantive content of its own but provides the machinery for putting claims before state and federal courts-for translating substantive principles of liberty into effective law. The writ is process, but more than process. It is the …

The Exhaustion Doctrine In Federal Habeas Corpus: An Argument For A Return To First Principles, Larry Yackle

Faculty Scholarship

The exhaustion doctrine in federal habeas corpus contemplates not the relinquishment of federal jurisdiction to determine the merits of federal claims arising in state criminal prosecutions, but the appropriate timing of an undoubted federal power to adjudicate in due course. Simply stated, the doctrine postpones federal review until petitioners have exhausted state judicial remedies still available for the treatment of their federal claims at the time they wish to apply for federal relief. The resulting delay is justified on the twin grounds that earlier federal intervention would disrupt the orderly administration of state criminal prosecutions and deprive the state courts …

Fairness In Rate Cuts In The Individual Income Tax, Alan L. Feld

Faculty Scholarship

The Economic Recovery Tax Act of 1981 (the 1981 Act) made significant changes in federal income, estate, and gift taxation, touching virtually every taxpayer.¹ The centerpiece of the 1981 Act consisted of rate reductions in the individual income tax.² These reductions, said to average 23%, served a number of different but related objectives. First, those in favor of the tax cuts posited that all taxpayers would benefit from equitable, across-the-board reductions in an excessive and growing tax burden.³ Related to this objective was an anticipated reduction in the size of the federal government, because less tax money …

In Vitro Fertilization And Embryo Transfer: Medicolegal Aspects Of A New Technique To Create A Family, George J. Annas, Sherman Elias

Faculty Scholarship

IVF and ET conjure up a variety of images, from "test tube babies" to Steven Spielberg's extraterrestrial. Indeed, it is sometimes difficult to separate science fiction from scientific reality. Nonetheless, the extracorporeal fertilization of a human egg followed by transfer to a human uterus and birth of a child, has been repeated in a number of countries around the world. In vitro fertilization (IVF) and embryo transfer (ET) are now reality.' Most of us applauded this new technology along with the parents of the resulting children. These infertile couples were able, with the help of IVF, to have their own …

The Right To Refuse Treatment: A Model Act, George J. Annas

Faculty Scholarship

Although the right to refuse medical treatment is universally recognized as a fundamental principle of liberty, this right is not always honored. A refusal can be thwarted either because a patient is unable to competently communicate or because providers insist on continuing treatment. To help enhance the patient's right to refuse treatment, many states have enacted so-called "living will" or "natural death" statutes. We believe the time has come to move beyond these current legislative models, and we therefore propose a Model Act that clearly enunciates an individual's right to refuse treatment, does not limit its exercise to the terminally …

Review Of The Law And Process Of Post-Conviction Remedies By Ira P. Robbins, Larry Yackle

Faculty Scholarship

There are days when the availability of the federal writ of habeas corpus as a vehicle for challenging criminal convictions collaterally seems assured. The arrival of Professor Robbins' new casebook is itself strong, affirmative evidence. At last a major publishing house has acknowledged that the great body of habeas corpus statutes, rules, and precedents warrants a full-length, hard-bound casebook for classroom use. Implicitly, surely, the publisher assumes that the postconviction writ is here to stay, that it forms a stable and legitimate part of our jurisprudence. 3 At the same time, some members of the Court, particularly Chief Justice Burger …

Developments In Banking Law 1982, Dennis S. Aronowitz, Robert Volk

Faculty Scholarship

In 1982, the nation's depository institutions continued to cope with a difficult economic environment. Although the high interest rates of the early part of the year began a slow decline in the fall, commercial banks and thrift institutions continued to face stiff competition from alternative investment instruments for the depositor's dollar. Savings banks and savings and loan associations continued to have trouble remaining solvent in a difficult time. In 1982 both the Federal Deposit Insurance Corporation (FDIC) and the Federal Home Loan Bank Board (FHLBB) arranged a record number of mergers and acquisitions involving failing institutions.

Leveling The Road From Borg-Warner To First National Maintenance: The Scope Of Mandatory Bargaining, Michael C. Harper

Faculty Scholarship

The Supreme Court's most recent effort to distinguish nonmandatory bargaining topics, First National Maintenance Corp. v. NLRB, ¹⁹ illustrates the Court's lack of clarity in this area and vindicates Cox's and Wellington's criticisms of the Court's approach in Borg-Warner. In First National Maintenance (F.N.M.), the Court held that an employer's decision "to shut down part of its business purely for economic reasons" was outside the scope of mandatory bargaining.²⁰ The Court could cite no evidence that Congress intended to prevent employee representatives from obtaining full effective bargaining over such decisions, nor did it articulate any general principle to …

The Law School Library: Its Function, Structure, And Management, Robert J. Desiderio

Faculty Scholarship

The law library has a special and unique importance because of the nature of our legal system and its role as a laboratory for anyone involved in a legal proceeding. Students, faculty, lawyers, judges, and lay persons cannot accomplish legal work without the library. Law libraries, in the process of transition, are planning or implementing computer-based retrieval systems and video devices for training and instruction. Law librarians have significant responsibilities for accurate information retrieval and teaching legal research techniques.

Employer Withdrawal From Multiemployer Bargaining--Charles D. Bonanno Linen Service V. Nlrb, Franklin G. Snyder

Faculty Scholarship

Large numbers of employers in this country, particularly small businesses, are members of multiemployer bargaining units. Historically, employers and unions have been able to withdraw from those units when the bargaining process has reached a stalemate. A recent decision of the United States Supreme Court, however, has made it more difficult for employers to withdraw from multiemployer units even in the face of a prolonged bargaining impasse. The decision, which settles a long-standing dispute between the National Labor Relations Board (Board) and several circuit courts of appeals, is a boon to labor unions, for it prohibits employer withdrawal in the …

The Exercise Of Executive Discretion: A Study Of A Regional Office Of The Department Of Labor, Michael C. Harper

Faculty Scholarship

Writing for a recent symposium on empirical research in administrative law, Professor Paul Verkuil noted that such research "casts light on one of the dark corners of the law. The vast majority of administrative decisions are of the informal variety, meaning they take place outside the reach of generic administrative procedure acts and frequently outside the courts themselves."' We are only beginning to appreciate how vast is this dark corner and how varied the possible modes of illumination.

This essay casts some additional light into the corner by reporting on a study of the exercise of executive discretion by a …

Article 9 Security Interests As Voidable Preferences,Part Ii: The Floating Lien, Irving A. Breitowitz

Faculty Scholarship

No abstract provided.

National Product Liability Legislation: In Search For The Best Of All Possible Worlds, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Revolution In Family Law: 45 Landmark Decisions: Four Experts Look At The Most Significant Cases Handed Down During The Last Two Decades, Randall M. Chastain, Monroe L. Inker, Sanford N. Katz, Frances H. Miller, Walter Weyrauch

Faculty Scholarship

No abstract provided.

Seizing The Middle Ground Between Rules And Standards In Design Defect Litigation: Advancing Directed Verdict Practice In The Law Of Tort, Aaron Twerski

Faculty Scholarship

No abstract provided.

Bargaining In The Shadow Of The Law: A Testable Model Of Strategic Behavior, Robert Cooter, Stephen G. Marks, Robert Mnookin

Faculty Scholarship

Part I describes the framework of the model. Part II discusses the domination of psychological effects by tangible variables, which is the basis for comparative statics. Part III explains the table of predictions, and Part IV applies the predictions to externalities and rules for real-locating payoffs from trial. There is little mathematics in the text. The mathematical reader can refer to the Appendix for a brief presentation of our model, or to a companion paper on file with this Journal which develops the mathematics at length.

Pretrial Procedure Under The Massachusetts Rules Of Criminal Procedure, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The Massachusetts Rules of Criminal Procedure became effective on July 1, 1979. While many of their provisions helpfully codify previously existing practice and case law, the Rules have in some areas effected a major transformation of criminal procedure. This article examines the changes wrought by the Rules in the pretrial arena, with emphasis on those areas that remain somewhat unfamiliar to the practitioner or untested against constitutional challenge in the courts. While the Rules appear to have done an admirable job of simplifying and rationalizing the criminal trial process, their emphasis on mutuality and reciprocity have in some cases created …

Article 9 Security Interests As Voidable Preferences, Irving A. Breitowitz

Faculty Scholarship

No abstract provided.

State Court Power To Enjoin Federal Judicial Proceedings: Donovan V. City Of Dallas Revisited, Alan D. Hornstein, P. Michael Nagle

Faculty Scholarship

No abstract provided.

"Value" Judgments: Accounts Receivable Financing And Voidable Preference Under The New Bankruptcy Code, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Nonjudicial Foreclosure Under Deed Of Trust May Be A Fraudulent Transfer Of Bankrupt's Property: Durrett V. Washington National Insurance Co., Franklin G. Snyder

Faculty Scholarship

In theory, the substantive rights of secured creditors such as mortgagees are affected much less by bankruptcy proceedings than those of unsecured creditors. In practice, however, bankruptcy proceedings have affected mortgagees. Filing a bankruptcy petition automatically stays pending foreclosures. Trustees in bankruptcy also can set aside foreclosures of certain liens obtained by unsecured creditors and certain mortgages and deeds of trust executed in the year preceding bankruptcy. The decision in Durrett adds yet another weapon to the bankruptcy trustee's arsenal: the power to void nonjudicial foreclosure sales even though the sale is proper and final under state law.

The Tax Benefit Of Bliss, Alan L. Feld

Faculty Scholarship

In recent years the Supreme Court has limited its substantive decisions in federal income tax matters.^I For the most part, the handful of tax cases it has considered each year deal with collection, liens, or other issues peripheral to doctrinal development in the tax area.² The Court's recent decision in Diedrich v. Commissioner,³ however, dealt with a realization question involving net gifts; and its grant of certiorari consolidating the cases of Bliss Dairy, Inc. v. United States and Hillsboro National Bank v. Commissioner⁴ promises a continuing interest in substantive tax law. Bliss Dairy will enable the …

A Critique Of John Hart Ely's Quest For The Ultimate Constitutional Interpretivism Of Representative Democracy, James E. Fleming

Faculty Scholarship

Contemporary constitutional theory, John Hart Ely argues in Democracy and Distrust, is dominated by a false dichotomy between "clause-bound interpretivism" and "noninterpretivism." Clausebound interpretivists, such as the late Justice Hugo Black, believe that "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution" (p. 1). Noninterpretivists, such as the Supreme Court that produced the majority opinion in Roe v. Wade,2 contend that "courts should go beyond that set of references and enforce [substantive] norms that cannot be discovered within the four comers of the document" (p. 1). The genius of …

The Free Speech Metamorphosis Of Mr. Justice Holmes, David S. Bogen

Faculty Scholarship

No abstract provided.