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The Ideology Of Advocacy: Procedural Justice And Professional Ethics, William H. Simon Jan 1978

The Ideology Of Advocacy: Procedural Justice And Professional Ethics, William H. Simon

Faculty Scholarship

Conventional morality frowns at the ethics of advocacy. Public opinion disapproves of what it considers the lawyer's most characteristic activities. Popular culture can reconcile itself to him only by pretending that all his clients are virtuous. The lawyer's response takes the form of a dialectic of cynicism and naiveté. On one hand, he sees his more degrading activities as licensed by a fundamental amorality lying beneath conventional morality. On the other hand, he sees his more heartening ones as serving an institutional justice higher than conventional morality. The two moods divide the profession as a whole, and the division can …

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Post-Discharge Coercion Of Bankrupts By Private Creditors, Rachel Vorspan Jan 1978

Post-Discharge Coercion Of Bankrupts By Private Creditors, Rachel Vorspan

Faculty Scholarship

No abstract provided.

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Inherent Judicial Power: Flexibility Congress Did Not Write Into The Federal Rules Of Evidence , Michael M. Martin Jan 1978

Inherent Judicial Power: Flexibility Congress Did Not Write Into The Federal Rules Of Evidence , Michael M. Martin

Faculty Scholarship

This Article focuses on the question whether, or to what extent, a federal court is bound by the explicit and implicit restrictions placed by Congress on a court's power to admit evidence. This is a question that did not arise prior to adoption of the Federal Rules of Evidence because previous prospective rulemaking in the procedural area was in truth a judicial exercise. Although Congress had an implicit veto power over rules of procedure prescribed by the Supreme Court, it never exercised that power. Thus, a lower court's decision to disregard a rule of procedure raised, as a practical matter, …

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Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen F. Ross Jan 1978

Bordenkircher V. Hayes: Ignoring Prosecutorial Abuses In Plea Bargaining, Stephen F. Ross

Faculty Scholarship

In Bordenkircher v. Hayes, the United States Supreme Court upheld a conviction on a charge the prosecutor admittedly filed solely because the defendant refused to plead guilty to another set of charges. Hayes is a sudden departure from a line of cases in which the Court refused to allow prosecutorial charging decisions to be made to discourage a criminal defendant from exercising constitutional or procedural rights. The decision effectively removes plea bargaining from its constitutional premise: the "mutuality of advantage" between the prosecutor and the defendant. Rather than approving the broad exercise of prosecutorial discretion in plea negotiations, the …

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A Critique Of The Uniform Product Liability Law -- A Rush To Judgment, Aaron Twerski, A. S. Weinstein Jan 1978

A Critique Of The Uniform Product Liability Law -- A Rush To Judgment, Aaron Twerski, A. S. Weinstein

Faculty Scholarship

No abstract provided.

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The Enduring Significance Of Neutral Principles, Kent Greenawalt Jan 1978

The Enduring Significance Of Neutral Principles, Kent Greenawalt

Faculty Scholarship

Almost twenty years have passed since Herbert Wechsler delivered his Oliver Wendell Holmes lecture, Toward Neutral Principles of Constitutional Law. Although no one piece fully conveys the richness and rigor of Professor Wechsler's conception of constitutional law and the role of the judiciary, Neutral Principles sets out starkly, eloquently, and courageously some of his fundamental beliefs about constitutional decisionmaking. Shifts in jurisprudential fashion, as well as marked changes in constitutional doctrine and the composition of the Supreme Court, would make this an apt time to review what is almost certainly the most cited and most controversial discussion of constitutional …

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Judicial Overload: The Reasons And The Remedies , Maria Marcus Jan 1978

Judicial Overload: The Reasons And The Remedies , Maria Marcus

Faculty Scholarship

Animosity towards lawyers, perennial in our social history long before Watergate, parallels a contradictory and equally persistent belief in judges as problem-solvers for a variety of personal, economic, educational and political ills. An increasing number of litigants are bringing to the courts not only the class of disputes that has been the traditional fare of judicial decision-making, but also an array of issues that were formerly resolved in private meetings, at hospitals, in schools, or at home. The causes of this explosion of lawsuits and the possible buffers to an eventual implosion in our judicial system will be discussed below

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The Supreme Court As A Legislature, Geoffrey C. Hazard Jr. Jan 1978

The Supreme Court As A Legislature, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

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More On Regulation: A Reply To Stephen Weiner, Clark C. Havighurst Jan 1978

More On Regulation: A Reply To Stephen Weiner, Clark C. Havighurst

Faculty Scholarship

In Volume 3, Number 3 of this journal, Professor Havighurst* wrote a brief Comment in which he observed that the function of health care cost-containment regulation is the rationing of health care resources, and argued that the fostering of health care consumers' and providers' free choice in the competitive marketplace is preferable to conventional cost-containment regulation as a mechanism for such rationing. He briefly outlined various reforms, including changes in federal tax treatment of health insurance premiums, aimed at implementing his ap- proach. Subsequently, in a Comment in Volume 4, Number 1, Stephen M.Weiner, then Chairman of the Massachusetts Rate …

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The University Law School And Legal Services, Paul D. Carrington Jan 1978

The University Law School And Legal Services, Paul D. Carrington

Faculty Scholarship

No abstract provided.

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Antitrust Issues In The Regulation Of College Sports, John C. Weistart Jan 1978

Antitrust Issues In The Regulation Of College Sports, John C. Weistart

Faculty Scholarship

No abstract provided.

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International Products Liability Litigation: Choosing The Applicable Law, William W. Park Jan 1978

International Products Liability Litigation: Choosing The Applicable Law, William W. Park

Faculty Scholarship

Growth in transnational commerce and travel has substantially increased the cases in which injury-causing products have significant contacts with more than one state. A defective automobile is manufactured in Italy, by an Italian company, and exported to France; it is purchased by a French student who drives it to Oxford, where a defect in the steering causes an accident and injury. Or, an Englishman on a business trip to Italy buys a box of Swiss chocolate, eats the candy during a stopover in Paris, and falls ill on arrival back in London; as a result of the illness, he is …

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The Burger Court And The Fourth Amendment, Larry Yackle Jan 1978

The Burger Court And The Fourth Amendment, Larry Yackle

Faculty Scholarship

In his 1974 Holmes Lectures, Anthony Amsterdam likened the Supreme Court in search and seizure cases to a committee "attempting to draft a horse by placing very short lines on a very large drawing board at irregular intervals during which the membership of the committee constantly changes." On that perception of the matter he cautioned against precipitous criticism when the completed draft resembles a camel. That advice, in my judgment, is reliable only in part. On the one hand, only the most arrogant of armchair critics would not concede that the Court's work is as difficult as it is important. …

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Survey Of Cases Decided By The Fifth Circuit Court Of Appeals: Introduction, Frank W. Elliott Jan 1978

Survey Of Cases Decided By The Fifth Circuit Court Of Appeals: Introduction, Frank W. Elliott

Faculty Scholarship

This symposium includes scholarly analyses of fresh, important cases decided by the Fifth Circuit during the past year. It also includes a scholarly analysis of problems and possible solutions for the Circuit's overcrowded conditions. We can only hope that it will not only contribute to the better functioning of its readers as lawyers, but also to a better solution of the problems of judicial administration within the Circuit.

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Shadow Prices For Project Selection In The Presence Of Distortions: Effective Rates Of Protection And Domestic Resource Costs, T.N. Srinivasan, Jagdish N. Bhagwati Jan 1978

Shadow Prices For Project Selection In The Presence Of Distortions: Effective Rates Of Protection And Domestic Resource Costs, T.N. Srinivasan, Jagdish N. Bhagwati

Faculty Scholarship

The paper addresses the problem of deriving shadow prices for use in project evaluation when the existing allocation is characterized by ad valorem trade distortions. The analysis is used to clarify and resolve the long-standing debate among effective-rate-of-protection and domestic resource-cost proponents as to the respective merits of their measures as methods of project evaluation. The derivation of shadow factor prices is then extended to three major factor market imperfections familiar from extensive trade-theoretic analysis.

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The Repressed Issues Of Sentencing: Accountability, Predictability, And Equality In The Era Of The Sentencing Commission, John C. Coffee Jr. Jan 1978

The Repressed Issues Of Sentencing: Accountability, Predictability, And Equality In The Era Of The Sentencing Commission, John C. Coffee Jr.

Faculty Scholarship

The existence of disparities in the sentences imposed on equally culpable offenders has long been a subject of jurisprudential concern. The author provides a critique of recent efforts to objectify the sentencing process that rely on a matrix table prescribing guideline sentence lengths on the basis of offense severity and predictions of recidivism. With particular emphasis on the Sentencing Commission authorized by pending federal legislation, he urges the need for political accountability in the body that inevitably makes value judgments in the preparation and administration of such a guideline system. Finally, the author discusses the normative issues that surround the …

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Principles, Positivism, And Legal Theory, David B. Lyons Dec 1977

Principles, Positivism, And Legal Theory, David B. Lyons

Faculty Scholarship

A complete theory of law, writes Ronald Dworkin, tells us what law is and what it ought to be. The current "ruling" theory of law combines legal positivism with utilitarianism: it holds, first, that law is a set of explicitly adopted rules and, second, that law ought to maximize the general welfare. Dworkin rejects both branches of that theory. He argues that law contains "principles" as well as rules and that these principles cannot be traced to any explicit adoption or enactment. Dworkin argues further that the ruling theory neglects moral rights, which must be respected, he claims, even if …

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The Rights Of The Employee As Patient, Frances H. Miller Dec 1977

The Rights Of The Employee As Patient, Frances H. Miller

Faculty Scholarship

No abstract provided.

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Current Issues And Developments In The Duties And Liabilities Of Underwriters And Securities Dealers -- A Program By The Committee On Federal Regulation Of Securities, Roberta S. Karmel Nov 1977

Current Issues And Developments In The Duties And Liabilities Of Underwriters And Securities Dealers -- A Program By The Committee On Federal Regulation Of Securities, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

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Has The 1976 Tax Reform Act Injected A Gain-Seeking Requirement Into Section 166?, J. Clifton Fleming Jr. Oct 1977

Has The 1976 Tax Reform Act Injected A Gain-Seeking Requirement Into Section 166?, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

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Scientific Research With Children: Legal Incapacity And Proxy Consent, Leonard H. Glantz, George J. Annas, Barbara Katz Oct 1977

Scientific Research With Children: Legal Incapacity And Proxy Consent, Leonard H. Glantz, George J. Annas, Barbara Katz

Faculty Scholarship

Before an investigator can use any person as a subject in biomedical or behavioral research, he must obtain that person's informed consent. This consent must be voluntary, competent, and understanding.1 There are two questions that arise in regard to experimentation on children. First, is a child legally capable of giving an informed and understanding consent? Second, do parents have the legal capacity to consent to the performance of research on their children? This article will attempt to answer both of these questions.

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Shaffer V. Heitner: A New Attitude Toward State Court Jurisdiction, Paul George Oct 1977

Shaffer V. Heitner: A New Attitude Toward State Court Jurisdiction, Paul George

Faculty Scholarship

Mr. Justice Frankfurter's observation is equally suited to the overruling of the century-old case, Pennoyer v. Neff, by the recent decision in Shaffer v. Heitner Shaffer ended not only Pennoyer's reign, but also a jurisdictional perspective which rested on the distinction between in personam and in rem jurisdiction and the concept of a state's sovereignty over property within its borders. The basis of the Pennoyer doctrine was the concept that a state had authority over all persons and property within its territory, and no authority whatsoever outside its territorial limits. Modifying previous theory slightly, Pennoyer became the …

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Federal Corporate Law, Federalism, And The Federal Courts, Gordon G. Young Jul 1977

Federal Corporate Law, Federalism, And The Federal Courts, Gordon G. Young

Faculty Scholarship

No abstract provided.

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The Disposition Process Under The Juveniles Justice Standards Project, Stanley Z. Fisher Jul 1977

The Disposition Process Under The Juveniles Justice Standards Project, Stanley Z. Fisher

Faculty Scholarship

The Juvenile Justice Standards Project volumes were publicly discussed for months prior to their publication. Unavoidably, much of the discussion was based upon rumor regarding their contents. In that context, critics charged that the proposed Standards would "destroy the nation's juvenile court system and replace it with a 'junior criminal system' "1 and claimed that the Standards substitute the philosophy of "just deserts" for the traditional rehabilitative goals of juvenile justice.' The news media described the Standards on disposition of delinquents as designed to "fit the penalty to the crime, no matter what the age of the perpetrator. '3 I …

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The Standards' Recommendations On Dispositions: A Panel Discussion, Stanley Z. Fisher, Howard A. Levine, Fred Cohen Jul 1977

The Standards' Recommendations On Dispositions: A Panel Discussion, Stanley Z. Fisher, Howard A. Levine, Fred Cohen

Faculty Scholarship

ROFESSOR STANLEY FISHER, MODERATOR: Good evening. I'd like to welcome you all here. Of all of the volumes of the Juvenile Justice Standards Project, I suppose the most controversial are those dealing with the disposition stage. They have elicited a good deal of critical comment, even though they haven't yet been published, and many of the comments and criticisms have apparently been on the basis of speculation and rumor as to what the Standards actually say. We have with us tonight to discuss these Standards two persons who have a great deal of expertise in this field. The first, on …

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World Jewry And The Ballot: The Defence Of Democracy At The World Zionist Federation And Its Potential Impact On Israel's Constitutional Law, Pnina Lahav Jul 1977

World Jewry And The Ballot: The Defence Of Democracy At The World Zionist Federation And Its Potential Impact On Israel's Constitutional Law, Pnina Lahav

Faculty Scholarship

This note highlights an important phase in the history of Zionism describing and analysing a recent decision by the W.Z.F. Tribunal which held categorically and unequivocally that the W.Z.F. is a democratic movement, and as such is bound to follow the most basic rules of democracythe maintenance of equal, popular elections. It then discusses the significance of the potential impact of this decision on Israeli constitutional law. The Tribunal's firm holding that the process of an implicit constitutional amendment is illegitimate and invalid, may signal a shift in the Israeli position which has, so far recognised this technique as valid. …

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Radiation From Nuclear Power Plants: The Need For Congressional Directives, Michael S. Baram Jun 1977

Radiation From Nuclear Power Plants: The Need For Congressional Directives, Michael S. Baram

Faculty Scholarship

Congress often responds to a complex problem by empowering an independent regulatory agency to enforce its legislative will. Acknowledging its own lack of knowledge and time, Congress gives the agency a measure of freedom to modify the legal requirements to fit a variety of circumstances that the legislature could not foresee. Ordinarily Congress restrains this autonomy by prescribing general criteria that the agency must consider and objectives that must be met.' These provisions enable Congress to measure the agency's progress and make necessary changes in the law. In addition, competition from other bureaus forces the agency to act vigorously or …

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The Fox In The Chicken Coop: The Regulatory Program Of The U.S. Army Corps Of Engineers, Garrett Power May 1977

The Fox In The Chicken Coop: The Regulatory Program Of The U.S. Army Corps Of Engineers, Garrett Power

Faculty Scholarship

No abstract provided.

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Javorek V. Larson: Insurer's Obligation To Defend And Indemnify Insufficient To Establish Jurisdiction--Seider Sours In California, James P. George Apr 1977

Javorek V. Larson: Insurer's Obligation To Defend And Indemnify Insufficient To Establish Jurisdiction--Seider Sours In California, James P. George

Faculty Scholarship

With its recent decision in Javorek v. Larson, the California Supreme Court has joined the growing number of states which have rejected the exercise of jurisdiction based upon the quasi in rem attachment of automobile liability insurance policies. This particular jurisdictional basis was first recognized in the New York case of Seider v. Roth, where the insurer's obligation to defend and indemnify the insured was found to be an attachable debt, yielding jurisdiction to the plaintiff's home state of New York, even though the defendant was a Canadian resident and the accident occurred in Vermont. The only …

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Surface Water Flooding In Urban Areas: Rights And Remedies Under The Common-Enemy Doctrine, James P. George Mar 1977

Surface Water Flooding In Urban Areas: Rights And Remedies Under The Common-Enemy Doctrine, James P. George

Faculty Scholarship

Urban flooding is an ever increasing problem as land development intensifies in expanding metropolitan areas. This situation not only has a significant impact on the physical environment, but has substantial legal consequences as well. In urban flooding situations, rivers and streams pose obvious flood threats, but the damaged area is generally restricted to a definable flood plain. Surface water presents a more subtle and pervasive problem; with heavy rainfall or poor drainage, surface runoff can submerge land not ordinarily considered subject to flood damage, further increasing riparian problems as the concentrated runoff finds its way to streams and rivers. Although …

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