Digital Commons Network^™

Congressional Papers And Judicial Subpoenas And The Constitution, David H. Kaye

Faculty Scholarship

Some contemporary Congresses have lost sight of the original scope of their predecessors' assertions of privilege and now claim an absolute privilege to withhold both the originals and copies of subpoenaed papers. A few judicial opinions suggest as much or more. It is possible that even cursorily documented, ill-considered dicta can take root and flourish, and to prevent that, this article This article charts the constitutional boundaries of Congress' privilege to withhold its internal papers from judicial subpoena. It surveys the privileges expressly given Congress in the text of the Constitution as well as the privileges that might be implied …

Freedom Of The Press And Public Access: Toward A Theory Of Partial Regulation Of The Mass Media, Lee C. Bollinger

Faculty Scholarship

During the past half century there have existed in this country two opposing constitutional traditions regarding the press. On the one hand, the Supreme Court has accorded the print media virtually complete constitutional protection from attempts by government to impose affirmative controls such as access regulation. On the other hand, the Court has held affirmative regulation of the broadcast media to be constitutionally permissible, and has even suggested that it may be constitutionally compelled. In interpreting the first amendment, the Court in one context has insisted on the historical right of the editor to be free from government scrutiny, but …

Uniformity In State Inheritance Laws: How Upc Article Ii Has Fared In Nine Enactments, Richard V. Wellman, James W. Gordon

Faculty Scholarship

The Uniform Probate Code was drafted to facilitate modernization, simplification, and uniformity of state inheritance laws. Since its approval by the National Conference of Commissioners on Uniform State Laws and by the American Bar Association in August 1969, the Code has been enacted in various forms by 11 states. In this Article, the Authors analyze significant deviations from the recommended version of article II in the first nine enactments of the UPC. The Authors argue that all but exceptionally meritorious changes in enacted versions of the UPC should give way to the goal of state uniformity in inheritance laws, and …

Criminal Law And Procedure, David Rossman

Faculty Scholarship

The Constitutionality of the Trial de Novo System. The legal challenge to the constitutionality of the Massachusetts trial de novo system was settled by the Supreme Court of the United States during the Survey year in Ludwig v. Massachusetts. The Court upheld the Commonwealth's practice of trial de novo finding that the system does not constitute an impermissible burden upon a defendant's right to a trial by jury and that the requirement that a defendant undergo two trials in order to obtain a jury trial is not a violation of the right against double jeopardy.

Variable Life Insurance, Tamar Frankel

Faculty Scholarship

No abstract provided.

First Amendment Protection For Commercial Advertising: The New Constitutional Doctrine, Thomas W. Merrill

Faculty Scholarship

Governmental regulation of commercial advertising has become a major focus of challenges to established first amendment doctrine. An increasing number of suits have raised constitutional objections to regulations of false or deceptive advertising, regulations of offensive advertising, prohibitions of commercial advertising in certain forums, prohibitions of price advertising for particular products or services, and prohibitions of all advertising for particular products or services.' Until recently, the majority of courts upheld such regulations under the Supreme Court's ruling in Valentine v. Chrestensen that "purely commercial advertising" is unprotected by the first amendment.

In the last two years the Court has subjected …

Search And Seizure Of The Media: A Statutory, Fourth Amendment And First Amendment Analysis, James S. Liebman

Faculty Scholarship

On the evening of October 10, 1974, police appeared at radio station KPFK-FM in Los Angeles with a warrant authorizing them to search the premises for a New World Liberation Front (NWLF) "communique" that took credit for a recent bombing. The officers conducted an intensive 8-hour search-combing files, listening to tapes, and looking through reporters' notes – finally concluding that the NWLF letter was not at the station. The KPFK search warrant was one of six that California law enforcement officials have executed at press offices since 1972. The circumstances surrounding the incident illustrate the rationale behind the recent development …

The Metamorphosis Of Larceny, George P. Fletcher

Faculty Scholarship

To the modern lawyer, the rules of common law theft offenses do not seem ordered by any coherent principle. In this Article, however, Professor Fletcher shows that the common law of larceny can be understood in terms of two structural principles, possessorial immunity and manifest criminality. In the eighteenth and nineteenth centuries, as the modern style of legal thought evolved, first commentators and then courts lost their ability to understand these principles and came to rely on intent as the central element of criminal liability. As a result of this transformation, Professor Fletcher argues, the range of circumstances that can …

International Trade And Finance, Jagdish N. Bhagwati

Faculty Scholarship

Professor Tinbergen must hold a record in the number of Festschriften that have been written for him. His students and colleagues have reprinted his essays, as an interesting variation on the usual form of felicitation; and a volume of essays was presented by Bos in 1969. Now, Willy Sellekaerts has produced three volumes towards the same end! In a world of increasing output and diminishing time to read it, it is doubtful whether this Wicksellian phenomenon of exploding Festschriften for a single scientist should be applauded, regarded with amusement, or deplored! Does not the law of diminishing marginal utility apply …

The Definition Of Disability In Social Security And Supplemental Security Income: Drawing The Bounds Of Social Welfare Estates, Lance Liebman

Faculty Scholarship

Federal aid to the disabled is a vast enterprise; over nine billion dollars are annually paid to five million beneficiaries. In this Article, Professor Liebman points out how the ad hoc nature of social welfare legislation and programming has resulted in a system that produces inconsistent and sometimes inequitable determinations of disability. The present system, he argues, draws significant economic and social distinctions among the disabled, as well as distinctions between the disabled and the unemployed, that have been inadequately explained and justified. By focusing on worker expectations generated by the administration of our disability programs, and on the structural …

A Better Prepared Bar – The Wrong Approach, Michael I. Sovern

Faculty Scholarship

It is a pleasure for me to add my voice to this Symposium in pursuit of our shared goal of a better prepared bar. My Brother Clare and his estimable colleagues have labored most conscientiously to produce a proposal that they believe will bring us significantly closer to that goal. I respectfully disagree.

My disagreement does not, however, imply endorsement of all of the criticisms attracted by the report of the Advisory Committee on Qualifications to Practice Before the United States Courts in the Second Circuit (Clare Committee or Committee). To begin with, I do not at all quarrel with …

Regulation Of Electroconvulsive Therapy, Carol Sanger

Faculty Scholarship

Electroconvulsive therapy (ECT) is a psychiatric procedure that induces a convulsive seizure in the patient in order to treat severe depression. Recently, courts, legislatures, and the medical profession have paid increasing attention to the regulation of ECT. Their interest has been stimulated by the growing recognition of the rights of mental patients, the developing role of consent in medical transactions, and the results of recent scientific research on the efficacy and consequences of ECT.

Regulation of ECT has generally focused on whether the patient or his representative effectively consented to the treatment. The highly intrusive nature of ECT and the …

Class Actions, Richard Briffault

Faculty Scholarship

In 1966, the Supreme Court promulgated an amended rule 23 of the Federal Rules of Civil Procedure, replacing a rule that had remained unchanged since 1938. The 1938 rule, which was understood to reflect Professor Moore's famous distinctions among "true," "hybrid," and "spurious" class suits, proved to be a source of confusion almost from its date of promulgation, and by i966 courts were having great difficulty applying the concepts of joint and several rights the rule relied upon to define cases appropriate for class treatment. Commentators ignored the terms of the rule and sought justification for conclusive adjudication of absentee …

Juris: Legal Information In The Department Of Justice, James E. Hambleton

Faculty Scholarship

JURIS is the computerized legal information system being developed by the Department of Justice for use by its attorneys. The system has been devised not only to help in statutory and case law research, but to provide access to memoranda, briefs, and other work products generated in daily departmental activity. From modest beginnings, JURIS has grown in use and in data-base capabilities. JURIS search strategy, which involves building up sets of data into a search "tree" has proven to be effective for its users. After a year-long evaluation project was completed in May 1975, the results indicated enough user acceptance …

Ethical Relativism And The Problem Of Incoherence, David B. Lyons

Faculty Scholarship

Ethical relativism flirts with incoherence by suggesting that incompatible judgments can both be true. This paper shows that some relativistic theories avoid incoherence while others do not. Some theories ground moral judgments on principles ascribed to social groups while others ground moral judgments on principles ascribed to individuals. Some theories regard the relevant principles as applicable to an individual’s own action (agent relativism) while others regard the relevant principles as applicable to the individual’s moral judgments (appraiser relativism). Some theories regard moral judgments as possessing truth values while others regard moral judgments as lacking truth values. Relativistic theories suffer from …

Disposing Of A Pre-Existing H.R. 10 Plan In Connection With A Post-Erisa Business Incorporation, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

A Quarter-Century Of Transition In The New York Law Of Trusts And Estates, Bertel M. Sparks

Faculty Scholarship

No abstract provided.

The Multiemployer Concept In The Public Sector, Louis B. Kimmelman

Faculty Scholarship

No abstract provided.

Attorney's Responsibilities: Adversaries At The Bar Of The Sec, Roberta S. Karmel, Joseph C. Daley

Faculty Scholarship

No abstract provided.

Recent Developments In The Law Of Equal Educational Opportunity, Betsy Levin

Faculty Scholarship

No abstract provided.

The Extraterritorial Application Of The Federal Securities Code, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Constitutional Perspectives On Sex Discrimination In Jury Selection, Elizabeth M. Schneider, Rhonda Copelon, Nancy Stearns

Faculty Scholarship

No abstract provided.

Environmental Decision-Making And The Siting Of Facilities, Michael S. Baram

Faculty Scholarship

One of the more urgent problems of environmental law concerns the siting of industrial and other major constructed facilities required to meet societal needs. Although the siting problem may be diminished as a result of the use of energy conservation measures and other techniques affecting the need for certain facilities, the problem will remain a significant one for environmental decision-making.

When You Enter The Hospital Check Your Rights At The Door, George J. Annas

Faculty Scholarship

Civil libertarians have little difficulty appreciating the plight of prisoners or mental patients. But tell the average civil libertarian that there are significant and unnecessary restrictions on the individual rights and liberties of patients in general hospitals, and you are likely to encounter a blank stare. There are a number of reasons for this lack of attention to hospitals. One is the general misconception that the problems are minor, or that certain temporary restrictions on individuals are essential if hospitals are to treat sick people properly. An unconscious desire not to perceive ourselves as being at risk may be another …

On Justifying Enforced Requirements: A Reply To Baier, David B. Lyons

Faculty Scholarship

There are limits to the possible subjects of justification. Typically, it concerns human behavior and things that human intervention can affect. Failing special circumstances, it makes no sense to speak of justifying the weather. There may be other limits to the class of possible subjects for justification; for example, it is sometimes said that a thing cannot be justified unless it has been indicted, though it is not clear how this claim should be taken. For there simply may be no point in bothering to justify something that is not suspect in some way, and the relevant condition can generally …

The Mirror And The Porthole, William C. Spencer

Faculty Scholarship

No abstract provided.

Fairness And A Consumption-Type Or Cash Flow Personal Income Tax, Alvin C. Warren Jr.

Faculty Scholarship

No abstract provided.

Lewis M. Simes As Teacher, Bertel M. Sparks

Faculty Scholarship

No abstract provided.

The Taney Period, 1836-64, David S. Bogen

Faculty Scholarship

No abstract provided.

The Positional-Risk Doctrine In Workmen’S Compensation, Arthur Larson

Faculty Scholarship

No abstract provided.