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1992

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Articles 1 - 30 of 42

Full-Text Articles in Law

Reconceptualizing Sovereign Immunity, Harold J. Krent Nov 1992

Reconceptualizing Sovereign Immunity, Harold J. Krent

Vanderbilt Law Review

The United States generally is immune from suit without its con- sent. Accordingly, neither Congress nor the executive branch need pay damages' for any contract breached, any tort committed, or any constitutional right violated by the federal government. Although the doctrine of sovereign immunity persists, it persists subject to near unanimous condemnation from commentators. Many have rejected the underlying theory that the "King can do no wrong" as oddly out of place in our republican governments and many have noted as well that sovereign immunity was never applied as comprehensively in the past as it is today. Presently, there seems ...


Newsletter Vol.20 No.4 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions Nov 1992

Newsletter Vol.20 No.4 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions

National Center Newsletters

No abstract provided.


Consideration And Estoppel: Problem And Panacea, Bruce Macdougall Oct 1992

Consideration And Estoppel: Problem And Panacea, Bruce Macdougall

Dalhousie Law Journal

In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which ...


Newsletter Vol.20 No.3 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions Sep 1992

Newsletter Vol.20 No.3 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions

National Center Newsletters

No abstract provided.


Corporate Integration, Tax Treaties, And The Division Of The International Tax Base: Principles And Practices., Hugh J. Ault Jun 1992

Corporate Integration, Tax Treaties, And The Division Of The International Tax Base: Principles And Practices., Hugh J. Ault

Boston College Law School Faculty Papers

In this Article, Professor Ault begins with an examination of the evolution of treaty principles for the allocation of and restrictions on international taxing jurisdiction. He then focuses on how economically based principles dealing with the taxation of international income affect treaty policy and presents the basic structural provisions involving the taxation of foreign income and foreign investors that emerge from domestically enacted or proposed integration systems. The technical aspects of the actual treaty practices that have been implemented with respect to integration systems are then related to the theoretical discussion. Professor Ault concludes with an examination of the implications ...


Public Power And Private Obligation: An Analysis Of The Government Contract, Shannon Kathleen O'Byrne May 1992

Public Power And Private Obligation: An Analysis Of The Government Contract, Shannon Kathleen O'Byrne

Dalhousie Law Journal

This paper analyzes contracts made by the Government in terms of political theory. From this perspective, it explores the assumptions, utility, and accuracy of the private law model which historically has governed the Government's liability in contract. The paper's overarching objective is to question the propriety of applying private law principles to a public entity, particularly within the context of liberal democratic values to which both the Canadian State and society are pledged. In accord with McAuslan, it regards theoretical inquiry as significant. It asserts that if the current model of State liability collides with fundamental Canadian political ...


Noncompete Agreements Under Florida Law: A Retrospective And A Requiem, Kendall B. Coffey, Thomas F. Nealon, Iii Apr 1992

Noncompete Agreements Under Florida Law: A Retrospective And A Requiem, Kendall B. Coffey, Thomas F. Nealon, Iii

Florida State University Law Review

No abstract provided.


Newsletter Vol.20 No.2 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions Apr 1992

Newsletter Vol.20 No.2 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions

National Center Newsletters

No abstract provided.


That They May Thrive' Goal Of Child Custody: Reflections On The Apparent Erosion Of The Tender Years Presumption And The Emergence Of The Primary Caretaker Presumption, Sanford N. Katz Apr 1992

That They May Thrive' Goal Of Child Custody: Reflections On The Apparent Erosion Of The Tender Years Presumption And The Emergence Of The Primary Caretaker Presumption, Sanford N. Katz

Boston College Law School Faculty Papers

No abstract provided.


The Legacy Of Industrial Pluralism: The Tension Between Individual Employment Rights And The New Deal Collective Bargaining System, Katherine V.W. Stone Apr 1992

The Legacy Of Industrial Pluralism: The Tension Between Individual Employment Rights And The New Deal Collective Bargaining System, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.


From Libertarianism To Egalitarianism, Justin Schwartz Jan 1992

From Libertarianism To Egalitarianism, Justin Schwartz

Justin Schwartz

A standard natural rights argument for libertarianism is based on the labor theory of property: the idea that I own my self and my labor, and so if I "mix" my own labor with something previously unowned or to which I have a have a right, I come to own the thing with which I have mixed by labor. This initially intuitively attractive idea is at the basis of the theories of property and the role of government of John Locke and Robert Nozick. Locke saw and Nozick agreed that fairness to others requires a proviso: that I leave "enough ...


Algunas Reflexiones Sobre La Protección Penal De Cheque, Martin Paolantonio Jan 1992

Algunas Reflexiones Sobre La Protección Penal De Cheque, Martin Paolantonio

Martin Paolantonio

Nota a fallo con consideraciones sobre el alcance de la tutela penal del cheque y el delito de libramiento de cheque sin provisión de fondos


Anotaciones Sobre El Nuevo Régimen Legal De Factura Conformada (Ley 24.064), Martin Paolantonio, Salvador Bergel Jan 1992

Anotaciones Sobre El Nuevo Régimen Legal De Factura Conformada (Ley 24.064), Martin Paolantonio, Salvador Bergel

Martin Paolantonio

Análisis de los aspectos principales de la ley 24.064 que incorporó una nueva normativa para la factura conformada


La Eficacia Del Derecho Internacional Frente A La Cuestión Ambiental, Martin Paolantonio Jan 1992

La Eficacia Del Derecho Internacional Frente A La Cuestión Ambiental, Martin Paolantonio

Martin Paolantonio

Se subraya la necesidad de un consenso real en el plano internacional para que el derecho ambiental deje de ser primariamente declarativo


Litigation & Inequality: Federal Diversity Jurisdiction In Industrial America, 1870–1958, Edward A. Purcell Jr. Jan 1992

Litigation & Inequality: Federal Diversity Jurisdiction In Industrial America, 1870–1958, Edward A. Purcell Jr.

Books

Through the prism of litigation practice and tactics, Purcell explores the dynamic relationship between legal and social change. He studies changing litigation patterns in suits between individuals and national corporations over tort claims for personal injuries and contract claims for insurance benefits. Purcell refines the "progressive" claim that the federal courts favored business enterprise during this time, identifying specific manners and times in which the federal courts reached decisions both in favor of and against national corporations. He also identifies 1892-1908 as a critical period in the evolution of the twentieth century federal judicial system.


Reinsurance: Bad Faith Considerations And Insolvency Dilemma, Hui-Ju Hsieh Jan 1992

Reinsurance: Bad Faith Considerations And Insolvency Dilemma, Hui-Ju Hsieh

LLM Theses and Essays

Reinsurance is insurance that an insurance company purchases from another insurance company. The original insurance company is called the reinsured, and the insurance company that is contracted is called the reinsurer. The main purpose of reinsurance is to disperse or spread the risk of loss. The reinsurance relationship is frequently characterized as an exercise of fiduciary responsibility based upon an undertaking of utmost good faith between contracting parties. However, disputes arise; most litigation involving reinsurance has been between reinsurers and persons not party to the reinsurance agreement. This paper’s first major area of discussion is the relationship between the ...


Newsletter Vol.20 No.1 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions Jan 1992

Newsletter Vol.20 No.1 1992, National Center For The Study Of Collective Bargaining In Higher Education And The Professions

National Center Newsletters

No abstract provided.


Contract Warranties And Remedies: A Comprehensive Survey Of The Creation, Modification And Exclusion Of Contract Warranties And Remedies For Attorneys And Contracting Professionals, Joseph J. Corey Jr. Jan 1992

Contract Warranties And Remedies: A Comprehensive Survey Of The Creation, Modification And Exclusion Of Contract Warranties And Remedies For Attorneys And Contracting Professionals, Joseph J. Corey Jr.

Campbell Law Review

This article discusses the types of warranties and remedies that are available by contract and by operation of the law. It also discusses how these warranties and remedies can be limited, waived, and excluded by contract language, actions of the parties, and operation of the law.


Opting In And Out Of Fiduciary Duties In Cooperative Ventures: Refining The So-Called Coasean Contract Theory, Charles O'Kelley Jan 1992

Opting In And Out Of Fiduciary Duties In Cooperative Ventures: Refining The So-Called Coasean Contract Theory, Charles O'Kelley

Faculty Scholarship

Professor O’Kelley comments on a familiar problem in the law of closely held business associations - the alleged exploitation of weaker or minority investors by stronger or majority participants. The fact pattern is simple. At the outset of the cooperative venture, a stronger participant assumes the role of proprietor, partner, or majority shareholder, while the weaker participant assumes the role of agent, partner, or minority shareholder. For whatever reason, the venturers do not explicitly guarantee or protect the weaker participant’s right to income or continued participation in the venture. Consequently, at some later date the stronger participant reduces or ...


Striking The Balance In Contract History, Joel Levin, Banks Mcdowell Jan 1992

Striking The Balance In Contract History, Joel Levin, Banks Mcdowell

Cleveland State Law Review

The past three decades have seen an enormous amount of writing by Anglo-American scholars about contract theory. If nothing else, this demonstrates the almost universal perception that there are serious problems with the received theory of contract, the product of giants like Holmes, Williston, Cardozo and Corbin. This theoretical activity, instead of creating a new paradigm, has produced divergent theoretical approaches with various bands of scholars striking off in quite different directions, and in the process leaving most judges and lawyers back at the starting point. What should we be trying to do when we build a contract theory for ...


Section 1983 And The Collateral Source Rule, Linda L. House Jan 1992

Section 1983 And The Collateral Source Rule, Linda L. House

Cleveland State Law Review

This note examines the different approaches to the application of the collateral source rule among federal and state courts entertaining §1983 actions and the principles which should be applied by courts to resolve the choice of law problem raised by the rule. The first section discusses the common law collateral source rule and recent state legislative alterations and abrogation of it. The second section explores current applications of the collateral source rule in federal and state courts entertaining §1983 actions. The third section suggests principles which should guide courts in their applications of the collateral source rule. This section further ...


Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel Jan 1992

Freedom From Reliance: A Contract Approach To Express Warranty, Sidney Kwestel

Scholarly Works

No abstract provided.


The Plight Of The Agunah: A Study In Halacha, Contract, And The First Amendment, Irving Breitowitz Jan 1992

The Plight Of The Agunah: A Study In Halacha, Contract, And The First Amendment, Irving Breitowitz

Maryland Law Review

No abstract provided.


Unilateral Mistake: The Baseball Card Case, Andrew Kull Jan 1992

Unilateral Mistake: The Baseball Card Case, Andrew Kull

Washington University Law Review

Part I of this Article revisits the traditional account of unilateral mistake, arguing that a "subjective" theory focused on requirements of contract formation still provides the most convincing explanation of the case law and the best rule of decision. Part II suggests that the original limits to relief for unilateral mistake came to be expanded as an unintended consequence of the Holmes/Williston "objective theory" of contract, though the present-day consequences of this development are very far from what either scholar would have approved. Part III examines the alternatives to the traditional conception of unilateral mistake currently advanced by influential ...


Due Process Jan 1992

Due Process

Touro Law Review

No abstract provided.


Case Comment: Smyth V. Szep Unsettling Settlements: Of Unconscionability And Other Things, David Vaver Jan 1992

Case Comment: Smyth V. Szep Unsettling Settlements: Of Unconscionability And Other Things, David Vaver

Articles & Book Chapters

The recent decision of the British Columbia Court of Appeal in Smyth v. Szep once again canvasses the validity of releases signed by injured victims in favour of insurance companies and once again plunges into the murky waters of contractual unconscionability. Both issues have become more or less permanent squatters on judicial calendars throughout North America, and it seems worthwhile to consider why this is so and whether something can be done to reduce their tenure at least in Canada.


1991 Revisions To Articles 3 And 4 Of The Uniform Commercial Code, Timothy Fisher Jan 1992

1991 Revisions To Articles 3 And 4 Of The Uniform Commercial Code, Timothy Fisher

Faculty Articles and Papers

No abstract provided.


Conflicting Visions: A Critique Of Ian Macneil’S Relational Theory Of Contract, Randy E. Barnett Jan 1992

Conflicting Visions: A Critique Of Ian Macneil’S Relational Theory Of Contract, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Perhaps the leading contemporary critic of placing consent at the center of contract law has been Ian Macneil. In his book The New Social Contract as well as in a series of complex and richly textured articles spanning nearly two decades, Macneil has eloquently presented and defended his now well-known relational theory of contract. It is a tribute to the important core of previously neglected truth in Macneil's theory that, for all its complexity, the theory can be summarized succinctly.

Macneil presents nothing less than a "holistic" "social theory" of human exchange--with particular emphasis on the human activity of ...


The Sound Of Silence: Default Rules And Contractual Consent, Randy E. Barnett Jan 1992

The Sound Of Silence: Default Rules And Contractual Consent, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this article, the author challenges the received wisdom of "gap-filling in the absence of consent" by showing how the concept of default rules bolsters the theoretical importance of consent. He accomplishes this by expanding and refining his analysis of a "consent theory of contract." The author proposes that the concept of default rules reveals consent to be operating at two distinct levels of contract theory. First, the presence of consent to be legally bound is essential to justify the legal enforcement of any default rules. Second, nested within this overall consent to be legally bound, consent also operates to ...


Some Problems With Contract As Promise, Randy E. Barnett Jan 1992

Some Problems With Contract As Promise, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The promise theory views the origin of contract in the making of a promise. This means that it views the creation of contracts as arising, in an important part, from the voluntary acts of promisors rather than from third parties like the State. In this regard, the theory facilitates the classical liberal value of freedom to contract. The promise theory also supports the notion that contracts should be interpreted according to the terms of the promise rather than by imposing terms on the parties. In this regard, the theory facilitates the classical liberal value of freedom from contract. These strengths ...