Law Commons^™

A New United Nations Mechanism For Encouraging The Ratification Of Treaties, David Weissbrodt

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The ratification of international human rights treaties is critical to the worldwide observance of human rights and fundamental freedoms. The United Nations General Assembly and Commission on Human Rights have repeatedly emphasized the importance of ratification and have frequently encouraged states to ratify the relevant international instruments. Despite these efforts, acceptance of human rights treaties has been uneven. A con- siderable number of states have failed to ratify.

Book Review (Reviewing Michael E. Parrish, Felix Frankfurter And His Times: The Reform Years (1982)), Richard A. Posner

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No abstract provided.

Advances And Altered Perspectives In English Legal History (Reviewing Morris S. Arnold, Et. Al., Eds., On The Laws And Customs Of England: Essays In Honor Of Samuel E. Thorne (1981)), Richard H. Helmholz

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No abstract provided.

The Constitution In The Supreme Court: State And Congressional Powers, 1801-1835, David P. Currie

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No abstract provided.

Participation, Public Law, And Venue Reform, Cass R. Sunstein

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No abstract provided.

The Search For Truth Continued, The Privilege Retained: A Response To Judge Frankel, Albert Alschuler

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No abstract provided.

Auctions And Sunk Costs In Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

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No abstract provided.

Musings On Form And Substance In Taxation (Reviewing Boris I. Bittker, Federal Taxation Of Income, Estates And Gifts (1981)), Joseph Isenbergh

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No abstract provided.

Book Review (Reviewing Paul R. Hyams, Kings, Lords And Peasants In Medieval England: The Common Law Of Villeinage In The Twelfth And Thirteenth Centuries (1980)), Richard H. Helmholz

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No abstract provided.

The Verdict Of Five Out Of Six Civil Jurors: Constitutional Problems, Hans Zeisel

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A criminal jury of fewer than 6 members and a jury in which 5 out of 6 can find a verdict were held unconstitutional by the U.S. Supreme Court for failing to meet the requirements of due process as mandated by the Fourteenth Amendment. In four states-Michigan is one of them-the 5 out of 6jury is the standard civil jury. Two questions are raised: first, whether such a jury violates the Michigan state constitution; second, whether such a 5 out of 6 civil jury violates the federal Constitution even though the civil jury is not protected by the Fourteenth Amendment.

Separation Of Functions: Obscurity Preserved, Antonin Scalia

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No abstract provided.

Support Your Local Professor Of Administrative Law, Antonin Scalia

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No abstract provided.

Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

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No abstract provided.

The Regulation Of Insider Trading, Daniel R. Fischel, Dennis W. Carlton

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No abstract provided.

Advances And Altered Perspectives In English Legal History, Richard H. Helmholz

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No abstract provided.

Court Rulemaking In Washington State, Hugh D. Spitzer

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Reviews the history and approach to court rule making in Washington State. Critiques the Washington Supreme Court’s weakening of the Judicial Council and the Court’s assumption of control of aspects of rulemaking that might better be handled by a Judicial Council or the Legislature.

Bringing People Back: Toward A Comprehensive Theory Of Taking In Natural Resources Law, William H. Rodgers, Jr.

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This Article attempts to bring people back into legal analysis by drawing upon behavioral preferences of human beings suggested by the laws of biology. Biological theory offers no all-encompassing explanations of legal outcomes, although it offers important, and much neglected, partial explanations.

That the law can be explained in this light suggests that courts have a view of human nature departing from the caricatures of much contemporary legal theory. We take as our setting an issue faced by each society in every era-property rights in natural resources.

Part I takes up the task of theory development by recanvassing property theory …

Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine

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"Peaceful picketing," the United States Supreme Court has said, "is the workingman's means of communication."' One line of analysis is that, as a means of communication, picketing is free speech and is therefore entitled to every constitutional protection afforded other forms of expression. This means that it cannot be subjected to special restrictions, such as antiboycott curbs, simply because it is picketing. The opposing line of analysis is that picketing is not simply speech; it is "speech plus." The "plus" element removes picketing from the realm of pure speech and enables it to be regulated in ways that the Constitution …

The Third United Nations Conference On The Law Of The Sea: The Tenth Session (1981), Bernard H. Oxman

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No abstract provided.

Introduction: On Evaluating The Draft Convention On The Law Of The Sea, Bernard H. Oxman

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No abstract provided.

Testimonial Immunity And The Privilege Against Self-Incrimination: A Study In Isomorphism, Peter Lushing

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This Article accepts and will develop the Court's isomorphic theory of immunity and privilege, and will show why Portash is nonetheless correct in result. A case for a broadened view of the privilege, partially because of the availability of testimonial immunity, will be made. Apftlbaum will be shown to be incorrect in result. This Article will also analyze the problem of immunized testimony and perjury by inconsistent statement, a problem faced once by the Court but left unresolved. Finally, this Article will discuss the constitutional requirements of an immunity statute, and consider an immunity case presently pending before the Supreme …

Bramblebush Revisited, Donald L. Burnett Jr.

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No abstract provided.

Building Theories Of Judicial Review In Natural Resources Law, William H. Rodgers, Jr.

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In the specialty of natural resources law, there is no reason to expect our tasks of description and prescription to be any easier. We deal, after all, with the allocation of scarce resources where there are winners and losers. This leads us quickly into substantive justice theories based on entitlements, needs, and deserts and process justice theories extending to each loser his due.

Justice theory is implemented through judicial review, and what courts do depends importantly upon behavioral assumptions about people, agencies of government, and empirical proof. The sources of these assumptions and evidence are often the sciences, and I …

Two Categories Of Discriminatory Intent, Eric Schnapper

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This Article suggests that the Court's current confusion derives in part from its failure to distinguish between two categories of discriminatory intent, which may be termed goal discrimination and means discrimination. Goal discrimination involves the invidious consideration of race in the selection of the objective which a government policy seeks to achieve. Means discrimination occurs when there is an invidious consideration of race in selecting or weighing the method to be used in achieving that objective. Both forms of discrimination fall within the equal protection clause's prohibition against discriminatory government action, but they involve different circumstances and thus must be …

Contract Law In Modern Commercial Transactions, An Artifact Of Twentieth Century Business Life?, James J. White

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Diligent first year law students study contract law with a passion previously reserved for romantic objects and religious idols. Their professors lead them in extensive and difficult intellectual explorations of the wilds of contract law. There are careful analyses of why damage recovery X will stimulate performance Y, why recovery A is appropriate to encourage the aggrieved party to return to the market, and so on and so forth. Lurking behind this year long analysis are several inarticulate hypotheses: that they make rational evaluations of the threat of legal sanctions; that they respond in other varied and subtle ways to …

Bottom Line Defense In Title Vii Actions: Supreme Court Rejection In Connecticut V. Teal And A Modified Approach, David Yellen

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Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against job applicants or employees on the basis of race, color, religion, sex, or national origin. The statute proscribes both intentional discrimination and facially neutral selection devices that disproportionately exclude members of minority groups from certain jobs and are unrelated to job performance. Proponents of the "bottom line defense" argue that even where the plaintiff proves that a particular step in the hiring or promotion process disparately affects minorities, title VII is not violated if the employer demonstrates that the result of the entire selection process, the …

Price Discrimination Law And Economic Efficiency, Edward H. Cooper

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The Clayton Act, as amended by the Robinson-Patman Act (15 U.S.C. § 13), undertakes to outlaw price "discrimination" upon proof of threatened injury to competition, and subject to specified defenses. Lawyers often bewail the fact that administration of this statute frequently fails to conform to an economist's notion of discrimination. For the most part, the complaints are addressed to the clear fact that, as drafted and interpreted, the statute wreaks unnecessary damage. In the name of protecting competition, competition and economic efficiency are often curtailed.

The Fifth Amendment, Self-Incrimination, And Foreign Prosecution: The Saga Of The Ryuyo Maru, Jeff M. Feldman

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In 1979, the M/V Ryuyo Maru No. 2, a Japanese fishing vessel, went aground off the coast of Alaska. During the course ofthe United States Coast Guard's investigation into the cause of themarine casualty, the captain of the vessel and several seamen attempted to avoid giving testimony at the Coast Guard inquest onthe ground that their testimony would tend to incriminate the munder the law of Japan. The ensuing litigation' over the extent towhich the fifth amendment protects witnesses from compulsory self-incrimination where the sole threat of criminal prosecution is by a foreign government contributes to a recent line of …

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

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Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

You're Fired!, Theodore J. St. Antoine

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In 1967 Professor Lawrence Blades of Kansas criticized the iron grip of the contract doctrine of employment at will, and argued that all employees should be legally protected against abusive discharge. The next dozen years saw a remarkable reaction. With rare unanimity, a veritable Who's Who of labor academics and labor arbitrators, Aaron, Blumrosen, Howlett, Peck, Stieber, and Summers, to name only some, stepped forth to embrace Blades' notion, and to refine and elaborate it. But the persons who counted the most, the judges and the legislators, hung back. In the 1960s, vast strides were taken at both the federal …