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An Essay On The Conceptual Foundations Of The Tax Benefit Rule, Patricia D. White

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A good deal has been written over the past forty-odd years about the tax benefit rule. Over this period the federal courts have decided many cases in which its application has been at issue, and the law journals have published a small but steady stream of commentary on the rule and its manifestations. Last term, in Hillsboro National Bank v. Commissioner, the Supreme Court issued an opinion that focused squarely, and at some length, on the tax benefit rule. Despite this attention, relatively little has been done to examine the conceptual foundations of the tax benefit rule and to …

Hawaii Tax Held Invalid: Court Decides First Case Of The Term, Patricia D. White

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Aloha Airlines, Inc.

v.

Director of Taxation, State of Hawaii (Docket No. 82-585)

Hawaiian Airlines, Inc.

v.

Director of Taxation, State of Hawaii (Docket No. 82-566)

Argued October 4. 1983. Decided November 1, 1983

Frank R. Kennedy, James J. White

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In an academic world thickly populated with persons of unlimited ego but of limited scholarly output, Frank Kennedy stands out as a remarkable exception. On the one hand he is the author of scholarly writings too numerous to recount; on the other he is a man of deep humility. A reader or listener soon learns he has strong views which he states with power and precision. Yet his humility is such that he will listen patiently to the most idiotic view of a colleague or student and will kindly help them find their way.

Perpetuity Reform, Lawrence W. Waggoner

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After years of debate, perpetuity reform is still controversial. To be sure, there is agreement among virtually all of the commentators and experts in the field that the Rule Against Perpetuities is in need of reform. The disagreement, on the surface, centers on the methods of reform to be employed. At least three basic methods have been advanced: (1) specific statutory repair of discrete problem areas; (2) reformation; and (3) wait-and-see. Each method has its sponsors, and each has in one form or another been adopted as part of the law of a few states. These methods are not mutually …

Relationism: Legal Theory For A Relational Society, Gidon A. G. Gottlieb

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No abstract provided.

Fixture Priorities, David G. Carlson

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No abstract provided.

Scholarly Books: What, To Whom And Why, James J. White

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A consideration of the role that the books reviewed in this edition will play in the future of American legal thought has led me to speculate about the transmission of ideas into acts and about the role of books in that transmission. In certain arenas, tracing an idea from its origins to its ultimate application is straightforward. For example, the evolution of Germany's Schlieffen plan for invading France can be traced with little difficulty from the circumstances responsible for its birth, through years of refinement, to its eventual application in World War I. The development and acceptance of a medical …

The Persistence Of Classical Style, Patrick O. Gudridge

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No abstract provided.

Statistics In Litigation: A Selective Bibliography, Michael G. Chiorazzi

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No abstract provided.

The Derivative And Discretionary-Function Immunities Of Presidential And Congressional Aides In Constitutional Tort Actions, Kathryn D. Sowle

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No abstract provided.

Comment, Bernard H. Oxman

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No abstract provided.

Institutional Injunctions, David Rudenstine

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No abstract provided.

Litigation Abuse And The Law Schools, John W. Reed

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At the Ninth Circuit Judicial Conference in July, 1983, one session was devoted to a discussion of "Excessive Discovery: A Symptom of Litigation Abuse." (Without knowing, I would guess that a similar title appeared on just about every judicial conference program this year-and last year, and the one before that.) Frank Rothman, President of MGM/United Artists, addressed the subject from the point of view of a corporate client, and his remarks are printed in this issue, beginning at page 342. Judges and trial lawyers expressed their views. And I was asked to comment on the extent to which the law …

Against Evaluator Relativity: A Response To Sen, Donald H. Regan

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In a recent essay in this journal Amartya Sen introduced the notion of an evaluator-relative consequence-based morality. The basic idea can be described very simply. A consequence-based morality is a morality that instructs each agent to maximize some objective function defined over states of affairs. Such a morality is evaluator neutral if it assigns to every agent the same objective function. If different agents have different objective functions, then the morality is evaluator relative. For example, a morality would be evaluator relative if it assigned to Jones an objective function giving greater weight to the welfare of Jones's children than …

Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar

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[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has …

The Recent Erosion Of The Secured Creditor's Rights Through Cases, Rules And Statutory Changes In Bankruptcy Law, James J. White

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One can view the law of creditors' rights as a series of cyclesin which alternatively the rights of the creditor and then those of the debtor are in ascendancy. Looking back through Americanlegislative history, one sees both the state legislatures and the Congress intervening on behalf of debtors in a variety of ways onmany occasions. An early example of such intervention was the enactment, particularly in the Midwest and West, of generous exemption laws that removed a variety of property beyond the reach of general creditors. A second example is the enactment of usury laws, which continue to be a …

The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein

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In this article, which both summarizes and updates an extensively footnoted article published last year ("Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?" 130 University of Pennsylvania Law Rmiew 521 (1982)), we report on this new case law and discuss the analytic framework that we think it suggests and requires.

The Invisible Discourse Of The Law: Reflections On Legal Literacy And General Education, James Boyd White

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My subject today is "legal literacy," but to put it that way requires immediate clarification, for that phrase has a wide range of possible meanings with many of which we shall have nothing to do. At one end of its spectrum of significance, for example, "legal literacy" means full competence in legal discourse, both as reader and as writer. This kind of literacy is the object of a professional education, and it requires not only a period of formal schooling but years of practice as well. Indeed, as is also the case with other real languages, the ideal of perfect …

The Impact Of Executions On Homicides: A New Look In An Old Light, Richard Lempert

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Ehrlich's first point is that if one is searching for deterrence it is the law in action (i.e., the actual incidence of executions) rather than the law on the books (i.e., the presence or absence of the death penalty) which is crucial. His second point is that in order to spot deterrent effects other factors which might affect homicide rates, such as conviction rates and unemployment rates, must be held constant. Many of those who believe that Ehrlich's work is fundamentally flawed nevertheless accept these criticisms. This article follows Sellin's approach but takes account of Ehrlich's criticisms. Instead of comparing …

Extraordinary Writ Practice In Criminal Cases: Analogies For The Military Courts, Edward H. Cooper

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Extraordinary writs have two central functions in the hands of appellate courts. One is to enforce the court's mandate; there is no particular difficulty with this use of the writs, and no more need be said about it. The other function is to circumvent the ordinary channels of appellate review. In this function, writs operate as appeals in all but name. As this use has become more and more routine, it would be more appropriate to speak of them as "appeals writs" rather than extraordinary writs. My assignment is to speak of the experience with appeals writs in criminal cases …

The New Deal Regulatory Model: A History Of Criticisms And Refinements, Daniel J. Gifford

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When the Roosevelt administration took office in March 1933, the nation was suffering from the onslaught of the Great Depression. The complex set of economic and regulatory policies constituting President Franklin Roosevelt's "New Deal" focused primarily on restoring health to the economy and secondarily on achieving a modicum of income redistribution. The Roosevelt administration, however, possessed neither a clear understanding of the causes of the Depression, nor a coherent, stable, and workable scheme for ending it. Nevertheless, that administration's tenure produced widespread federal economic regulation and brought ferment, imagination, and creativity to theoretical and practical regulatory techniques.

Discretionary Decisionmaking In The Regulatory Agencies: A Conceptual Framework, Daniel J. Gifford

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For years, Professor Kenneth Culp Davis has directed the professional public's attention to the prevalence of what he believes to be insufficiently confined administrative discretion. 1 Davis has found powers of unduly wide latitude in agencies and administrators, such as tax collectors, 2 police officers, 3 welfare administrators, 4 and independent agencies supervising business behavior. 5 In general, Davis recommends confining the discretionary powers of agencies and officials more narrowly than they have been done in the past. He suggests that where discretion cannot practically be so confined, it should be "checked" or "structured." 6 Thus, Davis urges that "one …

Adverse Possession And Subjective Intent, Richard H. Helmholz

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No abstract provided.

Equitable Division And The Law Of Finders, Richard H. Helmholz

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No abstract provided.

Interstate Exploitation And Judicial Intervention, Saul Levmore

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No abstract provided.

A Reply To Landes: A Faulty Study Of No-Fault's Effect On Fault, Saul Levmore, Jeffrey O'Connell

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No abstract provided.

Statutory Interpretation--In The Classroom And In The Courtroom, Richard A. Posner

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This paper continues a discussion begun in an earlier paper in this journal.1 That paper dealt primarily with the implications for statutory interpretation of the interest-group theory of legislation, recently revivified by economists; it also dealt with constitutional interpretation. This paper focuses on two topics omitted in the earlier one: the need for better instruction in legislation in the law schools and the vacuity of the standard guideposts to reading statutes- the "canons of construction." The topics turn out to be related. The last part of the paper contains a positive proposal on how to interpret statutes.

The Constitution In The Supreme Court: Article Iv And Federal Powers, 1836-1864, David P. Currie

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Continuing his critical analysis of the constitutional decisions of the Taney period, Professor Currie examines cases involving the privileges and immunities clause, fugitives from slavery and criminal prosecution, and intergovernmental immunities, as well as cases dealing with the scope of federal judicial and legislative powers. In these decisions, with the glaring exception ofScott v. Sandford, he finds additional evidence that in general the Taney Court continued to enforce constitutional limitations vigorously against the states and to construe federal authority generously.

The Most Insignificant Justice: A Preliminary Inquiry, David P. Currie

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No abstract provided.

The Direct And Collateral Estoppel Effects Of Alternative Holdings, Jo Desha Lucas

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No abstract provided.