Law Commons^™

Law & Society: Its Research, Richard O. Lempert

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Writing in 1968 on research in the then infant discipline of law and social science, Harry Kalven noted with some pride the growing body of book-length work in the area. While the "relevant" bookshelf in Kalven's office was "still well under five feet," there had for Kalven "been nothing like [these books] previously, and their existence mark[ed] a major change in the relationship of law and science." Today, when I look around my office, I see 11 relevant bookshelves, which is only a small fraction of what has been produced.

Protection Of Biodiversity Under The Public Trust Doctrine, Ralph W. Johnson, William C. Galloway

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The public trust doctrine is an ancient Roman legal doctrine that has been applied in both England and the Umted States. The doctrine traditionally addressed questions of public access to and use of commercially navigable waters for navigation, fisheries and various other uses of the underlying seabeds, lake bottoms, and riverbeds. In recent years, the public trust doctrine has been invoked to protect birds and other wildlife, water quality, ecological and environmental values, and different types of recreation. Although no public trust case has applied the doctrine to protect biodiversity per se, it seems clear by analogy to existing case …

Testing The Limits Of Savings And Loan Tax-Free Mergers, Patricia D. White

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No abstract provided.

The Office Of Chief Judge Of A Federal Court Of Appeals, Wilfred Feinberg

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Article by Wilfred Feinberg, Chief Judge of the United States Court of Appeals for the Second Circuit (1980–1988), regarding the history and duties of a chief judge of a court of appeals. Document includes handwritten notes and was originally published in the Fordham Law Review.

Pollution Control By Effluent Charges: It Works In The Federal Republic Of Germany, Why Not In The U.S., Gardner M. Brown Jr., Ralph W. Johnson

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This article describes the recent Federal Republic of Germany effluent charge law and the political and legal background that permitted this law to be enacted. The impact of that law is assessed, although the assessment is necessarily tentative in view of the short experience with the law to date. The economic and legal implications of enacting an effluent charge law in the United States also are analyzed. Included in this discussion are the advantages and disadvantages of state vs. federal enactment, the constitutional objections that might be raised to such a law, and how it might be coordinated with existing …

Introduction, Terrance Sandalow

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The articles that follow, initially presented in 1983 as the thirty-second series of Thomas M. Cooley Lectures, address a subject that has deep roots in the United States' history. Assurances that there would be constitutional protection of what are now called human rights-in the United States, they have more frequently been referred to as civil liberties and civil rights or individual rights and liberties-was a practical condition for the adoption of the Constitution. The belief that such guarantees are of vital importance in maintaining a society that is both free and just has over time become even more deeply embedded …

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

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Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

The Evolution Of Refugee Status In International Law: 1920-1950, James C. Hathaway

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A refugee is usually thought of as a person compelled to flee his State of origin or residence due to political troubles, persecution, famine or natural disaster. The refugee is perceived as an involuntary migrant, a victim of circumstances which force him to seek sanctuary in a foreign country. Since Rome's reception of the fleeing Barbarians, States have opened their doors to many divergent groups corresponding in a general way to this description of what it means to be a refugee. During a period of more than four centuries prior to 1920, there was little concern to delimit the scope …

The Mythical Meritocracy Of Law School Admissions, James C. Hathaway

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Because more people apply to law schools than can be accepted, the admissions procedure at most faculties has been designed to select the best qualified persons from the applicant pool. Selection criteria are adopted to enable law school administrators to determine fairly and objectively which applicants are most likely to succeed in legal studies. Even with the advent of admissions policies designed to increase opportunities for members of various minority groups to study law, specific admissions decisions within each preferred category are generally made with a view to choosing the candidates judged most able to do well at law school. …

The Nonprobate Revolution And The Future Of The Law Of Succession, John H. Langbein

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The popular demand for probate avoidance has coincided with a fundamental change in the nature of wealth. Mogt property now takes the form of claims on financial intermediaries, who can easily transfer account balances on death, without court proceedings. Further, creditors have developed a variety of techniques for collecting decedents' debts without probate. Professor Langbein sees in these developments the basis for legitimating the main will substitutes as "nonprobate wills" and for unifying the constructional law of wills and will substitutes.

Hawaiian Ripples, Patricia D. White

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Bacchus Imports, Ltd. and Eagle Distributors, Inc.

v.

George Freitas, Director of Taxation of the State of Hawaii

(Docket No. 82-1565)

Argued January 11, 1984

Sentencing Discretion: Current Trial And Appellate Court Perspectives In Idaho, Donald L. Burnett Jr.

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No abstract provided.

The Religion Clauses And The Burger Court, Philip B. Kurland

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No abstract provided.

Further Notes On Transfer Tax Rates Notes, Joseph Isenbergh

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No abstract provided.

Simplifying Retained Life Interests, Revocable Transfers, And The Marital Deduction, Joseph Isenbergh

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No abstract provided.

Timing As Jurisdiction: Federal Civil Appeals In Context, Edward H. Cooper

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The purpose of these few pages is to show that the calculus of appeal timing is inherently complex. If we are to continue the effort to capture the calculus in rules, the rules will be correspondingly complex. The complex rules will have some virtues; nonetheless, the rules also are likely to generate misunderstanding and may tend to produce undesirable results. It is very tempting to replace the rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now become appropriate depends on the same …

Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar

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Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …

Comments On 'Tax Neutrality Between Equity Capital And Debt', Douglas A. Kahn

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Professor Andrews' proposals are aimed at eliminating a tax bias that affects a corporation's choice of a method of raising additional capital. Professor Andrews believes that the current tax system favors a corporation which raises capital internally by accumulating its income (or by borrowing) rather than by issuing stock. Professor Andrews seeks a neutral system that permits the choice of the manner in which capital is raised to be made on economic grounds without influence of the tax laws.

Discrimination Bans Demonstrate Approaching Maturity Of Employment Law, Theodore J. St. Antoine

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The pervasive message of this symposium sponsored by the Labor Relations Law Section, whether or not intended by the individual authors, is that American employment law is moving beyond adolescence and may be approaching maturity.

Rethinking The Substantive Rules For Custody Disputes In Divorce, David L. Chambers

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A few states, mostly in the West and South, still retain a preference in custody disputes for placing young children with their mothers. In most other states, legislatures or courts have replaced the maternal presumption with a rule directing courts to be guided solely by the child's "welfare" or "best interests." A few legislatures have created a new preference for joint custody, directing courts to consider favorably requests by a parent for such arrangements, even over the objection of the other parent. This Article argues that the trend away from the maternal presumption is sensible, but that the current best-interests …

The Moral Responsibility Of Law Schools, Terrance Sandalow

Articles

The subject I have been asked to address, the moral responsibility of-law schools, is perplexing, less because answers to the implicit question are uncertain than because the meaning of the question is unclear. Our ideas about moral responsibility have been formed in reference to individuals. They presuppose the existence of distinctively human characteristics such as understanding and will. What, then, can be meant by the moral responsibility of "law schools," institutions that, just because they are not human, necessarily lack these capacities?

Use And Non-Use Of Contract Law In Japan, Whitmore Gray

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This article first defines the scope of enquiry, then surveys some of the existing literature, and finally, presents the results of my preliminary survey interviews and questionnaire. It is my hope that it will serve as a basis form discussion leading to better definition of the problems for research in this area, and will suggest ways to proceed to gather the information necessary for more sophisticated exposition and commentary.

The Force Of Irony: On The Morality Of Affirmative Action And United Steelworkers V. Weber, Richard O. Lempert

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In recent years, affirmative action has posed difficult problems not only for courts and legislatures but also for individuals who puzzle over what is just. The claims made both by the proponents of programs that establish preferences on the basis of race and by their staunch opponents have an intuitive appeal. The slave society that preceded the Civil War and the Jim Crow era that endured for a century afterward are a shameful legacy for a nation that seeks to define itself in terms of justice and freedom. The proportionate underrepresentation of black people in positions of power and privilege …

Comparable Worth In Antidiscrimination Legislation: A Reply To Freed And Polsby, Mary E. Becker

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No abstract provided.

The Pitfalls Of Interpretation, Richard A. Epstein

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No abstract provided.

In Defense Of The Contract At Will, Richard A. Epstein

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No abstract provided.

Insider Trading And Investment Analysts: An Economic Analysis Of Dirks V. Securities And Exchange Commission, Daniel R. Fischel

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No abstract provided.

Legitim In English Legal History, Richard H. Helmholz

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No abstract provided.

Efficient Markets And Puzzling Intermediaries, Saul Levmore

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No abstract provided.

The Participation Of Charities In Limited Partnerships, Michael H. Schill

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No abstract provided.