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Full-Text Articles in Law
The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler
The Support-Or-Advocacy Clauses, Richard Primus, Cameron O. Kistler
Articles
Two little known clauses of a Reconstruction-era civil rights statute are potentially powerful weapons for litigators seeking to protect the integrity of federal elections. For the clauses to achieve their potential, however, the courts will need to settle correctly a contested question of statutory interpretation: do the clauses create substantive rights, or do they merely create remedies for substantive rights specified elsewhere? The correct answer is that the clauses create substantive rights.
Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard
Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard
Articles
This study investigates risk factor disclosures, examining both the voluntary, incentive-based disclosure regime provided by the safe harbor provision of the Private Securities Litigation Reform Act as well as the SEC's subsequent mandate of these disclosures. Firms subject to greater litigation risk disclose more risk factors, update the language more from year to year, and use more readable language than firms with lower litigation risk. These differences in the quality of disclosure are pronounced in the voluntary disclosure regime, but converge following the SEC mandate as low-risk firms improved the quality of their risk factor disclosures. Consistent with these findings, …
Revising Civil Rule 56: Judge Mark R. Kravitz And The Rules Enabling Act, Edward H. Cooper
Revising Civil Rule 56: Judge Mark R. Kravitz And The Rules Enabling Act, Edward H. Cooper
Articles
This contribution uses the history of amending Federal Rule of Civil Procedure 56, “Summary Judgment,” to pay tribute to Mark R. Kravitz and to the Rules Enabling Act process itself. The three central examples involve discretion to deny summary judgment despite the lack of a genuine dispute as to any material fact, the choice whether to prescribe a detailed “point–counterpoint” procedure for presenting and opposing the motion, and the effect of failure to respond to a motion in one of the modes prescribed by the rule. These topics are intrinsically important. The ways in which the Civil Rules Advisory Committee …
It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn
It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn
Articles
This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and …
Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn
Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn
Articles
In the August 3 issue of Tax Notes, Prof. Stephen Cohen wrote an article about Justice Sonia Sotomayor’s opinions in three tax cases. Of those three cases, only the opinion she wrote in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), Doc 2006- 21522, 2006 TNT 203-4, is worthy of comment. Although the Second Circuit’s decision in that case was affirmed by the Supreme Court under the name Knight v. Commissioner, the construction of the critical statutory language that Justice Sotomayor adopted was rejected and criticized by Chief Justice Roberts, writing for a unanimous court. …
The Influence Of International Practice On The Revision Of Article 5 Of The Ucc, James J. White
The Influence Of International Practice On The Revision Of Article 5 Of The Ucc, James J. White
Articles
The topic of this symposium is the influence that international law has had on domestic law of the United States. I believe that the story of the revision of Article 5 of the Uniform Commercial Code fits here, but some might dispute that. Although it is certainly fair to say that international practice-in a sense international law-was a powerful influence on the revision of Article 5 of the Uniform Commercial Code, that practice, and the way in which that influence was exerted were almost entirely sui generis to the letter of credit law, practice and history.
Controlling Inadvertent Ambiguity In The Logical Structure Of Legal Drafting By Means Of The Prescribed Definitions Of The A-Hohfeld Structural Language, Layman E. Allen, Charles S. Saxon
Controlling Inadvertent Ambiguity In The Logical Structure Of Legal Drafting By Means Of The Prescribed Definitions Of The A-Hohfeld Structural Language, Layman E. Allen, Charles S. Saxon
Articles
Two principal sources of imprecision in legal drafting (vagueness and ambiguity) are identified and illustrated. Virtually all of the ambiguity imprecision encountered in legal discourse is ambiguity in the language used to express logical structure, and virtually all of· the imprecision resulting is inadvertent. On the other hand, the imprecision encountered in legal writing that results from vagueness is frequently, if not most often, included there deliberately; the drafter has considered it and decided that the vague language· best accomplishes the purpose at hand. This paper focuses on the use of some defined terminology for minimizing inadvertent ambiguity in the …
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
The Emergence Of A General Reformation Doctrine For Wills, Lawrence W. Waggoner, John H. Langbein
Articles
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.
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Reformation Of Wills On The Ground Of Mistake: Change Of Direction In American Law?, John H. Langbein, Lawrence W. Waggoner
Articles
Although it has been "axiomatic" that our courts do not entertain suits to reform wills on the ground of mistake, appellate courts in California, New Jersey, and New York have decided cases within the last five years that may presage the abandonment of the ancient "no-reformation" rule. The new cases do not purport to make this fundamental doctrinal change, although the California Court of Appeal in Estate of Taff and the New Jersey Supreme Court in Engle v. Siegel did expressly disclaim a related rule, sometimes called the "plain meaning" rule. That rule, which hereafter we will call the "no-extrinsic-evidence …
Direct Judicial Review And The Doctrine Of Ripeness In Administrative Law, Joseph Vining
Direct Judicial Review And The Doctrine Of Ripeness In Administrative Law, Joseph Vining
Articles
There has been recent interest in rationalizing and codifying the opportunities for judicial review of federal administrative determinations outside an enforcement context or special proceedings designated by statute. Abbott Laboratories v. Gardner culminated the development of a strong judicial presumption in favor of such review, founded in general considerations and justified by the broad language of the Administrative Procedure Act (AP A or Act). Since the petitioners in Abbott had theoretical rights to later review of the agency position in enforcement proceedings, the Court called the procedure "pre-enforcement" review. But similar opportunities for immediate and direct review of agency positions …
Better Organization Of Legal Knowledge, Layman E. Allen, Tomoyuki Ohta
Better Organization Of Legal Knowledge, Layman E. Allen, Tomoyuki Ohta
Articles
The increasing need of legislatures to draft complicated statutes, e.g., the Internal Revenue Code, requires the development of new techniques for defining and communicating complicated policies both accurately and understandably. At present, these complicated statutes are expressed in long, convoluted sentences with frequent uses of exceptions and limitations. Current drafting technique, with its inadequacies, often hinders a comprehensive understanding of the policy being communicated and often fails to communicate the policy accurately. Moreover, with the voluminous increase of legal literature in recent times, legal researchers experience increasing difficulty in attempting to retrieve relevant judicial and administrative interpretations. The authors propose …
Change In The Meaning Of Consortium, Evans Holbrook
Change In The Meaning Of Consortium, Evans Holbrook
Articles
LAWYERS have long boasted of the flexibility of the common law, of its ability to adapt itself to the needs of changing conditions of society, of its responsiveness to sociological progress. And while eager reformers have often-and with much reason complained that the law is laggard in its response to the needs of the people, yet it is clear that sooner or later the courts generally bring themselves into accord with "what is sanctioned by usage, or held by the prevailing morality or strong and preponderant public 'opinion to be greatly and immediately necessary to the public welfare." This responsiveness …
Legislation In Vague Or General Terms, Ralph W. Aigler
Legislation In Vague Or General Terms, Ralph W. Aigler
Articles
FOR some reason, probably in part the increasing complexity of our life and relationships, but more largely, perhaps, the growing tendency to regulate everybody and everything by positive law, the courts have been called upon with increasing frequency to pass upon the effectiveness of statutes and ordinances phrased in indefinite terms. In a very interesting and valuable paper, Professor Freund has pointed out the weakness and strength, on the one hand, of legislation in general terms, and on the other hand, legislation in which the rule of conduct is attempted to be laid down with precision. His interest apparently lay …
Combination Among Physicians To Fix Prices For Professional Services, Harry B. Hutchins
Combination Among Physicians To Fix Prices For Professional Services, Harry B. Hutchins
Articles
The case of Rohlf v. Kasemeer et al., decided by the Supreme Court of Iowa, November 18, 1908, and reported in 118 N. W. Rep., p. 276, although primarily upon the construction of a local statute, involves a question of general interest. The plaintiff therein, who is a physician, together with thirteen others of the same profession, all residing and practicing in the same county, entered into an agreement, combination or understanding, the terms of which are not given, but the object of which was to fix and maintain the fees and charges to be exacted for medical and surgical …