Law Commons^™

Pornography: Social Science, Legal, And Clinical Perspectives, Cass R. Sunstein, Catharine A. Mackinnon, Cheryl A. Champion, Edward Donnerstein

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No abstract provided.

Routine And Revolution, Cass R. Sunstein

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No abstract provided.

The Role Of The President And Omb In Informal Rulemaking, Cass R. Sunstein, Peter L. Strauss

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No abstract provided.

Address Address, Philip B. Kurland

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No abstract provided.

The Origins Of The Religion Clauses Of The Constitution, Philip B. Kurland

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No abstract provided.

The Rise And Fall Of The Doctrine Of Separation Of Powers, Philip B. Kurland

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No abstract provided.

Bernie, Gerhard Casper

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No abstract provided.

Government Control Of Information, Cass R. Sunstein

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No abstract provided.

Hostile Share Acquisitions And Corporate Governance: A Framework For Evaluating Antitakeover Activities, John H. Matheson, Jon R. Norberg

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In recent years, there has been a significant increase in the number of hostile share acquisitions of American businesses. The authors examine the validity of the various defensive measures employed by target companies to defeat or deter a hostile takeover bid. They argue that antitakeover activity should not be viewed as a separate subset of legal analysis; rather, it should be analyzed according to four traditional principles of corporate governance: (1) the discretion afforded corporate management by the business judgment rule; (2) the prohibition against discriminating between members of the same class of shareholders; (3) the prohibition against shifting control …

Statutes Of Limitations In Minnesota Choice Of Law: The Problematic Return Of The Substance-Procedure Distinction, Laura Cooper

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Assume that you are an attorney seeking to determine the statute of limitations applicable in Minnesota to a case with multistate aspects. Perhaps you consult the Dunnell Minnesota Digest 2d, which states succinctly: "If a cause of action not arising in this state or accruing to a citizen thereof is barred by the law of another state it is barred here." 1 The encylopedia then states several corollary propositions for multistate cases with different fact patterns and provices numerous case citations in support of the propositions. What the reference unfortunately fails to tell you is that the legal propositions and …

Prosecutorial Discretion In Japan: A Response, Daniel H. Foote

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Marsha Goodman's Prosecutorial Discretion in Japan, with its thoroughly researched description of the manner in which that discretion is exercised-including several new case studies-is an important addition to English-language literature on the Japanese legal system and raises numerous interesting issues regarding the Japanese criminal justice system.

Goodman focuses much of her attention on the lengthy battle over the abuse of prosecutorial discretion doctrine in Japan. This discussion provides a fine example of a classic pattern of legal debate in Japan. As in this case, defense counsel familiar with an issue frequently initiate movements for change in criminal procedure standards …

The Drafting Process For Cabinet Bills, Daniel H. Foote

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I have undertaken this article in hope that it may be of some help in promoting public understanding of the actual manner of review by the Cabinet Legislation Bureau-one step in the drafting process for legislation introduced by the Cabinet-and of the diligent efforts of the r��presentatives of the various ministries with whom we regularly come into contact. It goes without saying that the views and explanations contained herein, along with any inadequacies or inaccuracies in this account, are solely the responsibility of this author.

Some Thoughts On Legal Education In Japan, Daniel H. Foote

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This piece is based upon a talk given at the Harvard Law Association of Japan meeting on December 4, 1985, by Daniel H. Foote.

Published in Japanese - English original draft provided.

Compelling Testimony In Alaska: The Coming Rejection Of Use And Derivative Use Immunity, Jeff M. Feldman

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Until 1972, when the Supreme Court upheld a federal use andderivative use immunity statute in Kastigar v. United States, virtually every court that considered the issue of the compulsion of testimony favored transactional immunity. It appears that most courts interpreted the Supreme Court's 1892 decision in Counselman v. Hitchcock as finding only transactional immunity constitutional. Since Kastigar, the Alaska Supreme Court has had several opportunities totake sides in the debate over the grant of immunity constitutionally required to compel testimony. On each such occasion, the court has expressed a preference for transactional immunity, but has carefullyavoided resolving the …

Dreams, Prophecy And Sorcery: Blaming The Secret Offender In Medieval Iceland, William I. Miller

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An eminent legal historian once noted that the fundamental problem of law enforcement in primitive societies is that of the secret offender. The Icelandic legal and dispute processing systems depended on a wrongdoer publishing his deed, or at least committing it in an open and notorious manner. No state agencies existed to investigate and discover the non-publishing wrongdoer. But there were strong normative inducements to wrong openly; one's name was at stake. There was absolutely no honor in thievery, only the darkest shame; the ransmadr, on the other hand, suffered no shame for his successful raids, even if he did …

The Uniform Statutory Rule Against Perpetuities, Lawrence W. Waggoner

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When the National Conference of Commissioners on Uniform State Laws recently approved the Uniform Statutory Rule Against Perpetuities, it may at long last have made perpetuity reform achievable in this country. Coming, as it does, on the heels of the 1981 promulgation of the Restatement (Second) of Property (Donative Transfers), which adopts the same general type of perpetuity reform, and having been unanimously endorsed by the House of Delegates of the American Bar Association, the Board of Regents of the American College of Probate Counsel, and the Board of Governors of the American College of Real Estate Lawyers, the Uniform …

Dancing On The Edge Of Article 9, James J. White

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Despite the fact that Article 9 is a much more comprehensive personal property security statute than was ever found in American law prior to its enactment, cases continue to present issues on the scope of the Article. Gone are the cases in which a court was called upon to determine whether a "conditional sales contract" could be dealt with under the "factor's lien" law; it is now clear that all such personal property security devices are governed by Article 9. Yet many problems remain for the unwary lawyer. I will identify several and deal in detail with three of these …

The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan

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For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice. The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is …

The Twelve-Person, Unanimous Jury: Does It Have More Than History To Recommend It?, Richard O. Lempert

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My focus today will be on the twelve-person unanimous jury and on the contrasts between such juries and six-person juries or twelve-person juries than can return verdicts by ten-two or nine-three votes. Until about fifteen years ago, it appeared that the sixth and seventh amendments required all federal juries to have twelve members who reached unanimous verdicts, and it appeared possible that the Supreme Court would force the states to conform to the federal standards. Instead, the court did almost the opposite. It sanctioned juries as small as size six in state criminal cases and federal civil cases, and it …

General Principles Of Civil Law Of The People's Republic Of China (Translation), Whitmore Gray, Henry R. Zheng

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(Adopted April 12, 1986, at the Fourth Session of the Sixth National People's Congress, to take effect on January 1, 1987.)'

Civil Procedure In Brazil, Keith S. Rosenn

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No abstract provided.

Judicial Criticism, James Boyd White

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Today I shall talk about the criticism of judicial opinions, especially of constitutional opinions. This may at first seem to have rather little to do with our larger topic, "The Constitution and Human Values," but I hope that by the end I will be seen to be talking about that subject too. In fact I hope to show that in what I call our "criticism" our "values" are defined and made actual in most important ways.

Alternative Methodologies In Contemporary Jurisprudence: Comments On Dworkin, Philip E. Soper

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I have two brief points to make. Both involve recent developments in jurisprudence, by which I mean by and large the subject that Ronald Dworkin has just been discussing. Indeed, the first point is little more than an acknowledgement of the debt that is owed to Dworkin, not only for his specific contributions to this field, but for the implications of his work for law teaching generally.

What A Sensible Natural Lawyer And A Sensible Utilitarian Agree About And Disagree About: Comments On Finnis, Donald H. Regan

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Before I start, let me say two things. First of all, to the extent that John Finnis is entering a plea for more attention to what is a relatively neglected tradition (in the narrow his message a hundred percent. And you courd learning about the natural law tradition than by reading his book, Natural Law and Natural Rights. My second introductory observation is that Finnis and I agree about many more things than you might expect if you just think of him as a natural law theorist and me as a utilitarian. I am very eccentric as a utilitarian. He …

Law's Halo, Donald H. Regan

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Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation - and I shall clarify what I mean when I say there is no moral obligation to obey the law - as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the law's moral significance. In our thinking about law in a reasonably just society, we have a strong inclination to …

Error Behind The Plate And In The Law, Richard O. Lempert

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Casey Stengel, the great manager of the New York Yankees, and later the New York Mets, once dreamed, or so he said, that he had died and gone to heaven. The Lord greeted him personally as he walked through the Pearly Gates. "Casey," he said, "I'm so glad you're here. I want you to form a baseball team." Casey looked around him. He saw Babe Ruth, Lou Gehrig, Ty Cobb, Tris Speaker, Christy Mathewson, Walter Johnson, Grover Cleveland Alexander, and others-all of baseball's immortals-and he said, "I'll see what I can do." Obviously, one can do a lot with such …

A Tribute To Professor Leroy S. Merrifield, Theodore J. St. Antoine

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Although I have collaborated with Leroy Merrifield on four editions of a labor law casebook over the past twenty years, and although we have each taught as a visitor at the other's law school, I did not fully appreciate the hidden dimensions of this quiet, unassuming scholar until we spent a day together in early 1986 at EPCOT. To begin with, Leroy had to use all his patient, persistent cajolery to entice me and another academic colleague (who is almost as staid and unbending as I am) to join him, along with our respective spouses, on an expedition to Disney …

Gift, Sale, Payment, Raid: Case Studies In The Negotiation And Classification Of Exchange In Medieval Iceland, William I. Miller

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Near the end of Eyrbyggja saga Porir asks Ospak and his men where they had gotten the goods they were carrying. Ospak said that they had gotten them at Pambardal. "How did you come by them?" said Porir. Ospak answered, "They were not given, they were not paid to me, nor were they sold either." Ospak had earlier that evening raided the house of a farmer called Alf and made away with enough to burden four horses. And this was exactly what he told Porir when he wittily eliminated the other modes of transfer by which he could have acquired …

Law And Alaska Natives: The Warp And Woof Of A Field Of Law In Transition, Ralph W. Johnson

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Reviewing Alaska Natives and American Laws, by David Case (1984).

The Role Of The Ninth Circuit In The Development Of The Law Of Attempt To Monopolize, Daniel J. Gifford

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The attempt clause 1 of the Sherman Antitrust Act deals with unilateral behavior which produces or is likely to produce significant anticompetitive consequences. Justice Holmes, in his classic statement of the attempt offense in Swift & Co. v. United States, 2 identified the elements of the offense as the defendant's intent to monopolize and the dangerous probability that the defendant would succeed. In the classic model of the offense, the defendant's intent resolves the ambiguity of the defendant's present behavior by showing that it is instrumental to the forbidden goal of monopolization.