Law Commons^™

Sentencing Reform And Parole Release Guidelines, Albert W. Alschuler

Articles

Although parole release guidelines have achieved many of the advantages of determinate sentencing, they raise troublesome issues. Subject to important caveats, the author maintains that sentencing guidelines can better be administered by courts than by parole boards. He also maintains that current federal parole guidelines unfairly disregard plea bargained charge reductions, and that the construction of equitable guidelines requires detailed offense-by-offense and situation-by-situation studies that have not yet been undertaken.

Optimal Sentences For White-Collar Criminals, Richard A. Posner

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Those concerned by the growth of white-collar crime disagree over the choice of a fine or imprisonment as the more appropriate sentence. In this article, Professor Posner argues that a sufficiently large fine is an equally effective deterrent that is cheaper to administer and therefore socially preferable.

The Ethical And Political Basis Of The Efficiency Norm In Common Law Adjudication, Richard A. Posner

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No abstract provided.

Social Investing And The Law Of Trusts, Richard A. Posner, John H. Langbein

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No abstract provided.

Unanimity And Desegregation: Decisionmaking In The Supreme Court, 1948-1958, Dennis J. Hutchinson

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By a process that has been the subject of considerable speculation, the United States Supreme Court reached a unanimous decision in the 1954 cases of Brown v. Board of Education and Bolling v. Sharpe, declaring unconstitutional statutory segregation in public school systems in the states and in the District of Columbia. Using previously unpublished material, Professor Hutchinson traces the rise and fall of unanimity in the segregation cases of the 1950's. The article delineates the Court's internal decisionmaking process and analyzes the role of unanimity in influencing the response of both the Court and the nation to the escalating challenges …

Guardians Of The Constitution, Gerhard Casper

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No abstract provided.

Automobile No-Fault Plans: A Second Look At First Principles, Richard A. Epstein

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No abstract provided.

The Positive Economic Theory Of Tort Law, Richard A. Posner, William M. Landes

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No abstract provided.

Market Power In Antitrust Cases, Richard A. Posner, William M. Landes

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With many antitrust prohibitions, the existence of a violation depends upon whether the defendant possesses sufficient market power. In this Article, Professors Landes and Posner present an economic analysis of market power that provides the necessary foundation for application to particular cases and for formulation of antitrust policy. They use their approach to illuminate the perplexing issues of product and geographical market definition, the measurement of market power arising from mergers and within regulated industries, and the quantification of damages in monopolization and price-fixing cases. Finally, they argue that, despite the novelty of their formulation, it is compatible with the …

The Economics Of Passing On: A Reply To Harris And Sullivan, William M. Landes, Richard A. Posner

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No abstract provided.

Direct Federal Regulation Of Stationary Sources Under The Clean Air Act, David P. Currie

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No abstract provided.

The Weber Case: The Judicial Abrogation Of The Antidiscrimination Standard In Employment, Bernard D. Meltzer

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No abstract provided.

Foreword The American Jury, Hans Zeisel

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No abstract provided.

Administrative Rulemaking And Judicial Review: Some Conceptual Models, Daniel J. Gifford

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A number of observers presently believe that much federal rulemaking has become unduly complex, time-consuming, costly, and unwieldly,1 primarily because of the transformation of judicial review of rules promulgated after informal proce- dures into review on the administrative record. Former dean Carl Auerbach, for example, believes that this change in judi- cial review in the last decade has profoundly and adversely af- fected the rulemaking process on the administrative level.2 Auerbach suggests that requiring an agency to prepare a de- fense to all potential challengers of a proposed rule, regardless of the actual number or content of the challenges, imposes …

Goldberg's Forgotten Footnote: Is There A Due Process Right To A Hearing Prior To The Termination Of Welfare Benefits When The Only Issue Raised Is A Question Of Law?, Laura J. Cooper

Articles

The federal government, in two different contexts, is currently reexamining the specific procedural protections that should be afforded welfare recipients who seek to challenge decisions of welfare agencies about their benefits. The Carter Administration and Congress are reviewing welfare hearing procedures as part of their interest in a fundamental reform of welfare programs.' Simultaneously, the Department of Health and Human Services (formerly HEW)2 is considering revision of its regulations governing welfare hearings.3 Both reform efforts propose that welfare benefits be discontinued before a hearing decision is rendered for recipients who challenge the termination of their benefits on the ground that …

A Colleague's Tribute, James J. White

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This piece was published as a dedication to Dean Richard E. Speidel. In describing Dick Speidel's character and scholarship one is tempted to use the adjectives that are now a fixed part of the Decanal resignation ritual. Whatever their vices in office, retiring Deans are invariably "bright, insightful, generous, scholarly, worldly;" occasionally they are persons of "unbounded administrative skill," and even of "unlimited scholastic vision."

Federalism And Social Change, Terrance Sandalow

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A familiar passage in Professors Hart and Wechsler's casebook likens the relationship between federal and state law to that which exists between statutes and the common law. The underlying idea is that federal law rests upon a substructure of state law. "It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for [its] special purpose."' A similar relationship exists between state and federal judicial systems. State courts are courts of general jurisdiction, assumed to have authority to adjudicate controversies unless Congress has displaced them by conferring exclusive jurisdiction on federal courts. Federal …

The Need For Clear Structure In 'Plain Language' Legal Drafting, Layman E. Allen, C. Rudy Engholm

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Language is not simple. To pretend otherwise is to mislead. In practice the aspect that is handled most ineptly in written legal materials is the structure. The focus of this article is upon structure and how to improve it. At the outset, let one thing be absolutely clear. In seeking to achieve clarity of expression, those who have no more to recommend than short sentences, simple words, and readability formulas are offering a cracker in circumstances where a full gourmet feast is gleaming in the chef's eye for those with the wit but to ask for the menu. To practice …

The Estate Tax Marital Deduction, Harold Dubroff, Douglas A. Kahn

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The estate tax marital deduction, section 2056 of the Internal Revenue Code, was enacted in 1948, along with the split-income provisions of the income tax law and the marital deduction and split-gift provisions of the gift tax law. The purpose was to give married residents of common law states approximately the same federal tax advantages that were available to married residents of community property states. Ordinarily, upon the death of a married resident of a community property state, only one-half of the community property is taxed in the decedent's estate. Section 2056 achieves approximately the same result for married residents …

National Labor Policy: Reflections And Distortions Of Social Justice, Theodore J. St. Antoine

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The impulse behind much of American labor law is profoundly moral. The sufferings and indignities inflicted on working men, women, and even children as the industrial revolution enveloped the western world during the nineteenth and early twentieth centuries led many thoughtful observers to focus their attention on what was commonly called the "social question." Certain issues have been treated almost as if they posed questions of good and evil, when all they actually presented were problems of finding a proper balance of power between labor and management. This article shall develop these themes in several specific contexts.

Machiavelli And The Bar: Ethical Limitations On Lying In Negotiation, James J. White

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Upon the enactment of the Model Rules of Professional Conduct, published ethical norms will for the first time give explicit consideration to the lawyer's behavior in the process of negotiation. Rules 4.1, 4.2, and 4.3 deal with negotiation. Although the Canons, the interpretations of the Canons, and the Disciplinary Rules and Ethical Considerations gave tangential consideration to negotiating, 1 none of the Disciplinary Rules or Ethical Considerations explicitly considered negotiation apart from the process of litigation or counseling. The mere recognition of negotiation as a separate process worthy of unique rules is a large step. The purpose of this paper …

Insurance, Pensions And The Internal Revenue Code: An Analysis, Edward A. Zelinsky

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No abstract provided.

The Patentability Of Living Microorganisms: Diamond V. Chakrabarty, Daniel H. Foote

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Microbiologists have made great advances in modifying gene structures to create new forms of life. In Diamond v. Chakrabarty, the Supreme Court addressed for the first time the patentability of a living microorganism. In a 5-4 decision that has been condemned as heralding the advent of Aldous Huxley's Brave New World, the Court held that the living nature of a microorganism is no bar to patenting it.

High On The Seas: Drug Smuggling, The Fourth Amendment, And Warrantless Searches At Sea, Daniel H. Foote

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Today no statute prohibits the mere possession of marijuana or other controlled substances beyond the three-mile offshore territorial limit of the United States; but prosecutions relating to vessels carrying controlled substances outside the territorial waters may be based upon charges of conspiracy to import or distribute the substances. In attempting to halt the recent increase in smuggling of such contraband by sea, the United States Coast Guard and other law enforcement agencies have aggressively exercised their powers to stop and search vessels. Two parallel statutory provisions, 14 U.S.C. § 89(a) and 19 U.S.C. § 158,(a), give the Coast Guard and …

Criminal Procedure In Alaska, Jeff M. Feldman

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Two years ago this review published an article which reviewed search and seizure law in Alaska. Because the local barand bench seem to have found that article to be useful, it appeared worthwhile to put together a similar review of the remainder of Alaska's law of criminal procedure. Like its predecessor, this article will review and analyze the law of criminal procedure in Alaska, isolating those areas in which the Alaska Legislature or the Alaska Supreme Court has departed from the prevailing approach to procedure in criminal cases and predicting probable outcomes to procedural issues still unresolved in Alaska.

Does Rome Have A Lesson For Us?, Hugh D. Spitzer

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As the Roman Empire became more complex and centralized, so did its law and legal system. Is there a message here for us?

Benefits, Costs, And Risks: Oversight Of Health And Environmental Decisionmaking, William H. Rodgers, Jr.

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This article considers problems of "regulatory reform" in the context of environmental and health decisionmaking. Specifically, in Part I, this article defines cost-benefit analysis, explores its advantages and limitations, and assays cost-benefit practice in light of descriptive theoretical and practical demands of formal decisionmaking within administrative agencies.

The two remaining sections of this article focus on the question of how Congress and the courts can, do, and should structure environmental and health regulation. In Part II, the article explores legislative models for agency consideration of costs and benefits in promulgating regulations. It examines four alternative models, and identifies normative considerations …

The Decision To File Federal Criminal Charges: A Quantitative Study Of Prosecutorial Discretion, Richard Frase

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No abstract provided.

The Third United Nations Conference On The Law Of The Sea: The Eighth Session (1979), Bernard H. Oxman

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No abstract provided.

To Set The Record Straight: The Break-In, The Tapes, The Conspirators, The Pardon, Philip B. Kurland

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No abstract provided.