Law Commons^™

Mccormick On Evidence And The Concept Of Hearsay: A Critical Analysis Followed By Suggestions To Law Teachers, Roger C. Park

Faculty Scholarship

No abstract provided.

Professional Responsibility Issues In International Law Practice , Roger J. Goebel

Faculty Scholarship

The present Code of Professional Responsibility (CPR) is essentially geared to guide the conduct of the lawyer as advocate or litigator. It is certainly of assistance to the American international lawyer in establishing guidelines for his conduct, but only of limited assistance since the international lawyer usually serves more as an advisor to, or negotiator for, his clients. In contrast, the recent ABA draft Model Rules of Professional Conduct (MRPC) provide a more useful basis for examination of the international lawyer's ethical responsibilities, as they do in many respects for the corporate or commercial lawyer who assists domestic clients in …

Amniocentesis And The Apotheosis Of Human Quality Control, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

Restitution In The Restatement (Second) Of Contracts, Joseph Perillo

Faculty Scholarship

No abstract provided.

Court Appointment Of Attorneys In Civil Cases: The Constitutionality Of Uncompensated Legal Assistance Note, Bruce A. Green

Faculty Scholarship

Whether an individual becomes a party to judicial proceeding involuntarily, as a criminal or civil defendant, or voluntarily, as a civil plaintiff seeking redress of an injury, the assistance of counsel will increase his chances for a favorable disposition. When an impecunious litigant is unable to retain counsel, the question arises of who must bear the burden created by the complexity of adjudication. Although the Supreme Court has been sympathetic to the need for counsel in criminal cases, an indigent litigant in civil cases often will be denied legal assistance, and therefore will bear the burden himself In other instances, …

French Codification Of A Legal Framework For International Commercial Arbitration, W. Laurence Craig, William W. Park, Jan Paulsson

Faculty Scholarship

Resolution of a dispute arising under an international commercial contract frequently has been plagued with uncertainty regarding applicable substantive and procedural law. These problems are not necessarily solved by the presence of an arbitration clause in the contract. In the absence of a clearly defined arbitral system, the parties can not be certain of the rules regarding the arbitral procedure or the recognition and enforcement of arbitral awards. By enacting a decree that specifically applies to international commercial arbitration, France has recently taken a major step toward resolving the uncertainties surrounding the resolution of international commercial disputes. The authors analyze …

Principles Of Relational Contracts, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

Recent scholarship has demonstrated that a significant proportion of private contracts do not easily fit the presuppositions of classical legal analysis. One reason for this is the pivotal role played in conventional legal theory by the concept of the complete contingent contract. Parties in a bargaining situation are presumed able, at minimal cost, to allocate explicitly the risks that future contingencies may cause one or the other to regret having entered into an executory agreement. Under these conditions, the role of legal regulation can be defined quite precisely. Once the underlying rules policing the bargaining process have been specified, contract …

Article Nine's Treatment Of Commingled Cash Proceeds In Non-Insolvency Cases, William H. Henning

Faculty Scholarship

One of the most difficult questions arising under Article 9 of the Uniform Commercial Code is the extent to which a secured party's interest in collateral continues to be enforceable against the proceeds generated upon disposition of that collateral. Much of the difficulty surrounding this issue springs from the fact that proceeds occupy a position at the nexus of two competing Code policies. On the one hand, Article 9 validates the floating lien and minimizes the extent to which a secured party must continue to "police" a transaction once his interest has been perfected. On the other hand, it is …

Busfare Increases And Administrative Irregularities, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Government Statistics: The Case For Independant Regulation—A New Legislative Proposal, Erwin Chemerinsky, David Zarefsky, Alan S. Loewinsohn

Faculty Scholarship

No abstract provided.

The Tax Exempt Status Of Communitarian Religious Organizations: An Unnecessary Controversy?, Lawrence A. Zelenak, Meade Emory

Faculty Scholarship

No abstract provided.

The Status Of Statutes Of Limitations And Statutes Of Repose In Product Liability Actions: Present And Future, Francis Mcgovern

Faculty Scholarship

No abstract provided.

Realism And Functionalism In The Legal Thought Of Felix S. Cohen, Martin P. Golding

Faculty Scholarship

No abstract provided.

The Validity Of Utility Conservation Programs According To Generally Accepted Regulatory Principles, Christopher H. Schroeder, Alan Miller

Faculty Scholarship

There is a tremendous potential for making energy supplies available for neto uses through improved efficiency in energy use. While higher energy prices will act to stimulate investment in conservation measures, market imperfections are likely to result in lower levels of spending on conservation than would be optimal. While both utilities and customers may benefit from increased development of the conservation potential, many utilities have not proceeded aggressively in promoting conservation. In part, this hesitation stems from uncertanty over the extent to which energy conservation programs fit traditional notions of the utility's role and our conceptions about the goals and …

Expenses: The Roadblock To Justice, Maurice Rosenberg, Peter F. Rient, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

The Emerging Threshold Approach To State Action Determinations: Trying To Make Sense Of Flagg Brothers, Inc. V. Brooks, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

Fraud And Corruption Against The Government: A Proposed Statute To Establish A Taxpayer Remedy, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Conjugal Violence: The Law Of Force And The Force Of Law , Maria Marcus

Faculty Scholarship

The Article concludes that neither the impartial mission of the rule of law nor the neatly tooled goal of individual justice has been served by the governmental response to conjugal violence, and suggests the elements from which a valid approach may be constructed.

Competition In Health Services: Overview, Issues And Answers, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

The Regime Of Diplomacy And The Tehran Hostages, Kazimierz Grzybowski

Faculty Scholarship

No abstract provided.

The Perils Of Writing An Intellectual History Of Torts (Review Essay), George C. Christie

Faculty Scholarship

Reviewing, G. Edward White, Tort Law in America: An Intellectual History (1980)

A Comment: The Antitrust Challenge To Professionalism, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

Physicians And Lawyers: Science, Art, And Conflict, Robert L. Schwartz, Joan M. Gibson

Faculty Scholarship

The relations between physicians and lawyers have deteriorated rapidly over the past several decades, most particularly since the early 70s when the perception that a medical malpractice crisis existed in America became widespread. Some believe that the factors dividing the two professions . are linked (1) to professional jealousy, (2) to sometimes conflicting economic interests, or (3) to difficulties in communication, since both professions use many of the same words, or terms of art, but with different intended meanings. While the authors agree that these factors may have aggravated the problem, they believe that the conflict's real roots are in …

An Entrenched Bill Of Rights For The United Kingdom: The Constitutional Dilemma, Christian G. Fritz

Faculty Scholarship

In 1974 Sir Leslie Scarman, in delivering the twenty-second Hamlyn lecture, proposed a written Bill of Rights for the United Kingdom that would be entrenched' and hence binding on Parliament even without a written constitution. (Entrenchment is sometimes used to describe a process whereby an Act of Parliament incorporates a Bill of Rights but provides that any subsequent legislation will be deemed to be in compliance with that Bill unless it clearly manifests a contrary intention.) The controversy and constitutional commentary surrounding Scarman's proposal in the 1970s continues to have relevance for the nature of the British constitution. Historically and …

Tort Responsibility Of Mentally Disabled Persons, James W. Ellis

Faculty Scholarship

The standard of care to be applied in tort cases involving mentally disabled people has not been reconsidered in recent years. Traditional rationales for the "objective" standard are less persuasive in the context of current legal approaches to the rights of mentally ill and retarded persons. Analogies to children (especially the concept of "mental age") and to physically handicapped adults merit reexamination. The objective standard of care for mentally disabled defendants was an outgrowth of the ideology of confinement-an ideology that society has since abandoned. Adoption of a subjective standard would not right a vast number of grave injustices, nor …

State Taxation Of Natural Resource Extraction And The Commerce Clause: Federalism's Modern Frontier, Michael B. Browde, Charles T. Dumars

Faculty Scholarship

The formalistic delineation of the commerce clause in the pre-New Deal era gave way to the modern balancing approach largely because the earlier formalism did not adequately resolve the more difficult commerce clause questions created by the growing complexities of modern society. The irrelevance of the Heisler severance-precedes-commerce analysis to the modern problems that surround our national energy policy is a classic example of the failure of the old devices. Issues that were well settled on the legitimate-state-control side of the ledger in the 1920's have shifted to the national-interest side of the ledger today. As energy development assumes greater …

In Fond Appreciation, Michael I. Sovern

Faculty Scholarship

I write in a representative capacity – not for all the presidents of Columbia University, nor even for all the past deans of our great Law School; I presume rather to offer a few words of fond appreciation on behalf of the thousands of middle-aged lawyers who once sat at Willis Reese's feet. My class began the 1952-53 academic year and our legal education with Dean Young Berryman Smith as our Torts professor. A few years later, classes would begin to be sectioned, but in those primeval days, we were one big, happy group. Two hundred and forty strong (not …

"Twisting Slowly In The Wind": A Search For Constitutional Limits On Coercion Of The Criminal Defendant, John C. Coffee Jr.

Faculty Scholarship

In the corridor outside Courtroom Four, Foster Clark approached the prosecutor. "I was wondering," he said, "are we really going to have to try this case?"

"Well," the prosecutor said, "that depends. He's dead on and gone to heaven, if that's what you mean. He doesn't have a prayer."

"I was wondering if we could work something out," Clark said. "I haven't really had a chance to talk with him, but I was wondering."

"So talk to him," the prosecutor said. "Find out where he stands, and call me."

* * *

"Look," the prosecutor said, "you know I can't …

"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.

Faculty Scholarship

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?
—Edward, First Baron Thurlow 1731-1806

The Lord Chancellor of England quoted above was neither the first nor the last judge to experience frustration when faced with a convicted corporation. American sentencing judges are likely to face a similar dilemma with increasing frequency in the near future, for a number of signs indicate that corporate prosecutions will become increasingly commonplace. At first glance, the problem of corporate punishment seems perversely insoluble: moderate fines do not deter, …

From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.

Faculty Scholarship

Within the context of mail and wire fraud prosecutions, criminal liability for breach of fiduciary duties is being imposed with increasing frequency. Professor Coffee discusses the disturbing failure of the courts to require that the fiduciary's conduct have caused legally cognizable harm to the beneficiary. He concludes that an affirmative defense should be available to fiduciaries to show the lack of proximate cause between a breach and the injury. In addition, federal enforcement should occur only after state and private remedies have proven inadequate.