Law Commons^™

The Consumer's Emerging Right To Boycott: Naacp V. Claiborne Hardware And Its Implications For American Labor Law, Michael C. Harper

Faculty Scholarship

Hard cases do not always make bad law. Sometimes, when confronted with records that will yield neither to the direct application of established legal principles nor to factual manipulation, courts articulate, or at least suggest, a new principle which should and often does refine a body of old law. The Supreme Court's decision in NAACP v. Claiborne Hardware Co." should become a prominent and salutary example of such hard cases. Before Claiborne Hardware, the Court had indicated that legislatures, for rational economic policy reasons, could make peaceful consumer boycotts illegal.' Confronted with compelling facts in the Claiborne Hardware …

Timing Under A Unified Wealth Transfer Tax, Theodore S. Sims

Faculty Scholarship

The United States taxes gifts made while an individual is living more leniently than it taxes wealth transfers at death. Although in some measure this disparity has existed since the enactment of the modern estate and gift taxes in 1916 and 1932, it was significantly narrowed by the Tax Reform Act of 1976 (the 1976 Act). That statute replaced the separate gift and estate taxes with a regime that taxes the cumulative total of an individual's lifetime taxable gifts and his taxable estate at death, under a single (or "unified") graduated table of rates. Nevertheless, there remains a signficant difference …

Biological Monitoring: The Employer's Dilemma, Frances H. Miller

Faculty Scholarship

The industrial workplace contains many potential health hazards that not only can cause great harm to workers, but also can destroy the employers’ economic stability. Often these hazards are documented and dealt with, but frequently they are unknown. When health-conscious employers monitor the physical well-being of their employees in an effort to avoid the terrible personal and economic costs these hazards can produce, they may be supplying their employees with the documentation necessary to recover financially for their industrial illnesses.

This Article analyzes this dilemma confronting employers. It describes the many factors employers must consider when deciding whether to institute …

Competence To Refuse Medical Treatment: Autonomy Vs. Paternalism, George J. Annas, Joan E. Densberger

Faculty Scholarship

The right to refuse medical treatment is universally recognized as a fundamental principle of liberty. Nonetheless, the right is often infringed upon by paternalistic physicians who either use too narrow a definition of competence, or misunderstand or ignore the patient's liberty interest in freedom from coerced medical interventions. A careful consideration of competence in the medical care setting leads to a conclusion that it can best be assessed by determining the patient's ability to understand the information necessary to provide informed consent to treatment. If a patient has this capacity, both his consent and refusal must be honored. Placing competence …

Corporate Directors Duty Of Care: The American Law Institute Project On Corporate Governance, Tamar Frankel

Faculty Scholarship

The American Law Institute's Principles of Corporate Governance and Structure: Restatement and Recommendations (ALI Project) has triggered a sharp debate on corporate directors' duty of care. The history of the ALI Project and the events that led to its establishment have received different interpretations. All agree, however, that the Project was prompted by a movement to internalize control over the managements of large American corporations through independent, trustworthy boards of directors to which courts will defer; a movement towards increased corporate self-governance The debate over the ALl Project's statement of the duty of care is important because the results of …

Re-Thinking Parenthood As An Exclusive Status: The Need For Legal Alternatives When The Premise Of The Nuclear Family Has Failed, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Albert J. Rosenthal In Grateful Appreciation, Michael I. Sovern

Faculty Scholarship

What a joy it is to work with Al Rosenthal! And how fortunate we are that our remarkable colleague will continue to grace the faculty to which he is devoted.

It is customary upon assuming a deanship to say nice things about your predecessor, and Al Rosenthal was no exception five years ago. But I mean far more than to return a compliment when I note how splendidly my successor as Dean, with a gently guiding hand, has enhanced the intellectual life of our law school, strengthening both faculty and student body and augmenting the support for their work. He …

The Free Rider Problem, Imperfect Pricing, And The Economics Of Retailing Services, Victor P. Goldberg

Faculty Scholarship

In GTE Sylvania, the Supreme Court acknowledged what a group of law and economics scholars had been arguing for the previous two decades: vertical restrictions that limit intrabrand competition can have a desirable effect on interbrand competition. The Court approvingly accepted the argument that the free rider problem might justify a manufacturer's use of vertical restrictions. The argument, in its simplest form, is that if a retailer provides services such as advice and demonstrations to consumers, a consumer could make use of the service and then buy the product from a "no- frills" retailer. If the manufacturer cannot control the …

Antitrust Standing, Antitrust Injury, And The Per Se Standard, Daniel C. Richman

Faculty Scholarship

In 1970, a district court observed: "We must confess at the outset that we find antitrust standing cases more than a little confusing and certainly beyond our powers of reconciliation." The court could hardly have been faulted, for the confusion it noted has been endemic to these cases since the creation of the treble-damages action. Courts have never read section 4 of the Clayton Act literally to allow treble damages to every plaintiff able to attribute an economic loss to an antitrust violation. This unwillingness to recognize every such injury is fully consistent with the essential principle of antitrust law …

The Federal Election Campaign Act And The 1980 Election, Richard Briffault

Faculty Scholarship

During the 1970's Congress and the Supreme Court paid the most sustained attention in American history to the financing of federal election campaigns. Congress passed a succession of measures, known collectively as the Federal Election Campaign Act ("FECA" or the "Act"), closely regulating the activities of candidates, parties, private organizations, and individuals in raising and spending campaign money.

Prior to FECA, election finance was largely an extension of the private marketplace. Campaigns were funded through private, voluntary contributions to parties and candidates, with donors contributing to the extent of their interest and wealth, and private economic inequalities were replicated in …

Regulating The Market For Corporate Control: A Critical Assessment Of The Tender Offer's Role In Corporate Governance, John C. Coffee Jr.

Faculty Scholarship

Better answers often await better questions. In the wake of a recent series of provocative articles dealing with contested tender offers, several questions have been vigorously debated:

(1) Should management of the target company be allowed to resist a hostile tender offer in order to remain an independent company? Which, if any, of the various "shark repellent" measures by which a potential target can make itself unattractive to a bidder are justified?;

(2) If defensive tactics were generally forbidden, should the target company's management still be permitted to encourage competing bids thereby creating an auction?; and

(3) Do hostile takeovers …

Rethinking Joint Custody, Elizabeth S. Scott, Andre Derdeyn

Faculty Scholarship

A small revolution has begun in child custody law, and as yet its dimensions and ultimate direction are uncertain. Joint custody, the sharing of legal authority by divorced or separated parents over their children, is gaining acceptance as the best arrangement for most children when their parents divorce. The legal system is embracing this arrangement with remarkable enthusiasm, although until recently it was viewed as being of questionable legality and antithetical to the best interest of the child. Today, thirty states have joint custody laws, most of which have been enacted since 1980. A growing number of the more recent …

Civil Procedure And Alternative Dispute Resolution, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Of Law And The River, Paul D. Carrington

Faculty Scholarship

No abstract provided.

From The Editor: On Professional Literature, Richard A. Danner

Faculty Scholarship

No abstract provided.

From The Editor: Questions And Answers, Richard A. Danner

Faculty Scholarship

No abstract provided.

The Original Understanding Of Original Intent, H. Jefferson Powell

Faculty Scholarship

When interpreting the Constitution, judges and commentators often invoke the "original intent of the framers" in support of their positions. Many claim that such an interpretative strategy is not only currently desireable, but indeed was the expectation of the Constitution's drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected the future interpreters to seek the meaning of the document in the framers' intent. He first examines the various cultural traditions that influenced legal interpretations at the time of the Constitution's birth. Turning to the history of …

Juror Prejudice: An Empirical Study Of A Challenge For Cause, Neil Vidmar, Julius Melnitzer

Faculty Scholarship

The authors empirically examine the challenge for cause process in the context of a murder trial in a rural region in southern Ontario. A survey was under-taken to assess prejudice and is compared to prejudice found in potential jurors. The study also compares the verdicts on each potential juror screened in the challenge for cause process, as rendered by the triers, defence counsel and a professional psychologist observing the proceedure. The results of these studies are presented within.

First Amendment Limitations On Recovery From The Press—An Extended Comment On “The Anderson Solution”, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The Price Of Asking The Wrong Question: An Essay On Constitutional Scholarship And Judicial Review, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Book Review, Paul D. Carrington

Faculty Scholarship

Reviewing R. Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983).

Administrative Institutions And The Administrative Process, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

The Right Of Property And The Law Of Theft, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Book Review, Michael E. Tigar

Faculty Scholarship

No abstract provided.

U.S. Software Protection: Problems Of Trade Secret Estoppel Under International And Brazilian Technology Transfer Regimes Note, Joel R. Reidenberg

Faculty Scholarship

This note describes the fundamental aspects of software protection and applies the requisites of U.S. trade secret protection to software. After explaining how the UNCTAD and Brazilian transfer of technology regimes apply to software licensing arrangements, this note argues that software distribution under these regimes estops U.S. trade secret protection by defeating the requisites of secrecy and competitive advantage. Specifically, the effects of the UNCTAD Draft International Code of Conduct on the Transfer of Technology (UNCTAD Code) and the Brazilian technology transfer regulations are analyzed to demonstrate the difficulties posed by legal regimes being considered and already in force in …

Role Of A National Legal Information Center In The Access To Justice, The, Robert J. Nissenbaum

Faculty Scholarship

The author reviews the nature of disputes and mechanisms for dispute

The Louis Stein Institute For Professional Responsibility And Leadership, Joseph Perillo

Faculty Scholarship

No abstract provided.

Serving Two Masters: Commercial Hues And Tax Exempt Organizations, Lawrence A. Zelenak

Faculty Scholarship

No abstract provided.

Rethinking Exclusion–The Rights Of Cuban Refugees Facing Indefinite Detention In The United States, Richard A. Boswell

Faculty Scholarship

No abstract provided.