Law Commons^™

The "Stationarity" Of Shadow Prices Of Factors In Project Evaluation, With And Without Distortions, Jagdish N. Bhagwati, Henry Wan Jr.

Faculty Scholarship

Until recently, the literature on cost-benefit analysis for projects has been largely within the domain of research on "public monopoly," literature currently reviewed by Jacques Lesourne, (ch. 3), and the work of public finance theorists as typified in the celebrated practical work of Ian Little and James Mirrlees in their Manual, and in the recent theoretical contribution of Peter Diamond and Mirrlees. International trade theorists have, however, turned now to the analysis of these problems, starting with the early work of Vijay Joshi and Deepak Lai, then that of W. M. Corden, and most recently culminating in the contributions of …

The Unresolved Problems Of Reverse Discrimination, Kent Greenawalt

Faculty Scholarship

The current widespread use of remedial affirmative action programs makes the legitimacy of reverse discrimination a pragmatic social concern. That alone, however, would not explain the intense interest generated by Regents of the University of California v. Bakke. The question posed in the case compels our attention because it forces a choice between two values that occupy a high place in the liberal conception of justice and claim substantial support in the equal protection clause. On the one hand, justice requires that groups that have previously suffered gross discrimination be given truly equal opportunity in American life; on the other, …

Enforcing Promises: An Examination Of The Basis Of Contract, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

The obligation to keep promises is a commonly acknowledged moral duty. Yet not all promises – however solemnly vowed – are enforceable at law. Why are some promises legally binding and others not? Orthodox doctrinal categories provide only modest assistance in answering this persistent question. Conventional analysis, for example, has distinguished promises made in exchange for a return promise or performance from nonreciprocal promises. Indeed, common law "bargain theory" is classically simple: bargained-for promises are presumptively enforceable; nonreciprocal promises are presumptively unenforceable. But this disarmingly simple theory has never mirrored reality. Contract law has ventured far beyond such narrow limitations, …

The Law And Economics Of Vertical Restrictions: A Relational Perspective, Victor P. Goldberg

Faculty Scholarship

Vertical restrictions between franchisors and their dealers have long been a thorny problem in antitrust law. Richard Posner's characterization of the case law as a "fiasco" and a "doctrinal shambles" is echoed by many other commentators. Perhaps partly because of the intellectual confusion in the area, the Supreme Court recently made an apparently sharp change in direction. In Continental T.V., Inc. v. GTE Sylvania Inc. the Court reversed the decade-old Schwinn per se doctrine, holding that at least some vertical restrictions deserve a rule of reason test. Whether this decision will prove a more durable precedent than Schwinn remains …

Measuring Sellers' Damages: The Lost-Profits Puzzle, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

A buyer repudiates a fixed-price contract to purchase goods, and the seller sues for damages. How should a court measure the seller's loss? The answer seems simple: The seller should be awarded damages sufficient to place it in the same economic position it would have enjoyed had the buyer performed the contract. But the seductive conceptual simplicity of the compensation principle disguises substantial practical problems in measuring seller's damages.

Contract law has traditionally minimized measurement difficulties by basing damages in most cases on the difference between the contract price and market value of the repudiated goods. The common law courts …

Professor Jones And The Constitution, Henry Paul Monaghan

Faculty Scholarship

Professor Harry Jones's elegant and stimulating Waterman lectures begin on a salutary note. Professor Jones rightly reminds us that, first and foremost, a constitution is not exclusively or primarily a limitation on the exercise of political power, but rather is a charter for its exercise. Accordingly, to view the Constitution as "all brakes and no engine" suggests a serious and fundamental myopia, albeit an understandable one given the popular preoccupation with the Supreme Court's role in vindicating guarantees of civil liberty. But that preoccupation, Professor Jones notes, does more than distort the meaning of the Constitution; it ignores an historically …

A Chicken In Every Pot, And Forty-One Channels For Every Television Set, William K.S. Wang

Faculty Scholarship

No abstract provided.

Torts 1978 Survey Of New York Law: Part Five: Miscellaneous, Michael M. Martin

Faculty Scholarship

The principal torts decisions this Survey year, especially in the products liability area, seemed to leave as many questions unanswered as they resolved. The Court of Appeals held that a noncontracting user's claim for injuries from a defective product sounded in tort for limitations purposes, but the Court did not decide what limitation period would be applicable if a statutory breach of warranty claim were also asserted. The contributory negligence defense to a strict products liability claim was upheld by a reference to the appellate division's opinion in a second-collision case. The analytically suspect "sales"-"service" distinction was reaffirmed in an …

Introduction To Cleary's Presuming And Pleading: An Essay On Juristic Immaturity, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Law Books And Legal Publishing In America, 1760-1840, Jenni Parrish

Faculty Scholarship

No abstract provided.

Economic Sanctions Against South Africa?–Lessons From Rhodesia, Joel R. Paul

Faculty Scholarship

No abstract provided.

Letter To Hon. John H. Shenefield, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Women In Law School Teaching: Problems And Progress, D. Kelly Weisberg

Faculty Scholarship

No abstract provided.

Taking Supreme Court Opinions Seriously, Henry Paul Monaghan

Faculty Scholarship

Taking Supreme Court opinions seriously emerged as a topic of discussion at a lunch I attended last year with several Supreme Court law clerks. Somehow we came round to a particular three-judge district court case which I confidently opined was "certain" to be reversed on the basis of principles announced in prior opinions. The clerks were models of politeness and circumspection; never once did they even intimate that the judgment would (by divided vote) be affirmed. But shortly after I had announced my views of that case, one of the clerks began to prod me, asking whether I simply took …

The Right To Life, George P. Fletcher

Faculty Scholarship

In the theory of rights we repeatedly encounter the problem of reconciling someone's having a right with his properly suffering damage to the interest protected by the right. In the case of right to life, we have to assess numerous cases in which individuals are killed or allowed to die, and we wish nonetheless to affirm their right to life. These cases include killing an aggressor in self-defense, accidental homicide, terminating life-sustaining therapy, and capital punishment.

My program in this Article is to provide an account of how it is that those with a right to life may nonetheless be …

Implementing A Progressive Consumption Tax, Michael J. Graetz

Faculty Scholarship

Much scholarly debate has been devoted to the theoretical merits of using an individual's consumption expenditures as the basis for measuring ability to pay tax. In this Article, Professor Graetz examines the practical problems of implementing and administering a progressive consumption tax as an alternative to the income tax. He concludes that although a consumption tax is feasible, practical implementation difficulties, together with the political unlikelihood of enacting a tax which is both administratively workable and retains the alleged theoretical advantages of a consumption-based tax, argue against its adoption.

‘Oath-Functions’ And The ‘Oath Process’ In The Civil And Criminal Law Of The Ancient Near East, Donald Magnetti

Faculty Scholarship

No abstract provided.

Should Intolerable Prison Conditions Generate A Justification Or An Excuse For Escape?, George P. Fletcher

Faculty Scholarship

In the last five years, appellate courts have responded sympathetically to the claims of prisoners who have escaped to avoid the threat of physical violence and homosexual rape. Lovercamp began the trend in 1974. Today the reports are replete with reversals directing trial courts to hear evidence bearing on the conditions that prompted the escape.

The courts have moved so quickly into this new field that they have had little chance to refine the underlying rationale for admitting the evidence. Appellate opinions, as well as several commentators, have sought to squeeze the new issue into one of three received doctrinal …

Contractual Agreements To Arbitrate Disputes: Waiver Of The Right To Compel Arbitration, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Bakke As Precedent: Does Mr. Justice Powell Have A Theory, Vincent A. Blasi

Faculty Scholarship

What does it all mean? The Supreme Court's decision in Regents of the University of California v. Bakke invites assessment at many levels. Was it really a "Solomonic compromise" worthy of our constitutional tradition, as some prominent scholars have suggested? Or does the decision represent, as I believe it does, a disturbing failure by the Court to discharge its responsibility to give coherent, practical meaning to our most important constitutional ideals? Does the uncharacteristically opaque and simplistic opinion of Justice Stevens mask deep divisions and ambivalences among the four justices who subscribed to it? Can there be any validity to …

Insider Transactions Under The 1940 Act, Tamar Frankel

Faculty Scholarship

No abstract provided.

Special Report On Endangered Species And New Life Forms: Conversation With A Cockroach, George J. Annas

Faculty Scholarship

On June 15, 1978, the United States Supreme Court ruled that the Endangered Species Act of 1973 required the enjoining of the operation of a virtually completed dam, the Tellico Dam in Tennessee, because of a determination by the Secretary of the Interior that its operation would eradicate the snail darter, an endangered species.

Governmental Regulation Of The Press: A Study Of Israel's Press Ordinance - Part Ii, Pnina Lahav

Faculty Scholarship

In the beginning, use of the Press Ordinance (hereafter Pr. Ord.) was limited, but as British political control deteriorated it became more extensive and even ruthless. In 1937, the Peel Report complained that the Pr. Ord. was not tough enough and recommended stricter measures.³ At about the same time, the Mandatory Government itself reached the conclusion that the Pr. Ord. was insufficient and issued a series of Defence (Emergency) Regulations which suspended the entire range of civil liberties-including freedom of expression. These Defence (Emergency) Regulations which related to the press replaced in part and fortified in part the Pr. …

Securities Commentary, Roberta S. Karmel, John P. Ketels

Faculty Scholarship

No abstract provided.

Where Are The Health Lawyers When We Need Them, George J. Annas

Faculty Scholarship

A momentous event in the field of health law occurred in April of 1978: the first national meeting of teachers of health law was held at Boston University. Of sixty individuals invited, almost all of whom teach health law as a full-time profession in various graduate schools, forty-five participated in the two-day workshop. While that response alone may have revealed the answer, the first topic on the agenda was: "Is health law a discipline?"

Rebutting Presumptions: Order Out Of Chaos, Neil S. Hecht, William M. Pinzler

Faculty Scholarship

No abstract provided.

Carryover Basis: An Observation, An Irony, And A Proposal, Alan L. Feld

Faculty Scholarship

Alan L. Feld is a Boston University Law School professor and visiting professor at the University of Pennsylvania Law School. In this article Feld describes the changes in the treatment of capital gains transferred at death that were enacted in the Tax Reform Act of 1976. Feld notes that tax reformers would have preferred to tax capital gains at death but accepted the carryover basis provision as a second-best solution.

He reports that in the case of the very largest estates, the combined, effect of carryover basis and the lower estate tax rates results at most in a total estate …

Representation Of Women Who Defend Themselves In Response To Physical Or Sexual Assault Arguedas, Elizabeth M. Schneider, Susan B. Jordan, Cristina C. Arguedas

Faculty Scholarship

No abstract provided.

Judges At The Bedside: The Case Of Joseph Saikewicz, George J. Annas

Faculty Scholarship

In what may prove to be the most controversial medicolegal decision of the year, the Massachusetts Supreme Judicial Court has ruled that, in certain cases, courts are the proper forum in which life-sustaining medical decisions should be made.1 The controversy goes deep. It involves questions of who should make life-prolonging decisions, in what forum, and on what criteria. Until the last few years, these questions arose almost exclusively in the context of Jehovah's Witnesses cases - cases in which life-saving blood transfusions were being refused for religious reasons. But with society's increasing consciousness about the way people die in hospitals, …

Governmental Regulation Of The Press: A Study Of Israel's Press Ordinance - Part I, Pnina Lahav

Faculty Scholarship

This article is part of a broader effort to analyse the relationship between the press and the legal system in Israel. Being only a segment of a larger project, it is devoted in its entirely to one component of Israel's press law: the Press Ordinance of 1933 (hereafter Pr. Ord.). Although antiquated and considered by certain circles as merely a "dead letter", the Pr. Ord. still forms the backbone of Israel's press law, since it regulates so many aspects of the press. Beyond its relevance as positive law, the Pr. Ord. is of interest for a number of reasons. Having …