Law Commons^™

Getting Serious About Legal Ethics, Thomas L. Shaffer

Journal Articles

This essay is a slightly reworked version of the introduction lo the author's book American Legal Ethics (1985). Copyright 1985 by Matthew Bender & Co. , Inc. ; reprinted with permission. Portions of this essay originally appeared as an article in The University of Baltimore Law Forum, Fall, 1983, p. 6, and are used here with the permission of that journal.

The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers

Journal Articles

The three books reviewed in this essay are recent contributions to the growing literature of constitutional theory (Michael J. Perry, The Constitution, the Courts, and Human Rights (New Ha- ven: Yale University Press, 1982); Sotirios A. Barber, On What the Constitution Means (Baltimore and London: The Johns Hopkins University Press, 1984); and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984). They explore important questions about the role of the Supreme Court and the meaning of the Constitution.

Between The Harvard Founders And The American Legal Realists: The Professionalization Of The American Law Professor, John Henry Schlegel

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No abstract provided.

Privatizing Regulatory Enforcement: A Preliminary Assessment Of Citizen Suits Under Federal Environmental Laws, Barry Boyer, Errol Meidinger

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This article provides a preliminary assessment of the potential effects of the privatization of regulatory enforcement and speculates on what such a realignment might portend for the regulatory process. Based primarily on an indepth review of the first wave of citizen suits brought under the federal Clean Water and Clean Air Acts, it identifies four key problems that can undermine the citizen suit as a device for regulatory enforcement: (1) Citizen suits must surmount a series of doctrinal barriers that could make it difficult or impossible to mount an effective private enforcement campaign. Courts have generally been able to control …

Obscenities In The Workplace: A Comment On Foul And Fair Expression And Status Relationships, James B. Atleson

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No abstract provided.

The Implicit Assumptions Of Labor Law Scholarship—Making Sense Of The Last Fifty Secondary Boycott Decisions, Or How I Spent My Summer Vacations, James B. Atleson

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No abstract provided.

The Circle Of Boys Market: A Comment On Judicial Inventiveness, James B. Atleson

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No abstract provided.

Constitutional Law - Moore V. U.S. House Of Representatives: A Possible Expansion Of Congressmen's Standing To Sue, David T. Link, Jeffrey L. Elverman, Thomas E. Lange

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In Moore v. U.S. House of Representatives,I the United States Court of Appeals for the District of Columbia Circuit addressed the question of whether individual congressmen have standing to sue the Congress. In Moore, members of the House of Representatives sought declaratory relief to invalidate the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA).2 The congressmen contended that TEFRA originated in the Senate in violation of the origination clause of the United States Constitution, 3 which requires that bills for raising revenue originate in the House of Representatives. Although the District of Columbia Circuit ultimately denied relief on the …

Gaming, Lotteries, And Wagering: The Pre-Revolutionary Roots Of The Law Of Gambling, G. Robert Blakey

Journal Articles

Over the last several decades, there has been an increasing trend to move away from general prohibition against gambling and to move towards legalizing various forms of gambling. This Article traces the pre-revolutionary roots concerning the law of gambling and breaks the discussion into three types: gaming, lotteries, and wagering. In particular, the discussion focuses on the law and practice of the English prior to 1776 and the law and practice of the Early Colonial Period from 1929-1776. The Author proposes that an understanding of the past is needed in order to reform the law of gambling without succumbing to …

Some Observations On The Interpretation Of The Internal Revenue Code, Alan Gunn

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According to the author, a minor problem in partnership taxation provides a useful illustration of the problem of following the language of the Internal Revenue Code slavishly, without regard to context and history, even if a literal reading leads to absurd results.

On "The Critical Legal Studies Movement", John M. Finnis

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"The present study critically examines the account of legal thought developed in Roberto Unger's very long article, ""The Critical Legal Studies Movement"" (1983), and tests it against Unger's own account of certain ""exemplary"" difficulties in the Anglo-American law of Contract. These scrutinies reveal that Unger's account fundamentally misunderstands the ways of legal thought, and disguises its misunderstanding behind equivocations on ""(in)determinate"" and ""(un)justified."""

Slippered Feet Aboard The African Queen, Thomas L. Shaffer

Journal Articles

Milner Ball, a professor, has characterized property ownership as “the apparatus of bulwark law.” This Article argues that that characterization was premature. The Author suggests that the bulwark-like difficulties in property law are less the essence of ownership than a perversion of ownership.

On 'Positivism' And 'Legal Rational Authority', John M. Finnis

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This Article critiques Anthony Kronman’s book Max Weber, which provides an interpretation of Weber’s social theory of law concerning positivism and legal rational authority. In particular, the three premises of Kronman’s thesis regarding social theory are considered and their weaknesses are explained. Through this critique, the Author argues that no good reason has been presented to accept that Weber’s positivist theory is of value.

For Reconciliation, Andrew W. Mcthenia, Thomas L. Shaffer

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The Alternative Dispute Resolution (“ADR”) movement has garnished much debate with scholars arguing on both sides—for or against—its further implementation into our adversarial system. This Article critiques the arguments against the movement focusing on Professor Owen Fiss’ work. From a theological reconciliation point of view, the Authors argue in favor of its further implementation because the ADR system promotes justice, community values, and the reconciliation of problems rather than resolution.

Introduction And Dedication; Mr. Justice Black (1886-1971), A Centennial Reflection, Paul R. Baier

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No abstract provided.

Justice Clark, The Voice Of The Past, And The Exclusionary Rule, Paul R. Baier

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No abstract provided.

Constitutional Law; I. Equal Protection, Paul R. Baier

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No abstract provided.

Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau

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With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a …

A Comparison Of The Merger And Acquisition Provisions Of Present Law With The Provisions In The Senate Finance Committee's Draft Bill, Samuel C. Thompson Jr.

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No abstract provided.

On Being Pleasant: Ethics In Estate Planning, Thomas L. Shaffer

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The play “Harvey” teaches a valuable lesson on legal ethics through the character Elwood. Elwood teaches how being pleasant does more for a person than being smart. Legal ethics in estate planning is examined through three points of view: the reality of professional life in estate planning, the reality of client life in estate planning, and the reality of life in families that are affected by estate planning. In discussing each point of view, the Author uses the actions of Elwood to demonstrate and argue that professional ethics is not just a system for staying out of trouble, but is …

A Word For The Common Good, Thomas L. Shaffer

Journal Articles

There is an inherent value in relationships amongst people through conversation. This response to Robert A. Burt's article argues that the value in having such dialogue, despite differences among us, stems not solely from the desire for equality; but rather stems from a deeper notion of common good such as community, morality, or something else. (See Robert A. Burt, What Was Wrong with Dred Scott, What's Right about Brown Dread Scott and Brown v. Board of Education: A Frances Lewis Law Center Colloquium, 42 Washington & Lee Law Review 1 (1985).

Application Of The Antitrust Laws To The Activities Of Insurance Companies: Heavier Risks, Expanded Coverage, And Greater Liability, Joseph Bauer, Earl W. Kintner, Michael J. Allen

Journal Articles

Since 1945 Congress has exempted certain activities of insurance companies from federal antitrust scrutiny. This exemption, provided by the McCarran-Ferguson Act, is not unqualified; it only applies to insurance company activities that constitute the "business of insurance" and that already are regulated under state law. Moreover, the exemption does not apply to activities that involve boycotts, coercion, or intimidation. The purpose of this exemption was to preserve the long tradition of state regulation of insurance, while providing federal remedies for coercive anticompetitive activities. The authors examine recent Supreme Court interpretations of the Act in light of this legislative policy and …

Miller V. Commissioner: Deductibility Of Casualty Losses After Voluntary Election Not To File An Insurance Claim, Stephen J. Dunn, Robert H. Kurnick, Matthew J. Barrett

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Taxpayers who suffer casualty losses may decide, for a variety of reasons, not to file an insurance claim for recovery of those losses. Section 165 of the Internal Revenue Code of 1954 allows a deduction for “any loss sustained during the taxable year and not compensated for by insurance or otherwise.”' Consequently, the question arises whether a taxpayer may claim a casualty loss deduction even though the taxpayer did not seek insurance reimbursement for the loss. In Miller v. Commissioner, the United States Court of Appeals for the Sixth Circuit, in a 6-5 en banc decision, expressly overruled its previous …

Reflections On Labor, Power, And Society, James B. Atleson

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No abstract provided.

Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers

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In the mid-1970s the high courts of several western democracies handed down constitutional decisions concerning the legal regulation of abortion. All of the courts sustained their abortion statutes except the United States and West Germany, which moved in opposite directions. The US Supreme Court voided the conservative abortion statutes of various states while West Germany's highest court nullified an abortion statute that took a liberal stance on abortion. The extended opinions of the American and German courts and their contrasting grounds for decision make them fitting candidates for a comparative analysis of abortion jurisprudence. The abortion issue illustrates the tension …

"Contort": Tortious Breach Of The Implied Covenant Of Good Faith And Fair Dealing In Noninsurance Commercial Contracts - Its Existence And Desirability, Matthew J. Barrett

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Every contract contains an implied covenant of good faith and fair dealing which prohibits any contracting party from injuring another party's right to receive the benefits of the agreement. Breach of this implied covenant creates a cause of action in contract. Beginning twenty-five years ago, some courts also recognized a cause of action in tort for breach of this implied covenant in insurance contracts.

In recent years, the California courts, the leaders in the development of “‘contort,”’ have repeatedly faced the issue whether courts should expand its application beyond the insurance context. Resolution of the issue is important because tort …

Corrections: A Tale Of Two Bills, Tex Dutile

Journal Articles

This response critiques two bills regarding federal sentencing reform recently debated in Congress, the Sentencing Act of 1983 and the Sentencing Improvement Act. The Author explains the features of the two bills and its benefits but ultimately argues that despite its ability to provide needed reform, it will not correct the archaic, inhumane corrections system that would still remain. He proposes that, in addition to sentencing reform, the corrections system needs to be reformed and calls for newly funded programs to help rehabilitate criminals.

Soviet Prisoners In The Afghan Conflict, Mary Ellen O'Connell

Journal Articles

In May 1982, the International Committee of the Red Cross negotiated an agreement that facilitates prisoner of war exchanges from the Afghan conflict. Despite its creation, numerous problems exist that hinder its effective implementation. This Article examines those problems and discusses the benefits of these types of agreements. Ultimately, it is proposed that the ICRC should continue its efforts to develop these agreements to continue improving the international law that governs civil war and internal conflict.