Law Commons^™

The International Reach Of Rule 10b-5: The Myth Of Congressional Silence, Margaret V. Sachs

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This article challenges the conventional wisdom that in adjudicating the international reach of rule 10b-5 courts begin with a blank legislative slate. The history of the securities laws demonstrates that this conventional wisdom is erroneous in two important respects. First, the securities markets of the 1920's were highly international, as Congress was well aware when it enacted the 1933 and 1934 Acts. Second, Congress nevertheless chose to protect only those investors whose trades occur inside the United States-“domestic traders” -- regardless of whether the securities traded are domestic or foreign. As a result, foreign traders lack standing to sue under …

The Unimportance Of Precedence In The Law Of Federal Courts, Michael L. Wells

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Part I of this Article asserts that the Supreme Court pays little attention to precedent in federal courts law. My examples in support of this claim are taken from important areas of federal courts doctrine, where two major upheavals have taken place in the past thirty years. First, the Warren Court rewrote the law to expand access to federal court. then under Chief Justice Burger, the Court undid many of the changes wrought by its predecessor. The discussion in Part I of prominent departures from precedent is not offered as decisive proof that stare decisis is less important in federal …

The Transformation Of American Property Law: A Comparative Law Approach, Alan Watson

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This Article looks at aspects of a particular societal problem as it was approached at different historical periods in Roman, French, and American property law. The main point of the Article is to clarify understanding of the American course of development through an awareness of how the problem was dealt with elsewhere. This awareness will cast doubt on the simplicity of the American course of development as explained in a distinguished book, and on the relationship of the legal development to economic change. In THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, Morton J. Horwitz seeks "to show that one of the …

Section 301'S Preemption Of State Law Claims: A Model For Analysis, Rebecca White

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Congress, in section 301(a) of the Labor Management Relations Act, has provided a cause of action for breach of a collective bargaining agreement. This statute has long been interpreted as ousting state law claims for breach of contract when the contract involved is a collective bargaining agreement.

To what extent Congress, in enacting section 301, intended to foreclose other state law claims by the parties to or the individuals covered by a collective bargaining agreement is an issue that has recently gained prominence. The Supreme Court has decided four such cases unanimously in the last four years.

Such contemporary and …

Note, Maynard V. Cartwright: Channeling Arizona's Use Of The Heinous, Cruel Or Depraved Aggravating Circumstance To Impose The Death Penalty, Terrill Pollman

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“Death is qualitatively different from other punishments that can be imposed by the state.” Recognition of this disturbing conclusion led to the heightened scrutiny demonstrated in a series of United States Supreme Court rulings beginning with Furman v. Georgia, which set forth the constitutionally acceptable range of discretion that a judge or jury may use in imposing the death penalty. States have attempted to bring their statutes within the Furman v. Georgia range by articulating aggravating circumstances that warrant the imposition of the death penalty. One controversial circumstance that many states employ permits a capital sentence where the offense …

The Original Meaning Of The Ninth Amendment, Thomas B. Mcaffee

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This Article presents the case for the residual rights reading of the ninth amendment as against the affirmative rights interpretation. The author evaluates the merits of these opposing views to determine whether the proponents of the new orthodoxy have really made the case for discarding the received reading. This analysis of the recent literature also raises questions about the way in which constitutional scholarship is conducted. The author concludes that the original meaning of the ninth amendment lends critical support to the project of originalist jurisprudence in the individual rights area and undercuts modem claims linking the ninth amendment to …

Civil Rights In Employment: The New Generation, Linda H. Edwards

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In July 1989, Title VII was twenty-five years old. It is generally assumed that the first twenty-five years have seen significant changes in the economic opportunities available to America’s minorities and women. But with the rise to power of the Reagan appointees, the Supreme Court is clearly fashioning a new approach to issues of civil rights in employment. This article analyzes the new Court’s emerging themes and proposes a congressional response.

Major Contemporary Issues In Extradition Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on high crimes in international law, and the ability to extradite state and high government officials for committing them.

Installment Method Asset Sales By S Corporations, Mary Lafrance

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This Article examines the impact of recent developments on a particular category of taxpayer: the S corporation whose shareholders desire to sell some or all of the corporation's assets. While an installment sale of assets has, for many taxpayers, lost much of its previous allure, such sales may still be commercially desirable under certain circumstances—e.g., where a buyer lacks ready cash or adequate borrowing power. In such a case, some S corporations may be able to achieve significant tax savings through proper planning and documentation of an installment sale. Until Congress or the Treasury provides needed clarification, however, …

The Modern Blood Feud: Thoughts On The Philosophy Of Terrorism, Christopher L. Blakesley

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Herman Melville brilliantly lets us feel, through Captain Ahab, the sensation of destructive rage, hatred and violence. Sadly, Melville's insight penetrates to the core of society, perhaps of each of us, in today's omnipresent terroristic melodrama. We have all suffered moments of vicarious terror and rage over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. The melodrama of terrorism has penetrated each of our lives. We see it and feel the rage nearly on a daily basis. Innocent children, women and men aboard Pan …

Patterson And Civil Rights: What Rough Beast Slouches Towards Bethlehem To Be Born?, Peter Brandon Bayer

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Contrary to its assertions, the U.S. Supreme Court’s decision in Patterson decision marks a stark departure from the federal courts' former practice of according Congressional civil rights enactments a broad reading to effectuate their remedial purposes. Indeed, Patterson offers an exceedingly narrow interpretation of this nation's oldest civil rights law, the Civil Rights Act of 1866.

In addition to its effect on the scope and application of § 1981, Patterson must be read in conjunction with several other decisions issued during the same term that limit—indeed retreat from—the application of civil rights laws designed to restore both lost opportunities and …

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

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As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

Whose Nature? Practical Reason And Patriarchy, Lynne Henderson

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No abstract provided.

The Viability Of Citizens’ Suits Under The Clean Water Act After Gwaltney Of Smithfield V. Chesapeake Bay Foundation, Bevery Mcqueary Smith

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No abstract provided.

The Bar Exam Essay Maze: A Roadmap Through The Tangle, Bevery Mcqueary Smith

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No abstract provided.

Abortion Rights (Symposium: The Supreme Court And Local Government Law; The 1989-90 Term), Eileen Kaufman

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No abstract provided.

In Lieu Of Preclusion: Reconciling Administrative Decisionmaking And Federal Civil Rights Claims, Marjorie A. Silver

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No abstract provided.

Affirmative Action Doctrine And The Conflicting Messages Of Croson, Doug D. Scherer

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No abstract provided.

Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon

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No abstract provided.

Reflections On Identity, Diversity And Morality, Deborah W. Post

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The author reflects over events in her life that helped her define herself and her ethical identity, a black woman teacher.

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

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There is no theme more familiar to constitutional law than the clash between federal power and state autonomy. The history of that struggle reveals, by and large, a long losing battle by the states. Over the years, the Supreme Court has recognized far-reaching congressional powers, rebuffed efforts to rein them in through use of the tenth amendment, and saddled the states with every significant restraint imposed by the Bill of Rights. From time to time, however, the currents of constitutional doctrine run in favor of local control. In recent years, for example, the Court has stemmed the tide toward constitutionalizing …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

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This article focuses on an important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause. The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...” Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing …

Foreign Policy And Export Controls: How Will The Canada-United States Free Trade Agreement Accommodate The Extraterritorial Application Of The United States Laws To Canadian Exports Of Goods And Technology?, Dorinda G. Dallmeyer

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This paper begins with a comparison of the Canadian and U.S. export control structures. It examines resulting conflicts between the two. It then describes the provisions of the Free Trade Agreement which address the harmonization of export controls. While the Agreement is far-reaching, it is important to note that the FTA is not a Customs Union. That is, the two countries are not going to develop a common external trade policy but will continue to maintain independent trade relations with respect to third countries. In light of that fact, the paper analyzes the prospects for continuing conflict between the United …

American Acceptance Of The Jurisdiction Of The International Court Of Justice: Experiences And Prospects, Louis B. Sohn

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The International Court of Justice ("ICJ" or "Court") is the successor to both the Permanent Court of Arbitration and the Permanent Court of International Justice. Before the first court was established in 1899, only ad hoc tribunals existed. This was due to a basic fact of international law that international tribunals possessed jurisdiction only if the parties to the case conferred it on the tribunal either for that case or previously by an international agreement. Therefore, the great problem of international law today is how to confer as much jurisdiction on the international court as possible. Now that the use …

Equal Protection Run Amok? An Analysis Of The Nebraska Supreme Court's Decision In The Northern Natural Gas Case, Walter Hellerstein

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In Northern Natural Gas Co. v. State Board of Equalization and Assessment, the Nebraska Supreme Court held that the state could not constitutionally tax the personal property of one taxpayer while exempting the personal property of other taxpayers. Specifically, the court held that pipelines were entitled to an exemption of their personal property because the personal property of railroads and car-lines had been exempted from taxation pursuant to the provisions of the Railroad revitalization and Regulatory Reform Act of 1976 (the 4-R Act), which requires that the railroad and car-line property be taxed in the same way as other commercial …

Binding Contracts In Georgia Local Government Law: Configurations Of Codification, R. Perry Sentell Jr.

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The potential for creating uncertainty looms as a primary and ever-present problem in the codification process. A dominant concern is the fear the unintended statutory changes--or, worse still, the quandary of whether what appears to be such a change was truly intended--may result. The perplexing issues emanating from that quandary can considerably dissipate the benefits of progressive statutory codification. For purely illustrative purposes, attention might be called to the present plight of an historic precept in Georgia local government law. That precept unflinchingly condemns a local governing authority's efforts to commit its successors to a given course of governmental action. …

Rhetoric And Reality In The Law Of Federal Courts: Professor Fallon's Faulty Premise, Michael L. Wells

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Richard Fallon's recent article, "The Ideologies of Federal Courts Law," [74 Va. L. Rev. 1141 (1988)] offers valuable insights into a bewildering body of Supreme Court doctrine. He effectively demonstrates the "substantial doctrinal instability" of this body of law, and also discerns a pattern amid the chaos. Fallon's treatment of the case law and the scholarship is fair-minded, meticulous, and incisive.

I disagree, however, with one aspect of Fallon's thesis. In my view, he falters when identifying sources of the discontinuity in the doctrine. In Part I of his article he argues that the decisions reflect "two sets of incompatible …

Conference Introduction, C. Ronald Ellington

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I am pleased to welcome everyone, especially our distinguished speakers, to this most important conference. Our purpose is to discuss ways of maintaining the post-World War II multilateral trading system between the United States and its economic parters, the OECD and the developing world. The Uruguay Round multilateral trade negotiations have given the international community a forum to thoroughly examine the possibility of brining all international trade under a common multilateral trading system, unencumbered by barriers and national interests. The liberalization of trade in services and the protection of industrial and intellectual property rights are an essential part of the …

Administrative Procedure And The Internal Revenue Service: Delimiting The Substantial Understatement Penalty, Peter A. Appel

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In the early 1980's, Congress faced the mounting problems of tax shelters and other forms of tax avoidance. It responded by passing a series of laws.1 One of these provisions, section 6661 of the Internal Revenue Code, penalizes "substantial understatement" of tax liability.2 While section 6661 may appear to be a typical, innocuous tax code provision, close examination reveals that the substantial understatement penalty threatens to expand quietly the power of the Internal Revenue Service (IRS) over taxpayers, violating the spirit of the Administrative Procedure Act (APA) in the process.

Section I of this Note explores the background of section …

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

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The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that the reasons set …