Law Commons^™

Policing The Bases Of Modern Expert Testimony, Ronald L. Carlson

Scholarly Works

The expanding array of scientific (as well as some not-so-scientific) specialties available as sources for testimony raises hard questions. Will courts require that the witness' opinions be reasonably based upon trustworthy data? How far must judges inquire into the practice of other experts in the same field prior to allowing the trial witness to proffer an expert opinion? How much of the expert's supporting data will be received in evidence? This Essay addresses these and other important questions affecting the scope of modern expert testimony.

Corporate Social-Reform, The Business Judgment Rule And Other Considerations, Robert N. Leavell

Scholarly Works

In recent years there has been a well-publicized movement to induce corporations to use their economic wealth and power to achieve "social-reform," rather than carry on as usual by professing to be guided only by profit-making. Social change is sought by allowing shareholders to make, or influence directly, those management decisions which significantly affect the quality of life in this country. This approach has found support on college campuses and among the commentators in this field. The Securities Exchange Commission and the courts also have endorsed this approach by legitimating such a role for shareholders despite the fact that it …

An Essay On Executive Branch Attempts To Eviscerate The Separation Of Powers, Christopher L. Blakesley

Scholarly Works

The Reagan Administration has been aggressively attempting to arrogate power to the Executive branch and to undermine the separation of powers in the realms of foreign affairs. To Chain the Dog of War shows that for decades the Executive branch has moved to appropriate Congress’ war powers. The Reagan Administration not only has continued that tradition, but also has attempted to erode the Judiciary’s power to decide questions of law and fact concerning human rights and liberty in international extradition cases involving political offenses. The underlying rationale for this shift has been that decisions to make war or to condemn …

Child Custody - Jurisdiction And Procedure, Christopher L. Blakesley

Scholarly Works

Custody determinations traditionally have comprised a subcategory of litigation under the Pennoyer v. Neff exception for proceedings relating to status. Of course, states have the power to decide the status of their domiciliaries. It was natural, therefore, for the courts and scholars of the nineteenth and early twentieth centuries to consider domicile the sole basis of jurisdiction in custody matters. Gradually, judges and scholars began to challenge the notion that domicile was the sole basis and courts began to apply other bases, such as the child's presence in the state or personal jurisdiction over both parents. One commentator suggests that …

Conflicts Between Copyright And The First Amendment After Harper & Row, Publishers V. Nation Enterprises, David E. Shipley

Scholarly Works

The relationship between copyright and the first amendment has been discussed repeatedly in the past fifteen years. A free speech privilege has been asserted as a defense in many copyright infringement actions, and the topic has been the subject of lively academic debate. Although no court has held an infringement claim to be defeated by a first amendment defense, considerable attention has been paid to the potential conflict between copyright and free speech interests. Commentators have speculated that in some situations copyright protection could impermissibly abridge the first amendment. The United States Supreme Court's decision in Harper & Row, Publishers …

Correspondence (Letter To The Editor), Alan Watson

Scholarly Works

In "A Comment on the Critical Method in Legal History," 6 Cardozo L. Rev. 997 (1985), Mark Tushnet responded to Alan Watson's review of his book, THE AMERICAN LAW OF SLAVERY, 1810-1860, which appeared at 91 Yale L.J. 1034 (1982). In a letter to the Editor-in-Chief of the Cardozo Law Review reproduced below, Professor Watson launches the next salvo in their ongoing debate by comparing quotes from Critical Method, THE AMERICAN LAW OF SLAVERY, the Yale book review, and other sources.

Clarifying The Attempt To Monopolize Offense As An Alternative Protectionist Legislation: The Conditional Relevance Of "Dangerous Probability Of Success", James F. Ponsoldt

Scholarly Works

The wounded condition of several major American industries, including steel and textiles, resulting from foreign ‘predatory’ conduct has generated much commentary. At the same time, private spokesmen for our institutionalized business interests, including the financial community, have bemoaned American balance of trade figures, blaming them on such ‘impediments' to our export trade as foreign trade barriers and domestic antitrust laws. The two trade problems suggest a common theme: foreign governments have been unfairly aiding their business interests by protecting monopolized or cartelized foreign markets from American business penetration while also subsidizing, directly or indirectly, foreign invasion of certain targeted American …

The Parenting Tax Penalty: A Framework For Income Tax Reform, Charles R.T. O'Kelley

Scholarly Works

Part I considers the proper tax treatment of out-of-pocket parenting expenses such as the costs incurred in providing food, clothing, shelter, and other goods and services to children for their consumption. Part I first characterizes the principal design alternatives to the present flat dependency deduction. It then examines the dominant accretion definition of income and concludes that the current flat dependency deduction is more consistent with the accretion concept and our actual governing beliefs than is any of the alternatives advocated by its critics.

Part II considers the tax relevance of imputed income from self-performed services. It explains (1) how …

Textbooks, Judges, And Science, Edward J. Larson

Scholarly Works

This Article offers a spectator's guide to this controversy by three central issues in Aguillard. First, the Article examines the persistent interest of both creationists and evolutionists in the content of public-school biology instruction, which is reflected in passage of the Balanced Treatment Act, and the overwhelming, organized opposition to its implementation. Focusing on the impact o science in recent decisions, the second section of the Article reviews judicial responses to the cases spawned by the controversy over creationist and evolutionary instruction. The Article concludes by exploring the central role played by scientific opinion in the legal arguments for and …

The Unreasonableness Of Coerced Cooperation: A Comment Upon The Ncaa Decision's Rejection Of The Chicago School, James F. Ponsoldt

Scholarly Works

The Supreme Court's decision in the NCAA case, upholding that the NCAA's mandatory rules controlling the exclusive sale of television rights to intercollegiate football violate section 1 of the Sherman Antitrust Act, is important for several reasons. First, it is among but a few decisions to hold that a restraint of trade although no per se illegal is economically unreasonable under the rule of reason. Second, its implied questions about the goals and relevance of antitrust enforcement coincide with questions about the governmental regulation of business now addressed in law reviews, editorial pages, and by congressional committees. Last, it may …

Comparative Responses To Surrogate Motherhood, Thomas A. Eaton

Scholarly Works

This Article analyzes the Warnock Report [UK] and the Surrogacy Arrangements Act [UK] in light of existing practices and laws in the United States and Great Britain. Section II provides a description of surrogacy practices and the uncertain legal environment in which they operate. Section III compares the Surrogacy Arrangements Act with Canadian, American, and Australian legislative proposals. Section IV then examines in more detail the commonly voiced ethical objections to surrogacy agreements an concludes that these objections do not warrant criminalization of surrogacy agreements. Finally, Section V offers suggestions on the enforcement of surrogacy agreements.

Constitutional Interpretation—The Uses And Limitations Of Original Intent, Thomas B. Mcaffee

Scholarly Works

It is fitting that in the decade of the Bicentennial of the Constitution we have seen a renewal of debate over the meaning of the Constitution and what is required to remain true to it. An aspect of that debate has concerned constitutional interpretation and the role of “original intent”—or perhaps more broadly, “original context”—in any proper approach to the interpretive process. Unfortunately, the debate is frequently approached from virtually an either/or perspective, as though the intent of the Framers must either control all constitutional questions or be used as no more than window-dressing. While some advocates of original intent …

Employee Recruitment By Design Or Default: Uncertainty Under Title Vii, Elaine W. Shoben

Scholarly Works

The employment of every new worker is the result of a two-stage process: recruitment of applicants and selection from the applicant pool. A personnel officer may evaluate only John and Jane Worker because Juan and Juanita Worker are not in the applicant pool. What active or passive acts by the company establish the applicant pool? The issue becomes particularly troublesome when Juan and Juanita Worker are members of one minority group and John and Jane Worker are members of another racial or ethnic minority group. May employers legally recruit more actively from one group than another?

This Article examines the …

The Evisceration Of The Political Offense Exception To Extradition, Christopher L. Blakesley

Scholarly Works

The Supplementary Convention to the Extradition Treaty between the Government of the United States of American and the Government of the United Kingdom of Great Britain and Northern Ireland, was signed on June 25, 1985, and transmitted to the U.S. Senate on July 17, 1985. This article will focus on the portion of the supplementary treaty which effectively eliminates the political offense exception, and on the statement made by the Legal Adviser to the Department of State, the honorable Judge Abraham D. Sofaer, made in favor of the Supplementary Treaty, on August 1, 1985. This article suggests that approval of …

A Race By Any Other Name: The Interplay Between Ethnicity, National Origin And Race For Purposes Of Section 1981, Eileen R. Kaufman

Scholarly Works

No abstract provided.

Regulating The Regulators In New York State: Part I, Harold I. Abramson

Scholarly Works

In New York State, there is an elaborate system in place for holding regulatory agencies accountable. It appears to be a system developed by happenstance rather than by design. It cannot be discovered by looking it up in our statute books. It can only be found by examining court cases, executive orders, legislative resolutions, bill jackets and governmental reports and by interviewing participants in the system. It is a system with which people knowledgeable of state government is at least familiar. But it is a system of regulation which appears not to be well documented nor well studied. This paper …

Law Schools: Where The Elite Meet To Teach (Transforming Legal Education: A Symposium Of Provocative Thought), Howard Glickstein

Scholarly Works

No abstract provided.

Regulating The Regulators In New York State, Part Ii: The Office Of Business Permits And Regulatory Assistance, Harold I. Abramson

Scholarly Works

It is no easy task to design an effective system of checks and balances for holding accountable the regulatory agencies. In New York State, there is in place an elaborate system of legislative, executive, comptroller and judicial regulation of the regulators. The executive review responsibilities of the regulatory assistance office is a significant addition to this system of regulation.

The centralized and systematic review of proposed regulations by the regulatory assistance office should provide the Executive an overview of the regulatory activities of state agencies and a unique opportunity to coordinate the development of state regulatory policies. The authority for …

First Amendment Restrictions On Title I Programs In Private Schools, Laura Dooley

Scholarly Works

No abstract provided.

Criminal Evidence And The Ear Of The Law, Daniel H. Derby

Scholarly Works

No abstract provided.

The Emperor Gideon Has No Clothes: The Empty Promise Of The Constitutional Right Of Effective Assistance Of Counsel, Richard Klein

Scholarly Works

No abstract provided.

The Relevance Of Tort Law Doctrines To Rule 10b-5: Should Careless Plaintiffs Be Denied Recovery?, Margaret V. Sachs

Scholarly Works

Private litigation under section 10(b) of the Securities Exchange Act of 1934 and rule 10b-5 is at present riddled with tort law doctrines. Familiar tort concepts such as aiding and abetting, respondeat superior, plaintiff's duty of care, in pari delicto, and contribution have been imported into the rule 10b-5 private action by a number of lower federal courts. The United States Supreme Court had not addressed the relevance of any of these doctrines until its decision this year in Bateman Eichler, Hill Richards, Inc., v. Berner. By disallowing a defense of in pari delicto on statutory enforcement grounds, Bateman plainly …

A House Of Lords' Judgment, And Other Tales Of The Absurd, Alan Watson

Scholarly Works

In this paper I want to look at four approaches to deciding a case in different societies-contemporary England, uncodified civil or 'mixed' law systems (with an example from 17th century Scot-land and another from early 20th century South Africa), 19th century France after codification, 15th century Germany with a glance at 13th and 14th century Spain-where the attempt is made each time to reach the correct decision by applying the mental process thought most appropriate. None of the approaches examined here is result-oriented, and to outsiders, especially to lawyers brought up in a different legal culture, the mental process seems …

In Memoriam: Vaughn Charles Ball (1915-1985), C. Ronald Ellington

Scholarly Works

Vaughn C. Ball was the Thomas Reade Rootes Cobb Professor of Law at the University of Georgia School of Law from 1974 until his retirement in 1983. Vaughn's death on December 2, 1985, deprived those of us who were fortunate to know him well of a wonderful colleague whose keen mind, wry humor, and engaging wit added sparkle to any conversation.

Why Professor Redish Is Wrong About Abstention, Michael Wells

Scholarly Works

Most critics of the Supreme Court's abstention doctrines have attacked the substantive merits of rules that channel constitutional litigation away from federal courts and into state courts instead. In a recent article, Martin Redish raises an interesting objection to abstention from a different perspective. He addresses the institutional legitimacy of the rules and contends that whatever their merits, rules like these should be made only by Congress and not the Supreme Court, for they contravene Congress' intent to grant federal courts jurisdiction over constitutional claims against state actors. Part I of this article describes the context in which the choice …

The Federal Taxation Of Nongeneral Powers Of Appointment, Amy Morris Hess

Scholarly Works

No abstract provided.

Law In A Reign Of Terror, Alan Watson

Scholarly Works

A few years ago I published a book, The Nature of Law, which was activated primarily by three long held beliefs. First, law is a means, not an end in itself; and legal rules, principles, decisions do not come into being without some purpose. The end envisaged for a legal rule or decision may be immediate -- to give financial compensation to a particular victim of negligence, for instance -- or more remote -- to promote general happiness or bolster the economic dominance of the ruling class, for example -- but that does not concern us here. What, in …

The Abortion Controversey: A Study In Law And Politics, Albert M. Pearson, Paul M. Kurtz

Scholarly Works

The Supreme Court's 1973 decision in Roe v. Wade, which held that women have a federal constitutional right to an abortion, has generated considerable controversy. The abortion issue became politically significant in the 1960's, when, emboldened by the Supreme court's recognition of a constitutionally based right of privacy, activists initiated a series of legal challenges to the validity of state abortion laws. Their efforts finally succeeded in 1973 when the Supreme Court in Roe and Doe v. Bolton struck down as unconstitutional the Texas and Georgia abortion laws. For those who objected to the result in Roe, however, …

Tax Policy For Post-Liberal Society: A Flat-Tax-Inspired Redefinition Of The Purpose And Ideal Structure Of A Progressive Income Tax, Charles R.T. O'Kelley

Scholarly Works

A flat rate comprehensive federal income tax could be achieved by replacing graduated rates with a single rate that applies to all taxpayers, eliminating many currently available deductions and credits, and treating as taxable income types of economic gain presently excluded from the tax base. The fact that Congress is seriously considering such radical changes makes it appropriate for tax scholars to reconsider longheld beliefs about the ideal structure of an income tax. This Article analyzes the characteristics and underlying rationale of a progressive flat rate comprehensive income tax and reconsiders the nature and purpose of a progressive income tax. …

Review Essay On Affirmative Action, Leslie C. Griffin

Scholarly Works

No abstract provided.