Law Commons^™

Western Scholarship On Chinese Law: Past Accomplishments And Present Challenges, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

Chinese law-making in recent years has been nothing less than remarkable and presents a new challenge for research today. The recent adoption of new codes, the revival of formal legal institutions, including courts and the bar, and the reinvigoration of legal education and research all signal the reappearance of an entire field of study.

Although a foundation for study was laid by some scholars in the 1960's, the field later declined, reflecting the low condition to which the Chinese legal system fell, both before and during the disastrous Cultural Revolution. Once again, however, study of the operation of the Chinese …

Was There A Baby In The Bathwater? A Comment On The Supreme Court's Legislative Veto Decision, Peter L. Strauss

Faculty Scholarship

Examining the Supreme Court's recent decisions in the legislative veto case, Professor Strauss stresses the importance of a distinction no Justice observed between use of the veto in matters affecting direct, continuing, political, executive-congressional relations, and use of the veto in a regulatory context. Only the latter, he argues, had to be reached by the Court; and only the latter presents the constitutional difficulties that troubled the Court. The utility of the veto in the political context makes the opinions' sweep regrettable.

Free Speech And Intellectual Values, Lee C. Bollinger

Faculty Scholarship

In the preface to his book, The Negro and the First Amendment, Harry Kalven observed that the idea of free speech was marked by an unusually keen "quest for coherent general theory." Every area of the law, Kalven puzzled, was rife with inconsistency and ambiguity, yet inexplicably there was little tolerance· for anomalies in the field of free speech. As to why this was so, Kalven speculated that "free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the …

Teaching Administrative Law: The Wonder Of The Unknown, Peter L. Strauss

Faculty Scholarship

Sunday, March 7, 1982

Dear Roger:

You would have enjoyed being among the hundred-odd administrative law teachers and hangers-on who met this past weekend for the AALS Workshop on Administrative Law, organized by Ernest Gellhorn of Virginia, [now dean at Case Western]. Perhaps it was the plane ride home, when I had a chance to read Frank Easterbrook's short but very elegant use of Arrow's Theorem in a recent Harvard Law Review; or perhaps it is just a goodnight's sleep, home away from the sybaritic pleasures of New Orleans, and knowing my dean will want a justification in terms …

Sharing Parenthood After Divorce, Carol Sanger

Faculty Scholarship

Ciji Ware's first sentence in the popularly publicized Sharing Parenthood After Divorce directs the reader to "read this book before you hire a lawyer." Because many separated and divorced parents will follow Ware's instruction, family law practitioners should be aware of Ware's approach to and recommendations regarding custody. Her position is clear. The book is subtitled An Enlightened Custody Guide for Mothers, Fathers, and Kids and the meaning of "enlightened" is apparent from the title of Part One, "Why You Should Choose Shared Custody." But because her message is sometimes more enthusiastic than considered, lawyers and parents should be aware …

To Praise The Estate Tax, Not To Bury It, Michael J. Graetz

Faculty Scholarship

For several decades, total revenues raised by estate and gift taxes have roughly equaled those raised by excise taxes on alcohol and tobacco. Yet no law journal has ever asked me to write on alcohol or tobacco excise taxes. The law firms of America do not routinely have divisions devoted to excise tax planning. We do not hear of the suffering of widows and orphans (or even of farmers and small businesses) because of alcohol and tobacco taxes. Philosophers and economists do not routinely debate the merits of such taxes. Perhaps most significantly, increases in such excise taxes do not …

The 1982 Minimum Tax Amendments As A First Step In The Transition To A "Flat-Rate" Tax, Michael J. Graetz

Faculty Scholarship

The massive body of tax legislation enacted in the first two years of the Reagan Administration offers little guidance for predicting the future direction of United States tax policy. Dramatically different Congressional coalitions – each led by the President – passed by very narrow margins the nation's largest tax reduction (the Economic Recovery Tax Act of 1981) and then the next year enacted the largest peacetime tax increase (the Tax Equity and Fiscal Responsibility Act of 1982). In each case, short-term political and fiscal concerns dominated the debates. The 1981 legislation reduced taxes in an effort to stimulate economic activity …

Legality, Bureaucracy, And Class In The Welfare System, William H. Simon

Faculty Scholarship

When lawyers confronted the welfare system in the 1960's, they charged it with oppressive moralism, personal manipulation, and invasion of privacy. They focused attention on the "man-in-the-house" rules that disqualified families on the basis of the mother's sexual conduct and the "midnight raids" in which welfare workers forced their way into recipients' homes searching for evidence of cohabitation.

When I represented welfare recipients from 1979 to 1981, the workers showed little interest in policing their morals or intruding on their private lives. The "man-in-the-house" rule and the practice of unannounced or nighttime visits had been repudiated. Yet the pathologies emphasized …

Commercial Arbitration In The Eighteenth Century: Searching For The Transformation Of American Law, Eben Moglen

Faculty Scholarship

Some recent writing on the history of American law, notably that of Morton Horwitz, has observed a "transformation" in the early years of the nineteenth century as a new legal culture replaced the pre-commercial regime and altered rules of law in favor of the commercially active founders of industrial capitalism. In the course of this transformation, Horwitz argues, merchants and lawyers identified possible grounds for an "alliance," in which the lawyers gained social status and a monopoly in adjudicative institutions, while the commercial classes gained a system of law which subsidized their interests at the expense of other classes in …

The Metastasis Of Mail Fraud: The Continuing Story Of The Evolution Of A White-Collar Crime, John C. Coffee Jr.

Faculty Scholarship

Justice Cardozo observed that legal principles have a tendency to expand to the limits of their logic, and Judge Friendly has added the corollary that sometimes the expansionary momentum carries the principle even beyond those limits. So it has been with the recent growth in the federal mail fraud law, as courts have applied a standardized formula- known as the "intangible rights" doctrine- to a broad range of fact patterns having relatively little in common. The result has been both to extend the net of the federal criminal sanction over an extraordinarily vast terrain and to arm the federal prosecutor …

Violence – Legal Justification And Moral Appraisal, Kent Greenawalt

Faculty Scholarship

Thought about a "Right to Violence," the subject of this symposium, is difficult. Once one has adjusted to the paradoxical conjunction of the terms "right" and "violence," and recognized that people may have rights to commit violent acts in some circumstances, one must face the disturbing fact that feelings about violence are highly colored by peculiar psychological dispositions and political ideologies. Especially in respect to violence that is committed in defiance of law, the search for fair bases of moral judgment proves elusive.

The main theme of this essay is that the law itself can provide illuminating points of reference …

The Generalized Theory Of Transfers And Welfare: Bilateral Transfers In A Multilateral World, Jagdish N. Bhagwati, Richard A. Brecher, Tatsuo Hatta

Faculty Scholarship

Paul Samuelson's (1952, 1954) classic papers on the transfer problem addressed two separate analytical issues: the "positive" effect of a transfer on the terms of trade; and the welfare effect of the transfer on the donor and the recipient.

Since then, a considerable body of literature has grown up on the positive analysis. While Samuelson (1954) himself had extended the 2 X 2 X 2 free trade analysis to allow for tariffs and transport costs, subsequent writers have analyzed other extensions of the model: for example, to allow for nontraded goods as with leisure in Samuelson (1971); or general nontraded …

Punishment, Kent Greenawalt

Faculty Scholarship

Although punishment has been a crucial feature of every legal system, widespread disagreement exists over the moral principles that can justify its imposition. One fundamental question is why (and whether) the social institution of punishment is warranted. A second question concerns the necessary conditions for punishment in particular cases. A third relates to the degree of severity that is appropriate for particular offenses and offenders. Debates about punishment are important in their own right, but they also raise more general problems about the proper standards for evaluating social practices.

The main part of this theoretical overview of the subject of …

How Empty Is The Idea Of Equality, Kent Greenawalt

Faculty Scholarship

The nature of equality and the relationship between equality and justice have long been puzzling to social and legal philosophers. One manifestation of these problems of understanding is uncertainty among lawyers and judges about the significance of legal norms formulated in the language of equality, most notably the equal protection clause of the Constitution. In an elaborately reasoned, imaginative, and richly referenced recent article, Peter Westen has urged the arresting conclusion that the idea of equality is empty, empty in the sense that any normative conclusion derived from the idea could be reached more directly by reliance on normative judgments …

The Mitigation Principle: Toward A General Theory Of Contractual Obligation, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

The duty to mitigate is a universally accepted principle of contract law requiring that each party exert reasonable efforts to minimize losses whenever intervening events impede contractual objectives. Although applications of the mitigation principle pervade the specific rules of contract, it is startling how many questions remain unanswered as to precisely what efforts the mitigation duty requires and what point in time the obligation arises. For example, under what circumstances does mitigation require an injured party to deal with the contract breacher? Why does the duty to minimize losses mature only after the breach, even if the injured party became …

Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.

Faculty Scholarship

Forty years ago, Judge Jerome Frank coined the term "private Attorney General" to recognize the role of private litigation in the enforcement of law. In the intervening years, the "private attorney general" concept has become both a cliche and a crutch, receiving polite lip service from nearly all, but critical analysis from relatively few. As most college sophomores know, the private attorney general is someone who sues "to vindicate the public interest" by representing collectively those who individually could not afford the costs of litigation; and, as every law student knows, our society places extensive reliance upon such private attorneys …

Marbury And The Administrative State, Henry Paul Monaghan

Faculty Scholarship

Marbury v. Madison's prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials. Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two …

The Watchdog Of Neutrality, George P. Fletcher

Faculty Scholarship

No one knows who counts as a democrat, as a fascist, or as a liberal. It is much easier to know whether it is good or bad to earn one of these political labels. Virtually everyone – including repressive regimes in eastern Europe – regards it as good to be democratic. These days, however, it is hard to encounter a sympathetic wink for fascism. Liberalism is more controversial. A growing number of our colleagues in law schools now regard it as intellectually bankrupt, if not worse, to think of oneself as a liberal. Respectable philosophers chronicle the poverty of liberalism, …

The Sedition Of Free Speech, Lee C. Bollinger

Faculty Scholarship

Several years ago, a story appeared in The New York Times which provided a graphic illustration of how the Soviet government manipulates the news about itself. Each year on May Day, the Times reported, the Soviet leadership poses for a photograph while standing atop the Lenin tomb in Red Square. In the year of the Times story, however, the photograph had undergone a number of noticeable alterations as it appeared in the various government-run media outlets. One official had been removed altogether, another had been positioned a bit closer to Brezhnev, some who had not in fact been present were …