Law Commons^™

Punishment And Compensation, George P. Fletcher

Faculty Scholarship

When novelists and philosophers turn to the work of lawyers, they tend to gravitate toward certain issues and ignore others. Two processes-punishment and compensation-lie at the heart of our legal system, but only the former has drawn the attention of literary and philosophical minds.

The issues of wrongdoing, guilt, and expiation are of endless fascination not only for Dostoevsky and Dürrenmatt, but for any writer who seeks to fathom the foundations of our moral life. For philosophers, the concept of punishment has become a proving ground of the even broader conflict between deontological and utilitarian moral theories. Deontologists hold that …

Reflections On Felony-Murder, George P. Fletcher

Faculty Scholarship

Of all the reforms proposed by the Model Penal Code, perhaps none has been less influential than the Model Code's recommendation on the perennial problem of felony-murder. As found in our nineteenth-century criminal codes, the rule has several variations. The basic scheme is to hold the accused liable for murder if the killing is connected in any way with the attempt to commit a felony or the flight from the scene of a felony. It does not matter whether the accused or an accomplice causes the death. Nor does it matter whether the killing occurs accidentally and non-negligently. According to …

Conflicts Of Law And Morality – Institutions Of Amelioration, Kent Greenawalt

Faculty Scholarship

In his rich, intricate, and wise examination of themes from the Crito, A. D. Woozley explores Socrates' proposal, put in the mouth of the personified laws of Athens, that the duty of a citizen is to obey a law or to persuade society that the law is wrong. If this position is understood to permit disobedience and attempted persuasion after a law is adopted, one of its implications is that on some occasions when people intentionally break the law, those who administer the law may properly decline to impose the stipulated punishment, because they believe that disobedience was justified. Suggesting …

A Delicate Assignment: The Regulation Of Accountants By The Sec, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

A Reply To Professor Ball, Philip Chase Bobbitt

Faculty Scholarship

Although it has been observed that approaching an allegedly universalistic theory by asserting the time- and culture-bound nature of that theory is an attack of some sort, Professor Ball does not take my lectures to be a rebuke to the enterprise in which he, Professor Tushnet, and others are engaged. Instead, he complains that I do not examine the relation between constitutional argument, on the one hand, and, on the other, social, political, and economic interests. This is a mistaken reading of my work. It is nice to be told that Tushnet and Ball accept my formulation "that in our …

A Structural Approach To Corporations: The Case Against Defensive Tactics In Tender Offers, Ronald J. Gilson

Faculty Scholarship

Tender offers present an obvious and inherent conflict of interest between management and shareholders. On the one hand, an offer provides shareholders with the opportunity to sell their shares for a substantial premium over market price. On the other hand, the tender offer is the principal mechanism by which management can be forcibly unseated from control. It should thus come as no surprise that management often resists outsiders' efforts to direct tender offers at its shareholders. The form of that resistance, however, is somewhat surprising. Because the tender offer is the only form of corporate acquisition addressed directly to the …

Article Nine's Treatment Of Commingled Cash Proceeds In Non-Insolvency Cases, William H. Henning

Faculty Scholarship

One of the most difficult questions arising under Article 9 of the Uniform Commercial Code is the extent to which a secured party's interest in collateral continues to be enforceable against the proceeds generated upon disposition of that collateral. Much of the difficulty surrounding this issue springs from the fact that proceeds occupy a position at the nexus of two competing Code policies. On the one hand, Article 9 validates the floating lien and minimizes the extent to which a secured party must continue to "police" a transaction once his interest has been perfected. On the other hand, it is …

Toward A Theory Of Prior Restraint: The Central Linkage, Vincent A. Blasi

Faculty Scholarship

The doctrine of prior restraint embodies a temporal preference. Acts of expression that could be sanctioned by means of criminal punishment or a civil damage award may not be regulated "in advance." The factor of timing, however, cannot serve to distinguish methods of regulation as neatly as this statement would seem to imply. In addition to a retrospective impact relating to punishment or compensation, criminal prohibitions and civil liability rules are meant to have a prospective impact – to deter speakers from engaging in harmful acts of expression in the future. If impact on speech before the moment of its …

Foreign Ownership And The Theory Of Trade And Welfare, Richard A. Brecher, Jagdish N. Bhagwati

Faculty Scholarship

Some standard topics in the theory of international trade are reconsidered in this paper by distinguishing between national and aggregate income when fixed supplies of foreign inputs are present within the home country. Under conditions that would ensure a national welfare gain if' foreign ownership were absent, international transfer, economic growth, or tariff policy might cause a national welfare loss in the presence of foreign ownership. The techniques developed could be applied to other domestic distinctions (such as those based on race, sex, age, or ethnicity) and to the theory of' customs unions in a three-country world.

Regulatory Reform In A Time Of Transition, Peter L. Strauss

Faculty Scholarship

As Americans have become both disheartened at the performance of their governments and conscious of their penetration into what were once private lives, regulatory reform has been urged with increasing fervor at both federal and state levels. Some of the reform talk is lawyer's talk, some of it is directed to the most fundamental aspects of the government order, and there is a good bit in between. My purpose here is to examine a number of the directions being suggested at the federal level for regulatory reform during the coming decade. While it would be helpful also to consider state …

Monrad Paulsen And The Idea Of A University Law School, Michael J. Graetz, Charles H. Whitebread Ii

Faculty Scholarship

Monrad Paulsen played a very special role in both of our lives. He was our friend and our first dean, and we will likely remember no future dean with the same affection, loyalty, and admiration. Monrad knew when to encourage and when to criticize, and he used his knowledge and the force of his personality to help launch both of us in the academic profession. He was, however, more to us than friend, supporter, and critic: our views about legal education were, in important and permanent ways, shaped by Monrad Paulsen.

Central to Monrad's view of legal education was his …

Principles Of Relational Contracts, Charles J. Goetz, Robert E. Scott

Faculty Scholarship

Recent scholarship has demonstrated that a significant proportion of private contracts do not easily fit the presuppositions of classical legal analysis. One reason for this is the pivotal role played in conventional legal theory by the concept of the complete contingent contract. Parties in a bargaining situation are presumed able, at minimal cost, to allocate explicitly the risks that future contingencies may cause one or the other to regret having entered into an executory agreement. Under these conditions, the role of legal regulation can be defined quite precisely. Once the underlying rules policing the bargaining process have been specified, contract …

The Unfinished Business Of Section 1244: Removing The Remaining Traps, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Report On The National Commission: Good As Gold, George J. Annas

Faculty Scholarship

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research ended its work by substantially endorsing the status quo which places primary reliance on local Institutional Review Boards for subject protection. This was predictable because of the Commission's researcher-dominated composition which permitted it to assume that (1) research is good; (2) experimentation is almost never harmful to subjects; and (3) researcher-dominated IRBs can adequately protect the Interests of human subjects. The successor Presidential Commission can learn much by reexamining these premises.

The Case For Medical Licensure, George J. Annas

Faculty Scholarship

Locke et al. argue elsewhere in this issue that medical licensure should be abolished. Their reasoning is direct and seductive - but their free market cure is worse than the disease they describe. Their major premise, for example, is simply wrong: "Any governmental action that violates individual rights is improper." For this notion they cite the ultraconservative novelist Ayn Rand who talks about things that are "right" for humans to do. But there are two confusions: (I) rights do not exist in a vacuum; in an interdependent society the rights of individuals must sometimes be balanced against the rights of …

Glass-Steagall: Some Critical Reflections, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Glass-Steagall: Some Critical Reflections, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

An Identity Crisis For The Corporate Lawyer, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Review Of Human Rights, Pnina Lahav

Faculty Scholarship

This small volume, mostly of essays presented at the World Congress of the International Association for Philosophy of Law and Social Philosophy held in Australia in 1977, addresses a random sample of the many faces of human rights.

Shifting Perspective In Product Liability: From Quality To Process Standards, Aaron Twerski, Alvin S. Weinstein, William H. Donaher, Henry R. Piehler

Faculty Scholarship

No abstract provided.

Artists, Art Collectors And Income Tax, Alan L. Feld

Faculty Scholarship

The federal income tax law treats artists and art collectors differently. Similar transactions concerning artworks produce disparate income tax results, depending on whether they involve the artist or the collector. On balance, these results seem to favor the collector over the artist. But notwithstanding the dismay of some artists and their advocates, the differences in result flow, in the main, from the differences in the source of the taxpayer's investment in the work.

The collector buys the work with after-tax income. Any gain is properly treated as an investment return and is eligible for capital gain benefits.' The collector, however, …

Lifetime Gifts - A Quantitative Approach, Roger A. Pies, Daniel S. Goldberg

Faculty Scholarship

No abstract provided.

How To Make The Massachusetts Patients' Bill Of Rights Work, George J. Annas

Faculty Scholarship

The movement for enhanced patients' rights is based on two premises: (I) citizens possess certain rights that are not automatically forfeited by entering into a relationship with a physician or health care facility; and (2) most physicians and health care facilities fail to recognize these rights, fall to provide for their protection or assertion, and limit their exercise without recourse.

The primary argument against patients' rights is that patients have "needs" and defining these needs in terms of rights leads to the creation of an unhealthy adversary relationship.' It is not, however, the creation of rights, but the disregard of …

Panel I: A Fresh Look At Federal Regulatory Strategies, Roberta S. Karmel, Richard B. Smith

Faculty Scholarship

No abstract provided.

Placing Pro Bono Publico In The National Legal Services Strategy, Mark N. Aaronson, Charles F. Palmer

Faculty Scholarship

No abstract provided.

International Adjudication: Embassy Seizure–United States V. Iran, Joel R. Paul

Faculty Scholarship

No abstract provided.

Reflections On Convenience Translations: A Reply To Professor Brooks, William K.S. Wang

Faculty Scholarship

No abstract provided.

Meeting The Equal Credit Opportunity Act's Specificity Requirement: Judgmental And Statistical Scoring Systems, Winnie F. Taylor

Faculty Scholarship

No abstract provided.

Defining The Role Of The Physician: Medical Education, Tradition, And The Legal Process, Robert L. Schwartz

Faculty Scholarship

The professional conflict and animosity that have developed between the legal and medical professions are symptomatic of something that is basic and disturbing to the traditional science and practice of medicine. Even a cursory review of the literature will reveal that physicians, lawyers, philosophers, and others (with greater or lesser degrees of insight and awareness) are currently engaged in serious reevaluations of such concepts as the definition of medicine as science and/or art, the structure and administration of effective medical curricula, and the goals of the medical profession itself. Such analyses require not only that physicians evaluate what they ought …

Panel: State Action And The Constitutional Accountability Of Private Utilities, Joel Gora

Faculty Scholarship

No abstract provided.