Law Commons^™

A Barrel Without Hoops: The Impact Of Counterterrorism On Israel's Legal Culture, Pnina Lahav

Faculty Scholarship

"'Israel's Defense Forces without law is like a barrel without hoops.'"

Terrorism challenges basic notions of Justice and Law. It demoralizes the State by exposing the inability of its institutions to protect life and liberty. It is the tool of desperados, whose devotion to a given cause has dehydrated their conscience, for whom no means is too ruthless in the struggle to attain the end. Once a society has tasted terrorism, its members expect to be struck anytime, anywhere, and for no reason other than their membership in that society. Only through tremendous inner strength can a society exposed to …

Reconciling Collective Bargaining With Employee Supervision Of Management, Michael C. Harper

Faculty Scholarship

The realities of economic organization in modern industrial states pose a critical dilemma for all who care about democratic ideals. Technological developments and attendant complicated divisions of work have enabled these states to transform their citizens' standards of living; such developments have also, however, brought hierarchical economic organizations' that are unresponsive to the influence of most individual employees. A society that claims to be democratic cannot ignore this condition.² Enhancing individuals' control over their own lives requires institutions that will facilitate democratic decisionmaking about economic production as well as governmental authority.

This Article contributes to thought about such institutions …

The Ethics Of Insider Trading, Gary S. Lawson

Faculty Scholarship

The quickest way to become famous is often to become infamous, as arbitrageur Ivan Boesky has recently discovered. Prior to November 1986, Mr. Boesky was well-known within the financial community, but largely unknown outside it. That changed dramatically following revelations that he and Dennis Levine, a merger specialist with the investment banking firm of Drexel Burnham Lambert, Inc., had made tens of millions of dollars in the stock market by using Mr. Levine's advance knowledge of impending takeovers by Drexel clients. Today, after disgorging $50 million in profits, paying $50 million in penalties, and receiving a jail sentence,' Mr. Boesky …

Vanessa Redgrave V. Boston Symphony Orchestra, Inc.: A Breach Of Constitutional Dimension, Maria O'Brien

Faculty Scholarship

In Vanessa Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93 (1987), the Supreme Judicial Court (SJC) issued an important ruling on the parameters of the Commonwealth's relatively new Civil Rights Act (MCRA)' by answering two questions certified to it by the United States Court of Appeals for the First Circuit. The SJC held that MCRA is essentially the state equivalent of 42 U.S.C. §1983 without the federal "state action" requirement.' This article briefly examines the SJC's decision in Redgrave in light of Massachusetts precedent and the vast federal experience with §1983 actions (Section I) and then considers the …

In Search Of The Virtuous Prosecutor: A Conceptual Framework, Stanley Z. Fisher

Faculty Scholarship

Questions about the scope and content of the duty to "seek justice" pervade prosecutorial work. Prosecutors are required to serve in a dual role: they are both advocates seeking conviction and "ministers of justice." Observers have complained about a tendency on the part of prosecutors to prefer the former of these "schizophrenic" obligations to the latter. This is commonly described as a tendency to behave overzealously or according to a "conviction psychology. ' "

Informed Consent In The Post-Modern Era, Wendy K. Mariner

Faculty Scholarship

The doctrine of informed consent' is intended to get physicians to talk to their patients so that patients can make reasonably knowledgeable choices about whether to undergo particular forms of medical care. Although the law has long prohibited treatment without the patient's consent,² physicians have resisted the idea that treatment decisions ultimately are for the patient to make. Only recently have physicians been willing to disclose information about the benefits and risks of recommended therapies. ³ Even with the best of intentions, however, the discussions that do take place are often far from the law's ideal of reasonable disclosure …

Risk Communication Law And Implementation Issues In The United States And European Community, Michael S. Baram

Faculty Scholarship

Risk communication has become an important element of public policy in the United States and the European Community (E.C.) for reducing technological risks to workers, product users and community residents. The risk communication process involves disclosure by an industrial firm (or other party) of information about the hazardous attributes of its activity or product to a regulatory agency or to persons who may be at risk, thereby facilitating a shared understanding of the risk and enabling interpretation of various risk prevention and response measures.

There are two general patterns of risk communication. One involves industrial disclosure to a government agency, …

Government Official Torts And The Takings Clause: Federalism And State Sovereign Immunity, Jack M. Beermann

Faculty Scholarship

In this article, I argue that state sovereign and official immunities, insofar as they bar recovery when private parties would be liable for similar conduct, are unconstitutional under the takings clause of the fifth amendment, as applied to the states under the fourteenth.²² A state's refusal to compensate plaintiffs for the tortious damage or destruction of property should be redressed by the federal courts in civil actions brought under § 1983.

Section I of this article provides background through a discussion of the Supreme Court's treatment of the problem of torts committed by government officials, primarily in procedural due …

The Misadventures Of State Postconviction Remedies, Larry Yackle

Faculty Scholarship

In a colloquium concentrating on the lower federal courts' jurisdiction to determine federal claims, it falls to me to treat state court opportunities to adjudicate the same issues in advance of, as an aid to, or in place of federal litigation. To do that, I will have to recount some conventional wisdom regarding the development of federal habeas corpus and state postconviction remedies in tandem during the last half century. In due course, I hope to solicit support for an unconventional conclusion to be drawn from that experience.

Fairy Tales Surrogate Mothers Tell, George J. Annas

Faculty Scholarship

How did surrogate motherhood evolve from a "hare-brained, fly by night" idea of the late 1970s into one that had at least some mainstream, middle-class support in the mid-198os? Many explanations have been suggested. Although the rate of infertility has not increased, infertility is no longer a secret, and there are major public support groups, like RESOLVE, that advocate for infertile couples. New and powerful techniques like IVF (in vitro fertilization) have been developed, and although they help very few people, they have been widely publicized and approved. And babies are fashionable again. As one movie critic put it: "Men …

The Ethics Of Insider Trading, Gary S. Lawson

Faculty Scholarship

The quickest way to become famous is often to become infamous, as arbitrageur Ivan Boesky has recently discovered. Prior to November 1986, Mr. Boesky was well-known within the financial community, but largely unknown outside it. That changed dramatically following revelations that he and Dennis Levine, a merger specialist with the investment banking firm of Drexel Burnham Lambert, Inc., had made tens of millions of dollars in the stock market by using Mr. Levine's advance knowledge of impending takeovers by Drexel clients. Today, after disgorging $50 million in profits, paying $50 million in penalties, and receiving a jail sentence, Mr. Boesky …

A Preface To Constitutional Theory, David B. Lyons

Faculty Scholarship

We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.

The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests …

Holmes And Brandeis: Libertarian And Republican Justifications For Free Speech, Pnina Lahav

Faculty Scholarship

Writing The Name of the Rose, observed Umberto Eco, made him aware of the "echoes of intertextuality." He discovered what "Homer, Rabelais and Cervantes have always known: . . .books always speak of other books, and every story tells a story that has already been told."' The same applies to political and legal theories: they weave the past into the present. Thus, in articulating justifications for freedom of speech, one may look to modern works such as Milton or John Stuart Mill, or one may reach farther back to Aristotle, Plato or Pericles. The choice of intellectual sources as …

Taxation Without Premeditation: An Economic Analysis Of The Structure, Regulation And Strangulation Of The Private Activity Bond Market, Kevin Outterson

Faculty Scholarship

Private Activity Bonds (PABs) are private debt issued under the auspices of state governments. The states issued $119.4 billion dollars of long-term PABs in 1985. Utilizing the state government conduit transforms the bond interest into federally tax exempt income. As a result, PABs bear lower interest rates than comparable taxable bonds. PAB financing significantly reduces private capital costs at the expense of the Federal Treasury. The structure of the PAB subsidy is fundamentally flawed. State governments subsidize local businesses and investments with PABs, often in competition with sister states. The states receive significant local benefits, but bear no direct costs …

In Praise Of Woodenness, Gary S. Lawson

Faculty Scholarship

Not long ago, I was a stalwart champion of judicial terrorism on behalf of economic liberty. In recent years, however, I have become a meek, mildmannered originalist whose favorite adjective is "wooden."' I still like economic liberty as much as the next person - in fact, more than at least one of the next two persons. Nonetheless, much as I would like to, I cannot agree that the Constitution requires a free market to the extent urged by, among others, Roger Pilon, Bernard Siegan,3 Steven Macedo, 4 Randy Barnett,5 and Richard Epstein.6 My aim here is not to criticize their …