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Unwanted Sex: The Culture of Intimidation and the Failure of Law
Stephen J. Schulhofer
Despite three decades of intense scrutiny and repeated attempts at ambitious reform, our laws against rape and sexual harassment still fail to protect women from sexual overreaching and abuse. What went wrong? In this original, provocative, and enlightening work, Stephen Schulhofer, a distinguished scholar in criminal law, shows the need to refocus our laws against rape and to create a new system of legal safeguards against interference with sexual autonomy. Our laws provide comprehensive protection for property rights, labor, and other important interests, but sexual autonomy—the right to choose freely whether and when to be sexually intimate with another person—is devalued and ignored. With vivid examples, including stranger assaults, date rapes, and sexual encounters between job supervisors and subordinates, teachers and students, doctors and patients, lawyers and clients, Schulhofer shows that recent reforms of rape and sexual harassment law are overrated and inadequate. From the excessive degree of force necessary for an aggressive action to be defined as rape, to the gray areas in which coercion and exploitation can be used to elicit a false but legally valid “consent,” Schulhofer offers a clear analysis of the limits of current standards. His proposals for a radically different approach hold the promise of genuine respect and effective protection for the sexual autonomy of both women and men. It is an ambitious yet sensible vision, committed to allowing willing partners to seek consensual relationships, while fully protecting each person’s right to refuse sexual encounters that are not genuinely desired.
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Civil Procedure: Cases and Materials
John J. Cound, Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton
This Seventh Edition, which has been prepared by Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton, has had the benefit of many comments of colleagues from the large number of schools in which the first six editions have been used. These responses have been gratifying in confirming our own conclusion that the book is a highly successful teaching tool, regardless of the precise form of the civil procedure course being taught or of the specific material covered in it. As a result, this Seventh Edition preserves he same basic format and much of the material found in the earlier editions. Why then is a new edition necessary? Certainly a revision cannot be justified simply to achieve relatively trivial improvements or merely to replace the original text with more recent matter of similar substantive content. The reason for this volume is that since publication of the Sixth Edition there have been important developments in several areas of procedure, which give rise to intellectually stimulating questions and policy considerations that require inclusion in a contemporary casebook. Thus, the chapter on class actions has been substantially reworked to address mass tort litigation as an emerging trend in the law. The chapters on notice and personal jurisdiction have been revised to reflect significant changes in the Federal Rules of Civil Procedure, Rule 4 in particular. The chapter on supplemental jurisdiction has been revised to address the impact of amendments to 28 U.S.C. § 1367. The chapter on pretrial devices for obtaining information has been reworked, reflecting changes in the discovery process and the new provisions for mandatory disclosure. New sections, reflecting recent amendments to relevant statutes and to the Federal Rules, have been added to other chapters. Finally, introductory material, case notes, and citations to treatises, law review articles, and cases have been thoroughly revised and updated. We have looked for modern cases in which the facts are interesting, in which the conflicting policies seem to be in equipoise, or in which the context has extrinsic fascination, rather than for cases whose opinions offer tight little monographs on various aspects of procedure. After all, a student’s preparation and participation in class discussion frequently are in direct proportion to the extent to which the materials are interesting and involving. The notes and questions that follow nearly every principal case have been designed for the most part to encourage deeper analysis of the problems raised in the principal cases rather than to fill the student with additional detail. At the same time, we have tried to provide sufficient and selective references to secondary sources for the student who wishes to look further. We have not aimed at a “hard” book. Civil procedure is sufficiently mysterious to law student that its ability to challenge survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. In the textual survey in Chapter One, in the long note on “the nature of the trial process” in Chapter Fourteen and in briefer introductions to other sections of the book, we have tried to tell students where they are going, and through extensive cross-referencing and questions we have tried to force them to review where they have been. We have not concentrated on the law of any one jurisdiction, although there is substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. In general the book operates on a comparative basis, except in contexts in which this approach has more limited utility than an in-depth exploration of a single system. A careful attempt has been made to strike a balance between exploration of underlying philosophical problems and analysis of day-to-day matters that arise frequently in office practice or in the courts. Our theory is that a mixture of both is necessary to give students a comprehensive understanding of procedure. How else can they learn why, even today, after so many y ears of study, revision, and reform, major proposals for alterations of the adjective law are still being made, and, undoubtedly, will continue to be made in the years to come? In addition, considerable use has been made of historical material, not only when it is directly relevant to today’s system, as in the study of the right to jury trial, but also in contexts in which it is necessary for a true grasp of the basic problems. Because courses in civil procedure vary greatly not only as to the hours allotted but also as to whether they are mandatory or optional and as to the year during which students are expected to take them, the materials in this edition are designed to provide maximum pedagogical flexibility. The cases and subjects covered have been selected primarily for a comprehensive, year-long course beginning in the first term of the law student’s first year; yet they may easily be divided into two or more quite different subjects to be given either as preliminary or advanced courses. The first chapter of this casebook sets forth a basic, textual statement of a procedural system’s framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. This, we believe, is an important function of a course in procedure, especially when it forms part of the first year curriculum. The textual analysis, which can be assigned for study with little or no class discussion, is followed by a series of illustrative cases designed to raise the basic problems of a procedural system, to illustrate the interplay among its various aspects, and to highlight many of the pints in the earlier text. An effort has been made to select cases that can be handles with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let students form some idea as to the nature of the litigation “forest” before attempting to make them master any of its “trees.” After the first chapter, the structure of the book proceeds in a chronological fashion. The authors believe that this is the most logical way to teach civil procedure because it permits students to see the evolution and maturation of the litigation process. Furthermore, by putting personal and subject-matter jurisdiction and the materials dealing with the history of civil procedure before such subjects as pleading, joinder, and discovery, first year students are given some “breathing time” in which to absorb enough substantive law from torts, contracts, and property courses to enable them to grasp the significance of such matters as “pleading a cause of action,” “contributory negligence,” and “joint and several interests.” Finally, the authors have concluded that despite its conceptual difficulty, personal jurisdiction is a much more teachable and exhilarating introduction to civil procedure than is pleading. The chapters on jurisdiction include an extensive treatment of the federal courts. An investigation of a single system in detail seems the best way to impress students with the significance attached by courts to the concept of jurisdiction over the subject matter. The length of this material is greater than is customary in a civil procedure book, but part of it may readily be treated at the end of the course or be eliminated. We believe that without a working knowledge of such concepts as diversity of citizenship and supplemental jurisdiction, the procedural ramifications of the Erie doctrine and such indisputably procedural problems as joinder cannot be properly understood. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms (as many procedure casebooks do) would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with not substantial saving in time and probably at a cost in comprehension. At the same time we have eschewed the temptation to overcompensate for the disappearance of courses in equity; we have not attempted to cover the substantive doctrines of that discipline in a historical note. Although we believe history is invaluable to the study of modern procedure, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The materials in this volume refer to and are augmented by a Supplement, which contains not only the federal statutes and rules governing procedure, as is traditional, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance students are able to see the different solutions put forth for particular procedural problems and are induced to explore reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. Use of the Supplement has the added advantage of permitting teachers and students to keep abreast of interesting alterations in the oftenchanging statutes and rules governing civil procedure, without constant revision of the casebook itself. All teachers of civil procedure are well aware of how difficult it is for student to grapple with problems in the abstract; for example in the field of pleading they may have only a vague notion of what a pleading looks like. The Supplement therefore also contains a litigation timechart and an illustrative problem, showing how a case develops in practice and samples of the documents that might actually have formed a portion of the record. It is important to note that these samples are not designed as models to be emulated. To the contrary, they often contain defects intended to induce students to criticize them in light of knowledge they have obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. Except in a few situations, the materials from the Sixth Edition have not been significantly shortened in preparing the Seventh Edition. With regard to footnotes: the same numbering appears in the casebook as appears in the original sources; editor’s footnotes are indicated by letters.
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Neglected Stories: The Constitution and Family Values
Peggy C. Davis
In a powerful challenge to the belief that the Constitution has nothing to do with the individual freedoms that comprise family rights, Peggy Cooper Davis argues here that the constitutional amendments after the Civil War reflect a profound appreciation of the political, social, and personal worth of family autonomy. She draws upon what she calls the "motivating stories" of the Fourteenth Amendment to show that the Reconstruction legislators who sponsored it understood family rights as aspects of liberty that were fundamental to the proper definition of freedom and citizenship. This new understanding of family rights developed as men and women - black and white, Southerners and Northerners - came to appreciate the enormity of slavery's denial, even destruction, of family life. Davis also explores the "doctrinal stories" the Supreme Court has told to justify or strike down restrictions on liberty with respect to work, marriage, procreation, parenting, and sexuality and family planning - and the stories of the litigants who wanted to live, work, marry, love, and parent as they chose. These "neglected stories" are woven together in a strong new constitutional argument that gives us at long last a framework in which we can have sensible social and political debate about just what we mean when we say "family values."
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Mortal Peril: Our Inalienable Rights to Health Care?
Richard A. Epstein
In this seminal work, distinguished legal scholar Richard Epstein daringly refutes the assumption that health care is a “right” that should be available to all Americans. Such thinking, he argues, has fundamentally distorted our national debate on health care by focusing the controversy on the unrealistic goal of government-provided universal access, instead of what can be reasonably provided to the largest number of people given the nation’s limited resources.With bracing clarity, Epstein examines the entire range of health-care issues, from euthanasia and organ donation to the contentious questions surrounding access. Basing his argument in our common law traditions that limit the collective responsibility for an individual’s welfare, he provides a political/economic analysis which suggests that unregulated provision of health care will, in the long run, guarantee greater access to quality medical care for more people. Any system, too, must be weighed on principles of market efficiency. But such analysis, in his view, must take into account a society-wide as well as an individual perspective. On this basis, for example, he concludes that older citizens are currently getting too much care at the expense of younger Americans.The author’s authoritative analysis leads to strong conclusions. HMOs and managed care, he argues, are the best way we know to distribute health care, despite some damage to the quality of the physician-patient relationship and the risk of inadequate care. In a similar vein, he maintains that voluntary private markets in human organs would be much more effective in making organs available for transplant operations than the current system of state control. In examining these complex issues, Epstein returns again and again to one simple theme: by what right does the state prevent individuals from doing what they want with their own bodies, their own lives, and their own fortunes?Like all of Richard Epstein’s works, Mortal Peril is sure to create controversy. It will be essential reading as health-care reform once again moves to the center of American political debate.
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Proceedings of New York University 49th Annual Conference on Labor
Samuel Estreicher
This volume contains papers presented at the 49th Annual Conference on Labor held at New York University. This long-standing conference brings together government officials; representatives of companies, labor unions, and employees; lawyers; and human resources specialists. In this vital forum, participants discuss important developments in U.S. labor law and human resources affecting the American workplace and share new ideas and perspectives for improving the practice. The chapters in this volume cover both recent developments and the very current issues likely to play a part in future developments. Topics discussed include e-mail policies, pre-dispute arbitration agreements, affirmative action after Adarand, and anti-workplace romance policies. The list of contributors comprises professors as well as attorneys for the Department of Justice, private firms, and corporations. The papers contained in the Proceedings will assist and appeal to all concerned with contemporary labor law issues in general and in particular with how the United States is considering these issues.
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The New Federalism: Can the States Be Trusted?
John A. Ferejohn and Barry R. Weingast
The New Federalism investigates whether returning a variety of regulatory and police powers back to the states will yield better government. It poses the provocative question, Can the states be trusted? and emerges with a qualified yes. This book should be an invaluable resource to federal and state policymakers alike. In recent years, the growth of the federal government and its failure to resolve many major problems have ignited a serious new debate. Some scholars and policymakers suggest that reinvigorating American federalism—returning a variety of regulatory and police powers back to the states—may better solve many of these problems. Others claim that it will gut policies or cripple national regulation. This book confronts these issues as it investigates the central question of the new American federalism: Will it yield better government, in doing so it poses the provocative question, Can the states be trusted? Proponents of greater federalism argue that it creates competition and fosters the “laboratory of the states.” Opponents claim that decentralizing power to the states will lead to a “race to the bottom.” The contributors to the volume examine the current state of knowledge and evidence about both sides of the argument and offer: a historical and constitutional perspective that raises important questions for the contemporary debate; the main lessons of modern economics applicable to the new federalism; evidence on interstate competition in three important policy domains: welfare, the environment, and corporate law; an outline of the relative merits of a statutory versus a constitutional basis for the new federalism. The authors The New Federalism: Can the State be Trusted? conclude that the answer is a qualified yes. The studies in this volume find little evidence for a race to the bottom in three major policy domains. This book should be an invaluable resource to federal and state policymakers alike.
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Looking at Law School: A Student Guide from the Society of American Law Teachers
Stephen Gillers
The indispensable guide for anyone considering law school—now brought completely up-to-date. Since its original publication, Looking at Law School has come to be recognized as essential reading for anyone contemplating becoming a lawyer. Now revised throughout and with new chapters on “Law and Economics” and “The Classroom Climate,” this acclaimed book gives prospective students an advance look at the process of legal education—the stresses and strains of attending law school as well as the courses that are taught. Shedding light on a truly broad range of subjects, eminent professors from leading institutions explain what law schools expect from students and what students can expect from law schools and a legal career. Divided into four main sections—deciding to go to law school, the law school experience, the first year of law school, and special courses and course selection—this essential guide features in-depth discussion on such topics as: applying and gaining admission to law school; financing a legal education; the situation of women and minority students; the content of courses in the crucial first year; innovative teaching programs; the secrets of style in legal writing; issues of legal ethics and philosophy; and much more on every aspect of legal training and practice.
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Regulation of Lawyers: Statutes and Regulations
Stephen Gillers and Roy D. Simon Jr.
Prior edition of Regulation of Lawyers: Statutes and Regulations.
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People of the Book: Canon, Meaning and Authority
Moshe Halbertal
People of the Book offers an introduction to Jewish hermeneutics, and conveys the importance of the tradition to both general and academic readers. While Scripture is at the centre of many religions, among them Islam and Christianity, this book inquires into the function, development, and implications of the centrality of text upon the Jewish community, and by extension on the larger question of canonization and the text-centered community. It is a commonplace to note how the landless and scattered Jewish communities have, from the time of the destruction of the Temple in Jerusalem in 70 AD until the founding of modern Israel in 1948, cleaved to the text and derived their identity from it. But the story is far more complex. The shift from the Bible to the Torah, from biblical religion to rabbinic Judaism mediated by the Sages, and the sealing of the canon together with its continuing interpretive work demanded from the community, amount to what could be called an unparalleled obsession with textuality. Halbertal gives us insights into the history of this obsession, in his narrative.;The book offers an introduction to Jewish hermeneutics, and aims to convey the importance of the tradition to a wide audience of both academic and general readers. Halbertal provides a panoramic survey of Jewish attitudes toward Scripture, organized around problems of normative and formative authority, with an emphasis on the changing status and functions of Mishnah, Talmud, and Kabbalah. Weaving complex issues of interpretation into his own plot, he animates ancient texts by assigning them roles in his own narrative.
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The Rights of the Poor: The Authoritative ACLU Guide to Poor People's Rights
Helen Hershkoff and Stephen Lofreddo
Using a simple question-and-answer format, Helen Hershkoff and Stephen Loffredo provide a comprehensive and up-to-date account of the rights of the poor. They examine federal and state programs providing income support and medical services as well as federal programs providing food assistance and federally subsidized housing programs. They also discuss access to justice, rights in public places, and voting rights. Hershkoff and Loffredo point out that given the present conservative political climate, it is now more important than ever for poor people to know their rights under law. To that end, they explain how poor people can use the law to obtain services necessary for basic living: income support, food assistance, health care, housing, and education. The eligibility requirements for all programs for the poor are complex and changeable. The Welfare Reform Act of August 1996 further complicates the rules and makes this ACLU guide even more essential. Written for poor people and their advocates, as well as for anyone interested in the current status of the "War on Poverty," this book also describes how poor people can use the law to participate more fully in political and community life.
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Banking Law and Regulation
Jonathan R. Macey and Geoffrey P. Miller
In this second edition, Macey and Miller integrate the many recent developments in the field while they tackle the fundamental question of the role of the bank in a modern industrial society. They encourage students to explore the nature, content, and scope of the rules regulating the banking industry in light of economic and social purposes. For this edition, each chapter was revised to incorporate: changes to interstate banking (Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994) Kaye, Scholer freeze order the BCCI scandal community reinvestment issues swaps and other financial derivative instruments. The chapter on capital regulation has also been greatly expanded. A comprehensive introduction that details: the history of the American banking industry nature of the banking firm basic rationale for banking regulation central structure of banking regulation and alternatives from other countries. From this foundation, The authors progress to more specific topics: bank holding companies in geographic limitations securities powers of banking institutions n examination and enforcement n bank failure n international banking For a fresh new look at the enduring issues of banking as the industry experiences significant change, turn to Banking Law and Regulation, Second Edition
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The Last Word
Thomas Nagel
If there is such a thing as reason, it has to be universal. Reason must reflect objective principles whose validity is independent of our point of view—principles that anyone with enough intelligence ought to be able to recognize as correct. But this generality of reason is what relativists and subjectivists deny in ever-increasing numbers. And such subjectivism is not just an inconsequential intellectual flourish or badge of theoretical chic. It is exploited to deflect argument and to belittle the pretensions of the arguments of others. The continuing spread of this relativistic way of thinking threatens to make public discourse increasingly difficult and to exacerbate the deep divisions of our society. In The Last Word, Thomas Nagel, one of the most influential philosophers writing in English, presents a sustained defense of reason against the attacks of subjectivism, delivering systematic rebuttals of relativistic claims with respect to language, logic, science, and ethics. He shows that the last word in disputes about the objective validity of any form of thought must lie in some unqualified thoughts about how things are—thoughts that we cannot regard from outside as mere psychological dispositions.
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The Values of Campaign Finance Reform
Burt Neuborne
Debate over “campaign finance reform” is complicated by a tendency to use this term as a metaphor for an array of underlying values. Without careful identification of these values, discussion of campaign finance reform risks drifting into a series of emotional exchanges among people who are really talking about different things. Moreover, since the values are occasionally in conflict, decisions about whether to seek to reform the campaign finance system, and what the reformed system should look like, require a careful catalogue of the values at stake, and a recognition that different versions of campaign reform advance, and retard, particular values. Finally, attention to underlying values is particularly important in the campaign finance area because of the all-too-human tendency to support or oppose campaign reform on the basis of its projected impact on next year’s election. Only careful attention to values can free us from approaching the area from the narrow prism of short-term political interest.
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Foundations of Environmental Law and Policy
Richard L. Revesz
This volume in the Interdisciplinary Readers in Law Series brings together 40 readings from lawyers, economists, environmentalists, and legal scholars, to help introduce readers to the major theoretical approaches in the field of environmental law and policy. The selections have been extensively edited to facilitate accessibility, and each chapter has an introduction highlighting the most important contributions of the readings. The chapters end with an extensive set of notes and questions, designed both to provide a deeper understanding of the readings, as well as to introduce and critique a broader set of perspectives.
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Law and the American Health Care System
Rand E. Rosenblatt, Sylvia A. Law, and Sara Rosenbaum
Law & the American Health Care System provides a sophisticated, teachable introduction to health care organization, financing, & quality in the U.S. today, focusing on the evolving legal framework in which health care is practiced & delivered. Its main strength is its consistent focus on the interaction of market forces, government health policy & legal developments, & its attention to conceptual frameworks for understanding. Initial chapters cover the major areas of contemporary health law: access to care; financing & organization of care; quality of care. Later chapters explore these areas in three particular contexts: long-term care; HIV; reproductive health services.
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Do Deficit$ Matter?
Daniel N. Shaviro
Do deficits matter? Yes and no, says Daniel Shaviro in this political and economic study. Yes, because fiscal policy affects generational distribution, national saving, and the level of government spending. And no, because the deficit is an inaccurate measure with little economic content. This book provides an invaluable guide for anyone wanting to know exactly what is at stake for Americans in this ongoing debate.
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Niche Insurance Companies
Richard B. Stewart, Richard S.L. Roddis, and Barbara D. Stewart
This report is about niche companies in the personal property-casualty insurance market. The report introduces the niche idea and sets our case histories of several niche companies. Then the report draws conclusions about how and why such companies come into existence, about how they work and about how they affect the rest of the market. A niche insurance company is created to help people in the niche. Often it is a self-help effort by the people themselves. But this report focuses on the broader impact of such companies—on what they do to and for the market in general. For niche companies lead the whole market to evolve and to renew itself. They are agents of change. They do it by breaking through the uniformity and rigidity that usually prevail in insurance markets. Their breakthrough forces change upon the others. What prompts our analysis is a growing tendency of federal and state governments to address some current insurance issues by requiring uniformity that has, in the past, created the need for niche insurance companies. The Niche Solution to Market Neglect The forces of uniformity insurance have always been strong, for valid business and regulatory reasons. Those forces have also tended to make the insurance market rigid and resistant to change. It has often happened that the uniform and unchanging market left out some people who wanted in. They were not able to get insurance at all, or not on terms they considered fair. Sometimes those people devised a solution. If followed a recognizable, recurring pattern. Niche companies have appeared throughout the history of insurance in America. Among their customers were the members of auto clubs and farm bureaus, military officers, government employees, teachers, older people, wealthy people, non-drinkers and Japanese Americans. Their stories have a common thread. Niche companies were created when the established sellers of insurance would not or could not respond to the needs of a particular group of insurance buyers. Every niche company began as a practical solution to a real problem of customer neglect. Many were self-help efforts. While neglect got them started, two other qualities kept them going. The report calls those qualities identity and access. Identity was traceable to some characteristic the people in the niche had in common, often one that set them somewhat appear. The common characteristic made them recognizable as a distinct group. The characteristic was always something about them other than their need for insurance. It could be an occupation or a hobby or club membership or nationality or religion. Identity fostered loyalty between the niche company and its customers, loyalty running both ways. Loyalty on the part of the company meant sustained focus on the niche. Focus led to expertise in underwriting, marketing and loss control. Loyalty on the part of customers meant they stuck with the company. Such stability lowers costs. When working well, these qualities reinforced each other in a virtuous circle. A big item of expense and difficulty for any insurance company is distribution or access to the customer. Natural and easy access to niche members led to efficient distribution of insurance by the niche company. In the history of nearly every niche company, the founder was already connected with the neglected group. Doors were opened, and sometimes the group formally endorsed or sponsored the new insurance company. In one way or another, the close relationship between the company and its customers simplified distribution and lowered costs. The Niche Company as Agent of Change When market uniformity and rigidity leave an unmet need and a niche company fills it at a profit, sooner or later that fact becomes known. Other companies, including the established ones whose neglect of the niche created the market opening, then want the niche clientele and start competing for it. Insurance is a business with no meaningful patent, copyright or other special protection from competitive pursuit and emulation. Any innovation in the insurance marketplace can find the fruits of its creativity, effort and risk-taking appropriated by larger, better capitalized competitors. It may seem unfair, but in the real world of the insurance business, that is the way competition works. But sometimes the niche innovator develops cost and service advantages that are too great for established providers to match. The unmatched advantages protect the innovator’s niche position and give it a secure base from which to expand into the general market. At that point, the established companies find themselves on the defensive on their own turf. They have to improve their own operations just to hold onto the business they have. In that way, the niche company breaks through uniformity and market rigidity, and it does more than simply survive as an exception. It makes the whole market take notice and adapt. It is a catalyst for change. That is due to the niche company characteristic of efficient access to customers. Efficient access means lower costs of distribution and of overhead in general. Lower costs mean lower prices. Challenged by that kind of competition, the established companies have a choice: get their own costs down or lose business. Niche company formation is an essential step in the competitive process of creative destruction by which the insurance market evolves. Niche companies are not the only forces for change in insurance, but in the history of the personal lines of property-casualty insurance, they have been the most important one. Today, over half of personal lines is written by companies with niche origins. Public Policy and Niche Insurance Companies The uniformity and rigidity addressed by niche insurance companies grew out of practical business and regulatory concerns. For most of the history of the insurance business, uniformity and rigidity were based on agreements among competing insurance companies. The agreements covered premiums, policy forms, agent compensation and underwriting criteria. Their purpose was to prevent insolvency. Until the end of the Second World War, such agreements were lawful in insurance, and they covered nearly all of the market. Even after explicit agreements became illegal, many of the old practices and attitudes lingered, both in the business and in its regulation. Starting after the Second World War, the state regulators of insurance prodded by anti-trust minded federal officials, loosened their support for uniform pricing and underwriting in the cartel style. Price competition began to look like a good idea. With growing regulatory tolerance and even encouragement, more efficient sellers of personal insurance took over larger shares of the market. By the late 1960s and early 1970s, most state insurance commissioners and most of the industry had come to favor competition and the abolition of the kinds of rate regulation that restrained competition. It was a complete turnaround on the issue of competition versus uniformity for both the business and its regulators. With the emphasis on competition, companies sought out neglected market segments and other pockets of profit. Very few niche insurance companies came into being because the pre-conditions—chiefly neglect—did not exist. The swing from government support for uniformity to government support for competition was a momentous change for insurance regulation. It was a full swing of the pendulum between two competing basic principles of insurance—rating everybody the same and rating each risk according to its propensity to cause loss. It was also a full pendulum swing between two competing principles for government’s role with respect to any regulated business—prescribing how the business is to be run and encouraging the market to work it out. In both the general government-business dimension and in the specific regulation-insurance dimension, such swings in public policy cannot be expected to go on forever in one direction. None of the ideals involved is valid at all times and to the total exclusion of its opposite. The postwar movement toward competition in insurance indeed did not go on forever. It ended in the late 1970s, when people saw that competition did not solve all their problems with insurance rates—particularly the problems of regressiveness in auto liability insurance rates and of premium inflation generally. Since then, while industry sentiment has continued to favor competition, government attitudes have swung somewhat away from competition, at least enough to make the enforcement of uniformity of pricing and underwriting once more a possibility. Government-enforced uniformity is offered with increasing frequency today as a remedy for various insurance ills, be they company insolvencies or rising premium rates or the desire for subsidization of one market segment by another. The pendulum of public policy has not moves as far against competition as it might, but unmistakably it has moved.
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Human Rights Law
Philip G. Alston
This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.
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The Dictionary of Global Culture
Kwame Anthony Appiah, Henry Louis Gates Jr., and Michael Colin Vazquez
As the world’s axes of population, power, and commerce shift from North to South and from West to East, the old Eurocentric model of culture is giving way to a new global paradigm. This dictionary, which has been compiled by two of our most esteemed scholars, is the first work of its kind to devote equal emphasis to the cultural contributions of the non-Western world alongside those of Europe and North America. Prepared by regional experts from five continents (including both scholars from other cultures and Western scholars of other cultures), the book’s more than 1,200 entries include: Chinua Achebe, Aeschylus, Bo Diddley, Denis Diderot, Martha Graham, The Great Leap Forward, Igbo, Inanna, Jainism, Henry James, John Milton, Yukio Mishima, Ramayana, Raphael, François Toussaint L’Ouverture, Trail of Tears, Zionism, Zydeco. Vast in scope and lucidly written, The Dictionary of Global Culture is an indispensable reference for students, businesspeople, or anyone seeking a foothold in the civilization of the next millennium.
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Color Conscious: The Political Morality of Race
Kwame Anthony Appiah and Amy Gutmann
In America today, the problem of achieving racial justice--whether through "color-blind" policies or through affirmative action--provokes more noisy name-calling than fruitful deliberation. In Color Conscious, K. Anthony Appiah and Amy Gutmann, two eminent moral and political philosophers, seek to clear the ground for a discussion of the place of race in politics and in our moral lives. Provocative and insightful, their essays tackle different aspects of the question of racial justice; together they provide a compelling response to our nation's most vexing problem. Appiah begins by establishing the problematic nature of the idea of race. He draws on the scholarly consensus that "race" has no legitimate biological basis, exploring the history of its invention as a social category and showing how the concept has been used to explain differences among groups of people by mistakenly attributing various "essences" to them. Appiah argues that, while people of color may still need to gather together, in the face of racism, under the banner of race, they need also to balance carefully the calls of race against the many other dimensions of individual identity; and he suggests, finally, what this might mean for our political life. Gutmann examines alternative political responses to racial injustice. She argues that American politics cannot be fair to all citizens by being color blind because American society is not color blind. Fairness, not color blindness, is a fundamental principle of justice. Whether policies should be color-conscious, class conscious, or both in particular situations, depends on an open-minded assessment of their fairness. Exploring timely issues of university admissions, corporate hiring, and political representation, Gutmann develops a moral perspective that supports a commitment to constitutional democracy. Appiah and Gutmann write candidly and carefully, presenting many-faceted interpretations of a host of controversial issues. Rather than supplying simple answers to complex questions, they offer to citizens of every color principled starting points for the ongoing national discussions about race.
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Swiss Company Law: Translation of the Official Text of the Portions of the Swiss Civil Code and Code of Obligations Relating to Companies and Other Business Associations
Bruno Becchio, Urs Weninger, Alfred S. Farha, and Stanley Siegel
This second edition follows the success of its predecessor, which was well received and respected by practitioners, academics and business people of Swiss and non-Swiss origin. It covers the changes in the company law provisions of the Swiss Code of Obligations originally adopted in 1881. The authors have reviewed and updated the entire book, including the relevant general provisions of the civil code and incorporating the 1985 revisions to the law regarding Stiftungen (foundations). A departure from the first edition is the overall emphasis on American (U.S.) legal terminology, although in a few instances reference to English (U.K.) parlance is maintained for comparative purposes. The revision of the Aktienrecht (Share Law), which represents the portions of the Code relating to the most common Swiss corporate organizational form, the Aktiengesellschaft (commonly abbreviated as AG or SA), became effective in 1992. It is primarily this event that prompted the revision of this book. The relevant sections of the Code (Arts. 620 to 763) have been fully re-translated, incorporating the revisions, together with selected relevant new provisions from other related laws. The revised translation of the statutory provisions is accompanied by an in-depth translation addressing current issues, including, besides the substance of the revision of the code, comparative aspects of both the laws of the European Union and the United States, including accounting rules. Also revised are the charts and tables, including the `synoptic tables' which have proved to be of particular value to practitioners.
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Civil Litigation in New York
Oscar G. Chase and Robert A. Barker
The wide acceptance of the second edition has been a source of satisfaction to each of us. We are pleased to have played a role in introducing many law students to the intricacies of civil litigation rules in New York State. We continue to believe that New York’s litigation system is worthy of careful study, even by students who have already completed a basic civil procedure course. They will find much in this volume that goes beyond the basic principles to which the first-year course has exposed them, as well as an introduction to the many points at which New York departs from the Federal Rules of Civil Procedure. A third edition is necessary because of the many changes in practice that have occurred during the six years that have passed since the completion of the second edition. We have done our utmost to insure a reliable incorporation of them into the current volume. We invite all users of this volume—students as well as professors—to alert us to any errors or suggestions for improvement. . . . Civil litigation in New York is complex and demanding. It calls on such advocacy skills as oral argument, brief writing and cross-examination, but even more does it demand familiarity with the “law” of litigation. The purpose of this book is to help you learn that law in the context in which an advocate must apply it. We hope that you will not only become familiar with the rules of New York practice but that you will develop a sense of how they can be creatively applied. To that end we have included in each chapter litigation problems which are designed to help you put the law into a practical perspective. The problems are based on realistic situations (sometimes on actual cases) and therefore raise the sorts of difficult issues which can arise in the course of any action. Usually, you will find that we have presented the problem prior to the material which bears on it. This will hopefully make the material less abstract and more involving. Many of the problems do not have a single answer which is correct in an absolute sense. As with most legal issues there are various possible solutions, each with its own supporting arguments. Please approach them in that spirit. In keeping with its purposes, the book is organized roughly along the path litigation normally takes, starting with the rules governing the choice of forum. Since there is no route which all lawsuits must follow, and since there are some rules of litigation (e.g., those governing motion practice) which are relevant to several stages of a lawsuit, you should not take the linear organization we have adopted as exemplifying all lawsuits or as an approach you would always follow in practice. Use it, rather, to gain and keep a general sense of litigation as a process with a beginning, middle and clearly defined goal. The variety of paths litigation can take brings us to another point about the study of it. The flexibility of modern civil procedure, including that of New York, allows and therefore requires the lawyer to make frequent tactical choices. Should one make a particular motion? Obtain a provisional remedy? Seek discovery? If so, what kind? How should the pleading be drafted? It is our view that an effective advocate knows what the ethical choices are in every situation and dose his or her best to pick the alternative which will maximize the client’s chances of success. Thus, as you read the cases and problems which follow, we urge you to think about and evaluate the choices that the litigants made. The management of litigation system in pursuit of success is not the only challenge to the student or attorney. Equally fulfilling, if not more so, is participation in the ongoing effort to reform and improve the system. This book goes to press during a period of widespread criticism of civil litigation as a method of resolve disputes. How the system can and should be changed in response to its critics is therefore a particularly timely issue now; there is no doubt that the search for improvement will continue during the professional lifetime of today’s student. Thus, these materials frequently encourage you to step back from the process and ask “How can we make this better?”
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The Logic of Subchapter K: A Conceptual Guide to the Taxation of Partnerships
Laura E. Cunningham and Noël B. Cunningham
This course book is designed to guide students through the conceptual framework of subchapter K. The material avoids neither the hard questions nor the conceptual difficulties, leaving students with a firm understanding of partnership taxation. Each chapter begins with a basic explanation of the relevant provisions and the roles that they play in the overall structure of subchapter K. It includes an increasingly detailed discussion of the specific rules, including multiple illustrative examples. Each chapter builds on the earlier chapters, leading the student through subchapter K. It is appropriate for J.D. or graduate-level law school courses on partnership taxation.
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