Faculty Books & Edited Works

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Intellectual Property: Trademark, Copyright, and Patent Law: Cases and Materials

Rochelle C. Dreyfuss and Roberta Rosenthal Kwall

This casebook applies the principles of intellectual property protection to fact patterns arising in a variety of industries, including music, art, computers, biotechnology, and industrial design. The text takes a comparative approach to intellectual property that emphasizes the commonalities and differences in the theories underlying the regimes of trademark, copyright, and patent law. State law is integrated into the discussion, comparing laws and raising issues of pre-emption as they naturally occur in cases. A comprehensive teacher's manual provides answers to the problems, discusses each case in detail, and includes background materials, hypotheticals, and suggested readings.
Competition Policy and the Transformation of Central Europe

John Fingleton, Eleanor M. Fox, Damien Neven, and Paul Seabright

This book examines the implementation of competition policy during the 1990s in Hungary, Poland and the Czech and Slovak Republics. It looks at the economic predicament of countries in transition, considering how far this has required the state actively to regulate the competitive process. It considers the extent to which initial economic and political conditions have constrained the involvement of the state in such activity. It then analyses the statutes of the countries and the structure of the institutions established to implement competition policy. A comprehensive discussion of the case law and the experience of policy in practice is used to suggest lessons for the task of competition policy, both in these countries and in others undergoing the transitions from central planning. This book will be valuable not just for those interested in competition policy, but for all students of the political economy of transition.
Regulation of Lawyers: Statutes and Regulations

Stephen Gillers and Roy D. Simon Jr.

Prior edition of Regulation of Lawyers: Statutes and Regulations.
Payment Systems and Credit Instruments

Clayton P. Gillette, Alan Schwartz, and Robert E. Scott

Gillette, Schwartz and Scott's casebook provides detailed information on payment systems and credit instruments. The casebook provides the tools for fast, easy, on-point research. Part of the University Casebook Series®, it includes selected cases designed to illustrate the development of a body of law on a particular subject. Text and explanatory materials designed for law study accompany the cases.
The Rights of Families: The Authoritative ACLU Guide to the Rights of Family Members Today

Martin Guggenheim

In this new ACLU handbook, the authors use a simple question-and-answer format to clearly and concisely explain the legal rights of members of today's rapidly changing families. Family law over the last quarter of a century has undergone a revolution. Stepparents, adoptive parents, foster parents, single parents, grandparents, and gay parents have come forward to challenge the traditional definition of a family based on blood ties alone. Once taboo, divorce has shed its social stigma, leading to new laws regarding the division of property and alimony among divorced people. And increased national attention has been focused on abuse and neglect of children in their homes. This book is designed to help readers understand where the law now stands. Part 1 looks at the human and financial consequences of a married couple's divorce or the separation of unmarried partners, describing the law in such areas as child custody, visitation, child support, property division, and alimony. Part 2 looks at the law that applies when the state intervenes either temporarily or permanently to protect children from harm by their parents. Part 3 looks at how families are formed, especially families that differ from the traditional nuclear family: adoptive, gay and lesbian, and single-parent families as well as families headed by a grandparent. Few areas of law have changed more rapidly than family law. This is the best guide available for up-to-date information and advice.
Labor Law: Cases, Materials, and Problems

Michael C. Harper and Samuel Estreicher

New authors Michael Harper and Samuel Estreicher tackle the tough questions central to a modern course in Labor Law in this extensive revision of Bernard Meltzer and Stanley Henderson's long respected casebook- LABOR LAW: Cases, Materials, and Problems. Retaining a rigorous analytical focus on the arguments lawyers make before the NLRB, In courts, and in Congress, The Fourth Edition will challenge your students with questions such as Why have unions in private firms declined from 35 percent of American workers in the 1950s to less than 12 percent today? New features include: pervasive integration of law and policy greater emphasis on issues of labor law reform new chapters on labor economics and labor theory new narratives, notes, and questions throughout a better balance between regulatory and deregulatory, and labor, management, and individual worker perspectives to help your students better Understand The material, The new co-authors pay particual attention To The accessibility of this new edition through: streamlined editing of cases enhanced textual explanations of economics and comparative law materials captions for all note material explanations of note cases frequent references to theoretical and empirical debates in the academic literature carefull treatment of the evolution of labor law doctrine.
International Human Rights in Context: Law, Politics, Morals: Text and Materials

Henry J. Steiner and Philip G. Alston

International Human Rights in Context presents diverse materials consisting of extensive authors' text an dquestions; sharply edited primary materials ranging from intergovernmental or NGO reports to treaties, resolutions and decisions; and excerpts from secondary readings in law and legal theory, as well as other pertinent fields such as international relations, moral and political theory, and anthropology. The book introduces students to those organizing concepts and topics of public international law that are vital to understanding human rights issues. It stresses throughout the relationships among human rights norms, processes and institutions, as well as relationships between international and internal orders. The topics include civil and political rights, economic and social rights, intergovernmental and non-governmental institutions, universal and regional regimes, human rights and foreign policy, democratization, women's rights, self determination and autonomy regimes, individual criminal responsibility, and development. The book's broad themes include universalism and cultural relativism, rights or duties as organizing conceptions, the relevance of the private-public distinction, and transformed conceptions of statehood and sovereignty.
Legal Issues Presented by a Pilot International Greenhouse Gas Trading System: (Among Countries with Binding Emissions Targets under the FCCC)

Richard B. Stewart, Jonathan B. Wiener, and Philippe Sands

This report examines the legal issues arising from the possibility of establishing a pilot international trading system for greenhouse gas (GHG) emissions among a number of States. States have expressed interest in the possibility of establishing such a system for a variety of reasons. Initial experience with emissions trading systems indicates that such systems can be highly effective in meeting environmental targets at much lower cost than traditional types of regulation provided, as with any system of regulation, that monitoring and enforcement are adequate. Emissions trading systems can also increase transparency because they give sources, sequestration projects and governments a strong incentive to use publicly understandable, standardized methodologies for monitoring and reporting. Furthermore, emissions trading systems provide incentives for the transfer of technology and financial and other resources to projects, sectors and locations which offer the opportunity to reduce net GHG at lowest cost, and for the development of new technologies that reduce net GHG emissions. We recognize, however, that trading systems of the type described in this report would be innovative in international agreements and present novel institutional and administrative issues. The pilot trading system discussed in this report would include trading of energy sector CO₂ emissions, and might also include emissions of HCFCs, HFCs, PFCs and SF₆, all of which are relatively easy to monitor and verify. It would be desirable to include forest-sector CO₂ emissions and sinks, fossil-fuel methane (CH₄) and the tropospheric ozone precursor NOₓ, provided that appropriate assurances of monitory and verification were obtained. Eventually, as monitoring methods improve, the system could be extended to include other GHG emissions, expressed in CO₂ equivalents. The pilot trading system could be designed for an initial 15-20 year period. The report addresses a pilot system among a Group of States which are Members of an international agreement (Agreement). As a pilot programme, the trading system might begin with a relatively small but diverse group of States. Starting with a relatively small number of participants during the negotiation and early implementation of the Agreement will facilitate a successful learning process. Such a system might take one of the two basic forms. Under an Allowance Trading System, the Agreement would establish an overall group net emissions cap, and allocation of net emissions allowances among the Members, and institutional arrangements for trading allowances, monitoring net emissions and imposing sanctions for non-compliance. Under an Emissions Budget System, Members would commit themselves to limiting cumulative emissions during each of several successive multi-year budget periods. A Member’s reductions of emissions below the amount budgeted for a given budget period would generate savings that could be reserved for future use or traded. By way of introduction, it is important to stress two fundamental working assumptions underlying the report. The first assumption is that any international system for trading emissions between two or more States and their sub-national entities would be governed by international law, rather than by the national laws of any particular State. It is most unlikely that a State could accept that its rights or obligations under such arrangements could be governed by the national laws of another State. The second assumption is that any pilot international trading system would be established in accordance with and in the context of the 1992 United Nations Framework Convention on Climate Change (FCCC). The idea that separate arrangements might be adopted may theoretically exist, but Parties to the FCCC are not likely to establish an independent and potentially competing system that would risk undermining the FCCC. Building on these two assumptions, one way of initiating a pilot emissions trading system might be for those FCCC Parties which have committed themselves to quantitative GHG emissions limitations and are interested in participating in such a system to conclude an international Agreement on the system’s structure and operation, in accordance with and in the context of the FCCC. In any event, such an Agreement could not, of course, affect existing obligations under the FCCC. The ‘learning by doing’ experience under a pilot trading system might provide the basis for enlarging the system through the participation of additional Members, as discussed below, and eventual participation of most or all Parties to the FCCC. The precise path by which such a pilot international trading system might evolve into a more permanent and comprehensive system is a matter beyond the scope of this report. It is also possible that certain industries might agree to an industry-wide emissions limitation and trading system independent of, or linked to, the Group trading system analysed in this report. This report discusses the principal legal, institutional, and organizational issues presented and options available for implementing a pilot international GHG trading system. It does not seek to reach firm conclusions as to how to proceed, a matter lying beyond the scope of this report. The remainder of this report is organized as follows Part II outlines the basic element of possible pilot trading systems and the organizational structure needed to establish and support them. Part III explains how the trading systems discussed in this report differ from existing approaches to joint implementation (JI) and activities implemented jointly (AIJ). Part IV analyzes in greater detail a number of key design, organizations, and legal issues that must be resolved in order to implement the trading systems successfully.
Is NAFTA Constitutional?

Bruce Ackerman and David Golove

By a vote of 61 to 38, the Senate joined the House in declaring that “Congress approves…the North American Free Trade Agreement.” The vote was virtually unnoticed, since the real battle over NAFTA was in the House. But there is a puzzle here. The President, the Framers assure us, “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Whatever happened to the Treaty Clause? Bruce Ackerman and David Golove tell the story of the Treaty Clause’s being displaced in the twentieth century by a modern procedure in which the House of Representatives joins the Senate in the process of consideration, but simple majorities in both Houses suffice to commit the nation. This is called the Congressional–Executive Agreement, and is a response to a sea change in public opinion during and after World War II. This agreement substituted for a failed constitutional amendment that would have required all treaties to be approved by majorities in both Houses rather than by two-thirds of the Senate. The modern Congressional–Executive Agreement was self-consciously developed in order to make formal constitutional amendment unnecessary. So, is NAFTA constitutional?
Yugoslavia, the Former and Future: Reflections by Scholars from the Region

Payam Akhavan and Robert L. Howse

This book contains a unique collection of essays written by scholars from the former Yugoslavia, exploring the events that led to the devastating disintegration of their homeland. The scholars, who are from the different ethnic groups now in conflict, provide insightful, multicultural perspectives on the crisis. The essays lead readers to reconsider the assumptions behind the predominant western views of the post-cold war order and the place of ethnic conflict and ethnic nationalism in that order. Most of the authors point to the causes of the federal breakup and the war that are specific to the social, political, and economic situation of Yugoslavia as it evolved since Tito. The existence of these causes, largely ignored in western analysis of the crisis, questions the view that conflicting or overlapping claims of different ethnic groups must result in nationalism and national conflict. The variety of viewpoints—by scholars from Bosnia-Herzegovina, Croatia, Serbia, and Slovenia—provides a much-needed dialogue about the combination of forces, events, and personalities that led to the crisis and offers the opportunity to look ahead to a brighter future for the region. This book is essential reading for everyone who wants a better understanding of what caused the breakup of Yugoslavia, as well as the more general problems of nationalism and post-cold war international struggles. The contributors are Vojin Dimitrijevic, University of Belgrade; Dusan Janjic, University of Belgrade; Dusan Necak, University of Ljubljana; Albina Necak Luk, University of Ljubljana; Zoran Pajic, University of Sarajevo; Zarko Puhovski, University of Zagreb; Milorad Pupovac, University of Zagreb; and Dragomir Vojnic, University of Zagreb. Payam Akhavan is a legal adviser at the International Criminal Tribunal for the Former Yugoslavia in the Hague and was formerly a human rights investigator with the United Nations in the former Yugoslavia. Robert Howse, assist.
Treaty-Making and Australia: Globalisation versus Sovereignty?

Philip G. Alston and Madelaine Chiam

This book deals with issues such as: the nature and consequences of the globalisation process the resulting threat to Australia's sovereignty the impact of treaty-making on industry, the environment and the respect for human rights the role of Parliament and the States in the process and the response of other countries to these challenges.
Another Death in Venice

Kwame Anthony Appiah

The eminent barrister and amateur sleuth Sir Patrick Scott and his novelist wife Virginia return by the Orient Express to the scene of their honeymoon, Venice, the most visited city in the world. Their host is an old Etonian Italian American, Bernadetto di Montebello, whose family palazzo on the Grand Canal is the fashionable venue for the cultural and social élite of the ancient city. Effortless hospitality, delicious meals and carousing of such sophistication as only the very rich achieve - these delights are rudely curtailed when and Australian the Scotts have just met on the Orient Express is found floating in a canal. And the death soon overshadows the dinner parties at the home of Peggy Aschenheim, New York heiress and art-collector, and the quaffing of champagne at the fabulous Hotel Danieli, where Peggy tries to persuade Philip Bouncer, a Texan worth about half a billion dollars, to donate his art collection to the Metropolitan Museum in her native city. The Scotts are joined by a Chilean painter, whom Peggy has collected along with his work, and the dowager Lady Hawksworth, a famous beauty, whose husband has left an even larger fortune than Philip Bouncers'; and they come across a full complement of Venetians, from the magistrate investigating the murder - the charming and cosmopolitan Signor Montenari - to some of the seedier characters hanging about in the Piazza San Marco. The theft of legal papers from Sir Patrick's bedroom at the palazzo and the sudden fatal collapse of Philip Bouncer pitch Sir Patrick into his habitual role of 'professional amateur' private eye and into a final dramatic confronation with a line-up of sinister but distinguished suspects. Anthony Appiah, the author of two previous Sir Patrick Scott investigations, matches his Venetian scene with the elegance of his subtle storytelling in this exceptional novel of murder and retribution among the international haut monde.
Identities

Kwame Anthony Appiah and Henry Louis Gates Jr.

The study of identity crosses all disciplinary borders to address such issues as the multiple interactions of race, class, and gender in feminist, lesbian, and gay studies, postcolonialism and globalization, and the interrelation of nationalism and ethnicity in ethnic and area studies. Identities will help disrupt the cliché-ridden discourse of identity by exploring the formation of identities and problem of subjectivity. Leading scholars in literary criticism, anthropology, sociology, and philosophy explore such topics as “Gypsies” in the Western imagination, the mobilization of the West in Chinese television, the lesbian identity and the woman’s gaze in fashion photography, and the regulation of black women’s bodies in early 20th-century urban areas. This collection of twenty articles brings together the special issue of Critical Inquiry entitled “Identities” (Summer 1992), two other previously published essays, and five previously published critical responses and rejoinders, all of which is interrogated in two new essays by Michael Gorra and Judith Butler. Contributors include Elizabeth Abel, Kwame Anthony Appiah, Akeel Bilgrami, Daniel Boyarin, Jonathan Boyarin, Judith Butler, Hazel V. Carby, Xiaomei Chen, Diana Fuss, Henry Louis Gates, Jr., Avery Gordon, Michael Gorra, Cheryl Herr, Saree S. Makdisi, Walter Benn Michaels, Christopher Newfield, Gananath Obeyesekere, Molly Anne Rothenberg, Gayatri Chakravorty Spivak, Sara Suleri, Katie Trumpener, and Joseph Valente.
Indigenous Peoples of Asia

R. H. Barnes, Andrew Gray, and Benedict Kingsbury

The core of this collection is formed by papers first given in the Colloquium on Indigenous Peoples of Asia at St. Anthony’s College, Oxford, on 25 November 1989, and in the Asian Studies Centre Seminar on Indigenous Peoples of Asia held at St. Anthony’s College in Hilary Term, 1990. Authors were invited to extensively revise and update their papers, while other articles were commissioned. There followed the long process of editing and conferring with authors. In the best of circumstances it would be impossible to put together a completely representative book about the indigenous peoples of Asia given the uncertainties about who is or is not an indigenous person. In some cases we have regrettably been unable to identify anyone willing or able to contribute for a given region. In others, promised chapters never materialized. For this reason we have been unable to include planned chapters on Thailand and on the Nagas of the India-Burma border. We have been sensitive to the problem of appearing to speak for, that is to say, in place of, indigenous peoples. Although we have not completely overcome this problem, we never had any such intention, and this book is less guilty of doing so than it would have been had we not made an effort to avoid this pitfall. Some chapters give extensive attention to the statements made by indigenous persons and movements. One example of such a statement by the Alliance of Taiwanese Aborigines, I Chiang, Lava Kau, is reproduced as chapter 18. As the authors in this volume are of diverse backgrounds and hold differing views, the book has not main editorial line. It also makes no claim to providing definitive statement about a movement that, by virtue of being relatively new, has much of its history ahead of it. The present situation is very fluid, and it can be anticipated that the future will harbor many surprises.
Edge of the Knife: Police Violence in the Americas

Paul G. Chevigny

In Edge of the Knife, noted authority Paul Chevigny draws on years of field research to investigate torture and the use of deadly force, in addition to less drastic forms of violence, in New York, Los Angeles, São Paolo, Buenos Aires, Mexico City, and Kingston. Chevigny, author of the classic Police Power, examines the sources of official violence and offers possibilities for controlling it. What emerges from his work is an image of police violence as a reflection of the larger order of a city, and a convincing argument for persistent government action against crime—including accountability for police violence.
EU Law: Text, Cases, and Materials

Paul Craig and Gráinne de Búrca

Prior edition of EU Law: Text, Cases, and Materials.
Cases and Materials on Torts

Richard A. Epstein

The renowned Richard A. Epstein continues to lead your students to a thorough understanding of the moral, economic, and historical underpinnings of tort law in this new, completely updated and streamlined edition of his very successful casebook CASES AND MATERIAL ON TORTS, Sixth Edition, features expanded coverage of toxic torts and joint and several liability revised coverage of product liability the addition of new principal cases, including Rinaldo v. McGovern, Knight v. Jewett, In re Amoco Cadiz, Pacific Mutual Life Insurance Co. v. Haslip, and White v. Samsung Electronics America Key organizational changes-including a chapter that combines joint, several, and vicarious liability, And The grouping of all the materials on intentional torts in Chapter One-enhance the book's teachability As in previous editions, Epstein makes the highly technical issues of modern tort law manageable. In addition to case materials, he incorporates selections from modern legal scholarship that comment on issues raised but not necessarily fully resolved by the cases. Numerous notes discuss ambiguities in the present law And The desirability of alternative legal rules. Your students will find this book-in its reorganized and revised form-particularly readable. Take a fresh look at CASES AND MATERIALS ON TORTS, Sixth Edition-and its excellent Teacher's Manual-for use in your next Torts course
Simple Rules for a Complex World

Richard A. Epstein

Too many laws, too many lawyers—that’s the necessary consequence of a complex society, or so conventional wisdom has it. Countless pundits insist that any call for legal simplification smacks of nostalgia, sentimentality, or naiveté. But the conventional view, the noted legal scholar Richard Epstein tells us, has it exactly backward. The richer texture of modern society allows for more individual freedom and choice. And it allows us to organize a comprehensive legal order capable of meeting the technological and social challenges of today on the basis of just six core principles. In this book, Epstein demonstrates how. The first four rules, which regulate human interactions in ordinary social life, concern the autonomy of the individual, property, contract, and tort. Taken together these rules establish and protect consistent entitlements over all resources, both human and natural. These rules are backstopped by two more rules that permit forced exchanges on payment of just compensation when private or public necessity so dictates. Epstein then uses these six building blocks to clarify many intractable problems in the modern legal landscape. His discussion of employment contracts explains the hidden virtues of contracts at will and exposes the crippling weaknesses of laws regarding collective bargaining, unjust dismissal, employer discrimination, and comparable worth. And his analysis shows how laws governing liability for products and professional services, corporate transactions, and environmental protection have generated unnecessary social strife and economic dislocation by violating these basic principles. Simple Rules for a Complex World offers a sophisticated agenda for comprehensive social reform that undoes much of the mischief of the modern regulatory state. At a time when most Americans have come to distrust and fear government at all levels, Epstein shows how a consistent application of economic and political theory allows us to steer a middle path between too much and too little.
The Sphere of Application of the Vienna Sales Convention

Franco Ferrari

As the UN Convention on Contracts For The International Sale of Goods (CISG) becomes the law governing contracts among major trading nations, The question of applicability is of vital importance. In this treatise, Professor Ferrari presents a concise explanation of the background and criteria For The rules dealing with the sphere of application of the Vienna Sales Convention. All scholars and practitioners involved in international contracts will appreciate the knowledge presented in this work.
Billing for Costs and Disbursements: What Law Firms Can Charge and Clients Can Expect

Stephen Gillers

Lawyers sell time. Or they sell results. Or they sell the completion of a specified task. However they bill their clients, all lawyers sell their knowledge of and experience in the law. Looked at abstractly, what lawyers sell they carry with them in their minds, then translate into a product composed mostly of words, written or spoken. Lawyers, however, do not practice abstractly. Practicing law requires lawyers to have an office from which to practice; to use the services of an array of others, both inside and outside their law firms; and to employ a constellation of equipment that, while changing over the years, both costs money (to own or rent or operate) and saves money by making the lawyer more efficient. Lawyers who charge their clients for the work they do—lawyers who are, in short, in business—will also, quite appropriately, seek to recapture the cost of being in business in addition to payment of their fees for legal services rendered. Make no mistake about it. Undoubtedly, they may do so, without apology or embarrassment. In fact, law firms had better do so, or they might not be in business very long. But how? In the last decade, we have witnessed much professional discussion and debate about how, fairly, a lawyer may recover the costs attendant on practicing law and serving a client. Does it matter what benefit the money has bought? Does it matter what the client has been told? Does it matter which clients are being charged? Does it matter how much a client is charged? This essay proposes answers to these and related questions. Looking at bar ethics opinions and court cases, the essay discusses different expenses a law firm might have and how it might fairly and properly seek payment for them. While I use the words “fairly” and “properly” conjunctively, in fact I believe that, ordinarily, a policy that is fair will also be proper. By “fair,” I mean several things. First, the firm’s policy should be fair both substantively and procedurally. A policy is fair procedurally if the client has due notice of it. The notice that is due depends on the details of the policy. Second, the policy should be substantively fair between the firm and the firm’s clients. That is, it should reach a reasonable reconciliation of their respective interests in appropriate reimbursement. Third, a policy should be fair as among all the clients of a single firm. None, for example, should unwittingly contribute to a substantial expense imposed solely by the needs of another client. I begin with discussion of an ABA ethics opinion and three local ethics opinions. I then move to discussion of caselaw. Finally, I discuss my own conclusions based on these authorities and a further authority. Before turning to these sources, however, I offer a brief summary. As will be explained in the following pages, three simple rules can usually guide law firms as they set about composing a system for recapturing monies they expend in rendering legal services to clients. This is true whether the expense is for technology or personnel or both, whether it is for a service provided in-house, by an outside source, or through a combination of the two. First, if the firm means only to bill the client for the very charges made by an outside provider (the court reporter, the expert witness, the printer), it need only alert the client to expect such charges and their basis. Similarly, if the firm is going to bill the client only for the direct costs of services provided in-house, or for those direct costs plus a reasonable sum (which can be expressed as a multiplier) to reflect a share of directly associated overhead, it should alert the client to the identity of the service that will be billed this way, perhaps with the additional statement that the service will be billed based on the firm’s direct cost and a reasonable allocation of directly associated overhead. Specification of the amount, rate, or method of billing makes good business sense. Second, if the firm will impose a surcharge on statements from outside providers, it should tell the client that it plans to do so and, because it also makes good business sense and because the client will likely inquire in any event, the firm should say why it is doing so. The client should agree to the charge. Similarly, if the firm plans to charge more for in-house services than the direct costs of providing the services and a share of directly associated overhead, I believe the firm will ordinarily satisfy its obligation if it specifies the rate for the charge and the client agrees. For example: “Facsimile transmissions will be billed at Y cents per page.” Third, whatever the firm charges, the reasons and basis for its computation should be plausible, not surprising. The charges should make sense in the market. Stated another way: If the charges and their basis are not what you can expect a sympathetic but prudent client to appreciate after explanation, don’t do it. Billing judgment is required for disbursements and expenses no less than for fees.
Regulation of Lawyers: Problems of Law and Ethics

Stephen Gillers

This book is about the rest of your professional life. It’s about the rules you have to know and live by. It’s about what can happen if you forget. The lessons in this book and the course for which it is assigned are unlike the lessons of other law school courses. While those courses help you serve the legal needs of your eventual clients, this one’s for you. Unless you work in the areas of legal malpractice or lawyer discipline, you, not your clients, will be the prime beneficiary of the rules you learn here. These rules can be discussed from at least three perspectives. At the precipice of your career, perhaps most important are rules that constrain your daily professional behavior. In such areas as competence, fees, advertising and solicitation, confidentiality, conflicts of interest, negotiation, and the attorney-client relationship, what may you do, how may you behave, with confidence that your conduct will not land you before a disciplinary committee, lead to civil lawsuit, invite court sanction, or damage your reputation? Even to ask this question should be sufficient to forewarn you that the “ethics” in legal ethics is not merely about being a morally good person. It is also about being a professionally safe lawyer. The second perspective of the book is the relationship between the profession and society. The rules that lawyers impose on themselves and that are imposed on them, taken together, help define the nature and work of the entire profession and therefore the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise will influence the conduct of individual members of the bar. But it may also affect whether, and how, large categories of people use lawyers and the size of legal fees. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client will control the lawyer’s own behavior, but it may also affect which client populations use lawyers and what information clients are willing to tell lawyers. In short, nearly every rule, whatever its source, has social and political consequences beyond any single representation or practice, although there is often fierce disagreement over what these consequences will be and whether they should be avoided or encouraged. About to go off into law practice, you may be more interested in such questions as “How do I behave?” and “How can I stay out of trouble?” than in asking, “What are the consequences to society and justice if one or another version of a particular ethical rule is applied to America’s 800,000 lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses. Why? In part because to answer them we must call upon political and moral values more fundamental than the “ethics” that inform various codes. And of course, the political and moral values of different people may differ fundamentally. Furthermore, in addressing these questions, we probably make a threshold determination, conscious or not, of the interests we mean to protect. Those of society generally? The legal profession’s? The interests of lawyers in practices like the one we have or expect to have? Those of the particular client population we serve? Our firm’s? Our own? Law school and law practice, it is sometimes said, encourage more rather than less self-interestedness in addressing the questions raised her. In transition as you are, your answers to many of them will likely vary from what they would have been before you entered law school and will likely be still different five years after you graduate. At the outset I wrote that rules governing the practice of law can be discussed from three perspectives. I have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on self. For example, a rule that requires silence though it means that another will suffer great injustice will take its toll on those who must obey it. As men and women, we consider it laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. How can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made about the rule that requires lawyers diligently to pursue the lawful goals of their clients, even if these goals (or the legal strategies used to achieve them) work unfairness and offend the lawyer’s values. Or consider the oft-cited schism between the qualities of personality that law office culture tend to reward and the ones encouraged in personal and family life. Do you have to learn behavior in order to survive in professional environments that will make you downright unpleasant in social and familial ones—unless you also learn how to “leave it at the office”? One thinks of the common retort of a lawyer’s lay relatives: “Oh, stop talking like a lawyer!” Many topics in this book lend themselves to discussion of the effect of role on self. I hope you are able to address this issue in class. Certainly it is worthy of self-reflection throughout your career, starting now.
Regulation of Lawyers: Problems of Law and Ethics

Stephen Gillers and Roy D. Simon Jr.

Prior edition of Regulation of Lawyers: Problems of Law and Ethics.
Federal Income Taxation: Principles and Policies

Michael J. Graetz and Deborah H. Schenk

This whole book is but a draught—nay, but the draught of a draught. Oh, Time, Strength, Cash and Patience!—Herman Melville, Moby Dick, Ch.32. Even with more time, strength, cash, and patience, the Congress, the courts, and the Internal Revenue Service all collaborate to ensure that any book designed for teaching a basic course in Federal Income Taxation will never be more than a draft of a draft. Today, no area of law seems more susceptible to change than federal taxation. In the decade since the publication of the first edition of this text, Congress has enacted five major pieces of tax legislation, including the Tax Reform Act of 1986 and major tax revisions as part of deficit reduction legislation in 1990 and 1993. Each of these three Acts contained more pages of statutory amendment than the 1954 codification. Meanwhile, the courts have decided tens of thousands of tax cases, and the IRS has processed billions of income tax returns. And hardly a day passes without a new proposal for replacing the income tax wither with some form of consumption tax or a broader-based, flatter-rate income tax. Perhaps even more astonishing than the scope and rapidity of changes in the law, however, is the remarkable continuity of this edition with its ancestor edition, Griswold’s Cases on Federal Taxation. That book, initially published in 1940, was the first law school coursebook devoted exclusively to federal taxation. It appeared at a time when most of the operative statutory provisions were phrased in general terms and many of the basic concepts of federal taxation had not yet matured. Most law schools taught federal taxation only as part of a course that also covered state and local taxation. Nevertheless, this text retains the same overarching organization that Erwin Griswold first brought to the subject. The subsequent adoption of this structure by most income tax coursebooks is a great tribute to Griswold’s insights into how the subject of federal taxation should be taught. However, the mass of detail that has been added to the statute and the regulations and the burgeoning case law in the intervening 55 years has required a substantial rethinking of the purposes of an introductory course in federal taxation and, hence, of this coursebook. For one thing, these details have become so voluminous and the changes so frequent that the student must necessarily strive to understand basic concepts rather than to memorize particular rules. The practice of tax law has become more specialized, and most law schools offer a number of advanced course in taxation. The student in an introductory course therefore must attain some familiarity not only with the statute, the regulations, and the cases but also with the trends in the tax law, the prospects for change, and the fundamental policy issues that inform such changes. Successful tax lawyering inevitably will involve responding to new and unforeseeable rules and therefore will demand a basic conceptual understanding of income tax principles and policies. Likewise, the nonspecialist needs to be introduced to these fundamental concepts of income taxation, if only to be able intelligently to recognize and monitor his or her clients’ tax problems. The composition of this book has also been influenced by the increasing use of the tax law as an instrument of social and economic policy. The income tax is not merely a revenue-raising device to finance the goods and services provided by the government. The decisions as to what to tax, and when, increasingly affect the directions, growth, and overall condition of our economy and the allocation and distribution of resources within our society. For these reasons, this volume devotes substantial attention to the general principles and policies of federal taxation. Thus, cases have been supplemented with excerpts from congressional reports, administrative pronouncements, and commentaries and analyses of tax issues. In addition, there are explanatory notes introducing fundamental concepts of tax law and shorter notes following the principal cases. This edition nevertheless continues to reflect the central pedagogical perspective developed in Erwin Griswold’s original volume, the preface of which stated: “Here is an opportunity, almost unique * * *, to study a complete and self-contained system. Here is an opportunity to come into contact with perhaps our most experienced administrative agency. Here is an opportunity to deal with a statute, not as some excrescence on the common law, but as the law, to trace its growth, to learn how it is given meaning and how that meaning changes. Here is an opportunity to deal with authoritative judicial decisions—or at least, and perhaps more important, to consider how far they are authoritative * * * Here as elsewhere it is understanding and knowledge of the process that is sought.” These opportunities are no less present in this volume than they were in its predecessor some 55 years ago. This edition retains the basic chapter organization of its predecessors. The first chapter contains the basic policy and procedural aspects of income taxation. This chapter includes a brief history of taxation in the United States, an introduction to income tax terminology, and a discussion of the roles of Congress, the executive, and the courts. Subsequent chapters explore the topics “What Is Income?,” “Deductions and Credits,” “Whose Income is It?,” “Capital Gains and Losses,” and “When is It Income?”. Of course, tax problems rarely can be placed into such discrete categories. Hence, there is some overlap of subjects within the chapters. Chapter 7 provides a brief description of the individual minimum tax. Chapter 8 contains an introduction to corporate tax shelters as well as materials on the ethical responsibilities of tax lawyers, thereby providing an appropriate context for their analysis and discussion. The Appendix contains tables of present values. As every teacher of taxation knows, it has become increasingly difficult to teach an introduction to federal taxation in a single semester, even in a 60-hour course. Compromises between breadth of coverage and treating at least some materials in depth are ever more necessary. Most instructors have learned to maintain limited expectations as to what can reasonably be accomplished in the first course and to assume that students with genuine interest in taxation will take additional courses in the subject. This volume continues the layered approach of the prior editions. By selecting from the materials available here, teachers can decide which aspects of income tax law and policy to emphasize and which to skim or even omit in an introductory course. This volume contains enough materials to teach not only a 4-semester hour basic course in federal income taxation, but also an additional 3-hour course designed to pursue certain issues in greater detail than is possible in the basic course. This means that the instructor must exercise considerable selectivity in teaching any single course form this book. For example, the instructor might wish to emphasize Chapters 2 and 3, the first two sections of Chapter 4, the first three sections of Chapter 5, and a brief selection from Chapter 6. Another professor, who taught these materials in a two-semester course, skipped certain aspects of Chapters 2 and 3 and used only the introductory sections of Chapters 4 and 5 in the basic course, with the balance of materials used in the second course. Instructors who wish to cover more ground might consider relying on students to read some of the more straightforward materials without classroom discussion. Designing courses inherently involves personal priorities and choices. The precise materials assigned will depend upon the teacher’s individual choices of where to delve deeply into substantive law and policy issues as well as how to trade off in-depth discussions and general coverage. We have attempted here to provide sufficiently comprehensive, interesting, and flexible materials to allow teachers to make a wide variety of successful selections. Federal income taxation is, of course, primarily a statutory course. In addition to this text, the student will need a current edition of the Internal Revenue Code and as well as certain sections of the Income Tax Regulations. A number of publishers now produce one volume editions of selected statutory and regulatory provisions that may be used along with this text.
Passions and Constraint: On the Theory of Liberal Democracy

Stephen Holmes

In this collection of essays on the core values of liberalism, Stephen Holmes—noted for his scathing reviews of books by liberalism’s opponents—challenges commonly held assumptions about liberal theory. By placing it into its original historical context, Passions and Constraints presents an interconnected argument meant to fundamentally change the way we conceive of liberalism. According to Holmes, three elements of classical liberal theory are commonly used to attack contemporary liberalism as antagonistic to genuine democracy and the welfare state: constitutional constraints on majority rule, the identification of individual freedom with an absence of government involvement, and a strong emphasis on the principle of self-interest. Through insightful essays on Hobbes’s analysis of the English Civil War in Behemoth, Bodin’s writings on the benefits of limited government, and Mill’s views on science and politics, Holmes shows that these basic principles provide, to the contrary, a necessary foundation for the development of democratic, regulatory, and redistributionist politics in the modern era. Holmes argues that the aspirations of liberal democracy—including individual liberty, the equal dignity of citizens, and a tolerance for diversity—are best understood in relation to two central themes of classical liberal theory: the psychological motivations of individuals and the necessary constraint on individual passions provided by institutions. Paradoxically, Holmes argues that such institutional restraints serve to enable, rather than limit, effective democracy. In explorations of subjects ranging from self-interest to majoritarianism to “gag rules,” Holmes shows that limited government can be more powerful than unlimited government—indeed, that liberalism is one of the most effective philosophies of state building ever contrived. By restricting the arbitrary powers of government officials, Holmes states, a liberal constitution can increase the state’s capacity to focus on specific problems and mobilize collective resources for common purposes. Passions and Constraint is an assessment of what that tradition has meant and what it can mean today.
Criminal Law and Its Processes: Cases and Materials

Sanford H. Kadish and Stephen J. Schulhofer

We have tried in this edition to freshen the material in the previous edition while at the same time maintain close continuity with it. Thus we have left unaltered the basic organization, tone, and perspective of the book. We have replaced relatively few of the major cases, only doing so to improve teachability or to introduce new developments. Most of the changes have been in the notes and problems, in which we try to present the most interesting ideas in the non-case literature, in the presentation of new topics, and in the organization of some of the chapters. Why substantive criminal law? We conceive of a criminal law course as serving the ends of both general legal education and training in the criminal law in particular. There are, as we see it, three chief ways the course can contribute to the general legal education of the law student. One way is to provide a vehicle for the close reading of statutory texts—primarily the Model Penal Code, but also state statutory formulations—to help balance the emphasis on case law in the first-year curriculum. The second way is to introduce the student to the operation of a system of rules and principles designed to apportion blame and responsibility in accordance with our moral norms. While the criminal law is the primary institutions serving this function, fault and wrongdoing play a role in determining liability throughout the law. Hence some understanding of the analytical elements in assessing blame for a person’s conduct or for the conduct of another, and of the concepts of excuse and justification, is an important element in a lawyer’s legal education. The other way the criminal law course serves the purpose of general legal education is by enlarging insight into the potentialities and limitations of the law as an instrument of social control. We have in mind the hard problems encountered in using the law for this purpose: the difficulty of giving legal form to the compromises made necessary when goals conflict; the creation of institutional arrangements—judicial and administrative—appropriate to the goals sought; the limitations—moral and practical—on the use of the law as a means of social control; the relation of legal controls to other social processes. The substantive criminal law is an unusually suitable introduction to these pervasive problems of the law. The ends criminal law serves involve social and human values of the highest order. It means, entailing the imposition of brute force on the lives of individuals, are potentially the most destructive and abusive to be found within the legal system. The issues it raises and the setting in which it raises them are compelling and vivid. Its institutions are acutely controversial and often controverted. And one of its underlying themes is the momentous issue of the reconciliation of authority and the individual. As Professor Herbert Wechsler has written: “Whatever views one holds about the penal law, no one will question it importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instruments of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community or for the individual.” What of the course’s narrower purpose of training students in the criminal law in particular? Here there are two main pedagogic objectives. One is to furnish a solid foundation for those who will, in greater of lesser degree, participate directly in the processes of the criminal law. This foundation does not require mastery of the full range of technical skills and information held by the practicing criminal lawyer, judge or administrator, but rather the development of confidence in handling principles and rules—judge-made or statutory—through knowledge about the larger implications of doctrines and institutions of the criminal law. The second purpose is to create in law school graduates who will have little occasion to practice criminal law and understanding of the problems of the criminal law. As influential members of their communities—and more directly as judges, legislators, or teachers—lawyers versed in the principles of criminal law can bring an informed intelligence to the challenge of solving some of the most vexing problems of our times. Revisions for the six edition. In the procedural sections (Chapter 1), we have streamlined the materials but have retained those fundamentals of criminal trial procedure that we consider essential for understanding the issues in substantive criminal law (rules of evidence, burden of proof, presumptions, and the role of the jury). These topics can now be covered in several classes. We believe that a brief but intensive treatment of this material at the outset of the course adds immeasurably to the student’s appreciation of the concrete setting in which substantive law issues arise and the practical considerations that so often influence those debates. We have retained in Chapter 1 a substantial but more tightly edited sections dealing with the ethical responsibilities of the criminal defense attorney. The themes of this section are central to the study and practice of law, and we believe that students can profit from exposure to these themes early and often in their legal education. The growing complexity and importance of sentencing procedure and sentencing guidelines pose a dilemma for an introductory criminal law course. The subject is too important to be ignored but too complex to be covered comprehensively. We have sought to strike an appropriate balance by providing in Chapter 2 both a textual summary of current sentencing procedures and a principal case (United States v. Johnson) that can serve as a focal point for discussion in class. Though brief and tightly edited, the material is sufficient to illustrate for students the mechanics of how guidelines work, as well as the tough jurisprudential issues underlying them. In the substantive sections we have updated the cases, added Notes and Problems dealing with issues of current concern, and modestly reorganized several sections (most notably, those on conspiracy, complicity, causation, and insanity) to permit a more succinct treatment. Among the new principal cases are Staples v. United States (the latest mens rea decision of the Supreme Court), Harmelin v. Michigan (on cruel and unusual punishment), Commonwealth v. Berkowitz and In re M.T.S. (two significant recent rape cases), Cheek v. United States (the latest venture of the Supreme Court into the mistake of law issue), and State v. Korell (legal insanity). The major new topics introduced in the new edition include blackmail, suicide and euthanasia (the Cruzan case and the recent Michigan case involving Dr. Kevorkian), and the nature of prison punishment in America. As in previous editions, the substantive materials continue to focus on imparting an understanding of what is often called the “general part” of the criminal law—that is, those basic principles and doctrines that come into play across the range of specific offenses (for example, actus reus, mens rea, and the various justifications and excuses). We believe that mastery of the detailed elements of many particular crimes is not an appropriate goal for a basic criminal law course. Nevertheless, we have found that understanding of the basic principles is enhanced by testing their applications and interactions in the context of particular offenses. Accordingly, we examine in detail three offense categories: rape (Chapter 4), homicide (Chapter 5), and theft (Chapter 9). The chapter on rape provides an opportunity to focus on the definitional elements of a major crime in a context that has become the focus of acuter controversy because of changing perceptions and changing social values. The theme of the homicide chapter is the task of legislative grading of punishment in a particularly challenging area. The theft chapter explores the significance of history and the continued impact of old doctrinal categories on the resolution of thoroughly modern difficulties in defining the boundaries of the criminal law. Use of the materials in diverse teaching formats. Over the past decade, law schools have experimented with a variety of formats for the basic criminal law course. Although the year-long five- or six-hour course remains common, some schools offer criminal law as a four- or even three-hour course, and some schedule the course in the first or second semester or even in the second or third years. Under these circumstances, a short book designed to be taught straight through, without adjustments or deletions, is bound to prove unsatisfactory for many users. In preparing the sixth edition we have sought to edit the materials tightly enough to avoid significant surplusage for the average course, but we have not attempted to preempt all possible judgments about inclusion and exclusion. Rather, we thought it essential to preserve some freedom for teachers to select topics that accord with their own interests and with the curricular arrangements at their own schools. Thus, we have aspired to create a flexible teaching tool, one that reflects the rich diversity of the subject. For the five- or six-hour, year-long course, the book can be taught straight through, perhaps with some minor deletions. For a four-hour course, and especially in the case of a three-hour course, substantial omissions will be necessary. Many teachers will have their own preferences, of course. We present here our own thoughts, based on our experience in structuring the material for use in shorter courses, both in the first semester and in the second and third years. Chapter 1 (How Guilt is Established). Part A of this chapter (The structure of the Criminal Justice System) consists of textual material that lends itself either to class discussion or to reading outside of class. In a shorter course it should be assigned as background reading, and the first class can begin with a discussion of the material in Part B (The Process of Proof). In schools that require a criminal procedure course before the study of criminal law, Part B of Chapter 1 can be largely omitted. It may be appropriate, however, to take up Section B3 (Proof Beyond a Reasonable Doubt). For students taking criminal law in the first semester of their first year, Part B of chapter 1 provides basic grounding in process. The teacher who is unable to cover the entire Part can consider assigning Section B1 (overview), and Section B2 (evidence) and B3 (assigning the burden-of-proof materials but omitting the material on presumptions). We believe that this material, which can be covered in roughly two or three classes, provides a solid foundation for the subsequent study of substantive law. Teachers who skip Section B5 (role of counsel) at the beginning of the course may wish to return to it later. This material raises provocative issues of pervasive importance for the study and practice of law; its themes can provide an appropriate and effective concluding topic for the course. Chapter 2 (The Justification of Punishment) is basic to the substantive part of the course. Part A (What Is Punishment?) provides descriptive material, both legal and sociological, that afford a sense of the character of imprisonment and other punitive sanctions as they work in actual practice in contemporary American society. Whether simply assigned as background reading or used to stimulate class discussion, this material can help make vivid and concreate the pains of “punishment” and can thus help to give some immediacy to the otherwise abstract jurisprudential debates about when punishment is justified. Part B (Why Punish?) presents material that many teachers will wish to discuss directly and in depth in class. Others have found it preferable, either because of time pressure or pedagogical taste, to deal with the purposes of punishment in the context of particular substantive subjects, such as mens rea, actus reus, causation, attempt, justification, or excuse. Part C (What to Punish?) raises basic problems that can be examined usefully either at this point or toward the end of the course. Chapters 3 (Elements of Just Punishment), 5 (Homicide), 6 (Harm), 7 (Group Criminality), and 8 (Justification and Excuse) will constitute the core of the typical substantive criminal law course, and, generally, teachers will want to cover them in depth. Chapter 4 (Rape) is important in its own right and as a complement to the materials in mens rea. Part D of the chapter on rape (Problems of Proof) can be used to pursue in more detail the themes studied in Chapter 1, or it can be used to introduce those themes when the time does not permit full consideration of Chapter 1. Chapter 9 (Theft) pursues the general themes of the course in the context of a specific crime heavily influenced by historical tradition and by the common law method. In the typical three-hour course, either this chapter or a substantial segment of other material (such as conspiracy) often has to be omitted. In a four-hour course, a detailed treatment of this chapter affords an occasion to explore the problems of defining actus reus and mens rea and determing the appropriate reach of criminalization in a setting of continuing practical importance.