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Regulation of Lawyers: Problems of Law and Ethics
Stephen Gillers and Norman Dorsen
Title like “Professional Responsibility” and “Legal Ethics” do not fully describe the subject matter of this book. It is a book about the legal profession and about the practice of law. The book includes laws governing the practice of law, rules contained in ethical codes and constitutions and, to a lesser extent, behavior that springs from custom and experience. These laws, ethical rules, and customs can be discussed from three perspectives. Perhaps most immediate for those about to enter on a legal career are the rules that constrain working lawyers. In such areas as competence, fees, advertising and solicitation, client secrets, conflicts of interest, negotiation, and the attorney-client relationship: what may you do, ho may you behave, with confidence that your conduct will not land you before a disciplinary committee or in a civil lawsuit and, sometimes more important, will not damage your reputation among your peers? The second perspective of the book is the relationship between the profession and society. The rules lawyers impose on themselves or that are imposed on them, taken together, define the nature and operation of the entire profession, and therefore, to an extent, the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise certain kinds of information will influence the conduct of individual members of the bar. But it will 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 individual conduct, but it will also affect which client populations use lawyers and how. In short, nearly every rule, whatever its source, has social and political consequences, although there is often disagreement both 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 is asking “What are the consequences to society and justice if one or another version of particular ethical rule is applied to America’s nearly 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 mora values more fundamental than the “ethics” that inform various codes; and, of course, political and moral values of different people differ substantially, sometimes diametrically. Furthermore, in addressing these questions, we are likely to make a threshold determination, conscious or not, of the extent to which we want the answers to further our self-interest. However we couch our responses, in truth whose best interests do 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 kinds of questions that will be raised here. At the outset we wrote that rules governing the practice of law can be discussed from three perspectives, and we 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 shelf. For example, a rule that requires silence though it means that another will suffer injustice may cause great discomfort to those who must obey it. As men and women, we consider if laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. Can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made with regard to the rule that requires lawyers zealously to pursue the lawful goals of their client, even if these goals (or the legal strategies to achieve them) offend the lawyer’s values. Conflict between work life and private life also arises in another way. It concerns not the particular deeds that a lawyer may be called on to perform for a client and the he or she might find morally problematic if performed outside the professional role, but the way that professional service (and the culture of law practice) affects other aspects of a lawyer’s life. Most obvious is the clash between job and family. For example, does the profession allow people to reach its higher rungs and also be conscientious and responsible parents? A second issue is the possible discrepancy between the qualities of personality that law office culture tends to reward and the ones encouraged elsewhere. Do you have to learn behavior to survive in professional environments that will make you downright unpleasant in social and familial ones—unless you also leans to “leave it at the office”? (One thinks of the common criticism from a lawyer’s lay relatives: “Oh, stop talking like a lawyer!”) When the first edition of this book appeared four years ago, little had been written about these conflicts. Now there is much more, though not perhaps as much as appears about Rule10b-5, Rule 11, or the rule against hearsay. But they are important matters, and we shall speak of them again.
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Regulation of Lawyers: Statutes and Standards
Stephen Gillers and Roy D. Simon Jr.
The purpose of this book is to make law school courses in professional responsibility more interesting. To accomplish this purpose, we have made this statutory supplement different from other available supplements for professional responsibility courses. This Preface explains what makes our book different. The ABA Model Rules of Professional Conduct A majority of the states have now adopted the ABA Model Rules of Professional Conduct in some form, and most law schools make the Model Rules an important component of their professional responsibility courses. We have therefore concentrated on adding depth and perspective to the Model Rules. We have given them depth by providing internal cross-reference, legislative histories, and interesting state variations after each Rule. We have put the Rules in perspective by citing or describing related authorities after each Rule. A quick glance at virtually any Model Rule will show how these features will enhance your understanding of the Model Rules. The Cross-References in the Rules give a full picture of each Rule’s influence and implications for the Rules as a whole. The Legislative History sections and the Selected State Variations can serve as the basis for lively, focused class discussions on whether the ABA Model Rules represent the best way of treating a particular issue or whether an earlier draft or a state variation is preferable. The Related Materials sections, which cite or quote other sources treating similar issues, make it easy to explore additional alternatives (such as the American Lawyer’s Code of Conduct), to fill in gaps in the Model Rules (by looking to specialized codes such as the ABA Model Standards for Lawyer Mediators in Family Disputes or the ABA Standards for Criminal Justice), to consider the relationship between the Model Rules and other sources of authority (such as the attorney-client privilege or the Federal Rules of Civil Procedure), and to gain additional historical perspective (by reading the old Canons of Professional Ethics following each Rule). To put our materials in context, we have written brief introductions to each chapter of the book. We have also written an introductory essay giving an overview of the entire field of regulation of lawyers, with special emphasis on the ABA Model Rules and Model Code, including their legislative history and the patterns in state variation. New York and California Materials We have paid especially close attention to California and New York. For California, the Selected State Variations section following every Model Rules cites comparable sections of both the California Business and Professions Code and the newly revised California Rules of Professional Conduct. Conversely, each section of the California Rules of Professional Conduct is followed by citations to related provisions in the ABA Model Rules, the Business and Professions Code, and the old California Rules (which were in effect until May 27, 1989). For New York, we have indicated after each Model Rule whether New York’s comparable provision differs from the ABA Model Code of Professional Responsibility, and we have reprinted separately all of the New York Code provisions that differ significantly. In addition, we have cited all comparable provisions in the Proposed New York Rules of Professional Conduct (still under consideration as of this writing), and we have reprinted the most important Proposed Rules, including underscoring and line-outs to show additions and deletions from the current New York Code. Our Theme Throughout the volume, our theme is simple: The ABA Model Rules are an important voice in the legal profession—but they are only one voice. The drafts, the state variations, and other sources show that there are other ways of addressing issues. Moreover, sometimes the Model Rules resolve only a few of the questions in the areas they cover, leaving many other questions wholly unaddressed. The job of the legal profession is to debate and determine the best possible standards for each facet of legal practice. By setting forth a wide variety of materials, and making them accessible through cross-references, we hope to help move the profession toward that goal.
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Criminal Law and Its Processes: Cases and Materials
Sanford H. Kadish and Stephen J. Schulhofer
In preparing this edition, our intention has been to maintain the basic structure and purposes of its predecessor, to preserve the leading cases that many teachers have found helpful in focusing successful class discussion, and at the same time to offer a fresh perspective by introducing new cases, along with many new Notes, Problems, and other contemporary material. As in prior editions, the emphasis is primarily upon the substantive criminal law. Why substantive criminal law? We conceive of a criminal law course as both serving the ends of both general legal education and training in the criminal law in particular. The chief value of the course as a part of a general legal education is to enlarge insight into and understanding of the potentialities and limitations of the law as an instrument of social control. We have in mind the variety of 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. We regard the study of the substantive criminal law as an unusually suitable introductions to these pervasive problems of the law. The ends criminal law serves involve social and human values of the highest order. Its 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 fifth edition. In the procedural sections, we have substantially streamlined the materials. Those fundamental 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) remain, and they can now be covered in two to three classes, instead of the two to three weeks that were required to cover the procedure chapter of the prior edition. 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. Conversely, we have come to the conclusion, albeit reluctantly, that a full chapter on sentencing procedure is no longer feasible in a book devoted primarily to substantive criminal law. The body of doctrine in this area and the variety and complexity of statutory reforms now render this material worthy of a full course or seminar in its own right; adequate treatment in a 45 or 60 hour criminal law course has become impossible. Rather than attempt such a treatment, we have chosen to provide (in Chapter 2) a brief textual summary of the procedural issues and the current state of the sentencing reform movement. In the substantive sections we have updated the cases and added Notes and Problems dealing with many issues of current concern. For example, the subject of omissions is now treated in an enlarged subsection, to provide coverage of the subject as it arises in euthanasia and in other contemporary setting; complicity and the causation materials have been reconsidered and presented in a more readily understood organization; the Goetz case and the problem of the battered woman are used as the main vehicles for treating self-defense; the chapter on legal insanity has been entirely redone to reflect the revolutionary developments since the last edition; cases and materials on federal mail and wire fraud have been added to the theft chapter. We have made two important organizations changes, both designed to achieve a better integration of the teaching materials. In Chapter 2, the Justification of Punishment, we now begin with a number of specific cases, several of which had been broken out as a separate section in the prior edition. We believe the new organization, which we have used successfully in our own teaching, provides a more concrete grounding from which to explore philosophical and empirical questions that some students might otherwise find too abstract. In Chapter 7, Group Criminality, we have now integrated the material that formed the core of the separate Business Crimes chapter in the prior edition. Given inevitable time constraints, the new organization should help teachers to cover the essence of these increasingly important problems, which otherwise might have to be ignored altogether. 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 resus, mens rea, and the various justifications and excuses). We believe that mastery of the detailed elements of many particular crimes is a goal that is inappropriate for a basic criminal law course. Nevertheless, we have found that understanding of the basic principles in 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 acute 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. Uses of the materials in diverse teaching formats. Over the past decade, law schools have begun experimenting 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 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 fifth edition we have sought to organize and 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 being 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 Sections 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 foundations 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 (Why Punish?) presents material that many teachers will with 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 B (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 on mens rea. It can be studied immediately after the mistake-of-fact cases in Chapter 3 or after all of Chapter 3 has been completed. Part C 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 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 determining the appropriate reach of criminalization in a setting of continuing practical importance.
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Distinctive Practices of the Second Circuit
Richard L. Revesz
There are 12 regional federal courts of appeals in the nation, including one covering only the area of the District of Columbia. And there is another Article III court of appeals—for the Federal Circuit—whose jurisdiction is defined by type of case rather than by geography. These 13 federal Article III appellate courts have only 168 authorized active judges. With so few courts and so small a group of judges handling almost all of the nation’s federal appellate jurisdiction (with the exception of the Supreme Court), one would think that the workings of these courts and their personnel would be well known to practicing lawyers, if not to the citizenry at large. Yet this is not so. The reasons are not hard to find—the general lack of interest in the law schools in judicial administration, the tendency of the media to concentrate on the drama of the trial court of the national significance of a Supreme Court ruling, and so on. As a result, many lawyers are only dimly aware of the way in which the circuit court of appeals in their area operates. They are even les aware of the differences in customs and procedures among the circuits, some of which have assumed importance only in the last decade or two as the volume of cases in the federal courts has increased sharply. This book is a modest attempt to eliminate some of that ignorance. It is not meant to be historical or exhaustive. It is designed to educate and to kindle interest in the workings of only one of the nation’s regional appellate courts—the United States Court of Appeals for the Second Circuit. Our court follows procedures that are quite different from those used two decades ago. In that respect, the Second Circuit is like all the other circuits that have had to adapt to the caseload explosion. But the Second Circuit also follows procedures that are, in significant ways, unlike those utilized in most of the other circuits, as the following pages show. But whether the procedures are new or old, unique or typical, lawyers who practice in the federal courts of New York, Connecticut and Vermont, should be familiar with them. The Federal Bar Council, and its President, David A. Trager, therefore, are to be commended for undertaking the project of publishing this book. And all of us should be grateful to Professor Ricky Revesz of New York University Law School for his editorial efforts and illuminating introductory notes. It is my hope that what follows will make it easier for lawyers to appear and practice in the Second Circuit Court of Appeals.
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Foundations of American Constitutionalism
David A.J. Richards
In writing the constitution, the Founders combined a Lockean theory of politically legitimate power with the political science they had learned from Machiavelli, Harrington, Hume, and Montesquieu to articulate a new conception of constitutional argument. Examining the Founders' humanist analytical methods and working assumptions, this book combines history, political philosophy, and interpretive practice as it demonstrates an alternative exegesis of the Constitution. It clarifies a wide range of interpretive issues of federalism, enumerated rights (religious liberty and free speech), unenumerated rights (the constitutional right to privacy), and equal protection.
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Trial Manual 5 for the Defense of Criminal Cases
Anthony G. Amsterdam
The Trial manual 5 for the Defense of Criminal Cases is a guidebook for criminal defense attorneys. It covers every stage of criminal procedure from investigation through final judgment in the trial court. Its focus is practical. At every stage it describes the ordinary course of proceeding, identifies the actions that defense counsel can take and the decisions that defense cousin must make, itemizes and connects available strategies, and discusses the considerations bearing upon strategic choices. The discussion begins with fundamentals so as to be accessible to lawyers with no criminal experience. It is also serviceable as a procedural primer for law students. But the inventories of options and factors to be considered at each decision point are sufficiently thorough to also serve as a planning checklist for experienced practitioners. Legal analysis similarly proceeds at two levels. Basic doctrinal principles are summarized as background; then the arguments and authorities supporting defense positions on important issues are set out. Volume One opens with a general sketch of criminal procedure and an outline of the first things to think about and do in the three most common situations in which defense counsel enters a criminal case. It then proceeds chronologically to cover all proceedings through arraignment, including bail and other forms of pretrial release, the initial client interview, dealing with police and prosecutors, defense investigation, preliminary hearing, grand jury practice, challenges to indictments and informations, pleas, and plea bargaining. Volume Two examines postarraignment, pretrial proceedings. Because of the importance of federal constitutional law in pretrial motions practice, this volume contains substantial doctrinal analysis presented in a form that permits it to be easily converted into defense briefing. The volume covers motions practice generally, motions to suppress illegally obtained evidence, motions for a change of venue, motions for disqualification of judge, motions for severance and consolidation, motions for discovery (together with other discovery devices and pretrial conference techniques and a chapter on defense trial preparation), motions for state-paid assistance to the defense, motions to postpone or to speed up the proceedings and for dismissal on account of denial of a speedy trial, and interlocutory review of adverse pretrial orders. Volume Three deals with the decision to elect or waive jury trial, with jury selection procedures and challenges before and at trial, and with the trial itself. It discusses rules of evidence that have particular importance in criminal trials, evidentiary foundations and objections, and tactics for handling prosecution and defense witnesses. It deals with trial motions, opening and closing arguments, requests for jury instructions and objections to them, and jury deliberation. It covers posttrial motions and sentencing, and concludes with a short summary of appellate and postconviction procedures and a précis of the first steps to be taken in connection with them.
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More Speech: Dialogue Rights and Modern Liberty
Paul G. Chevigny
Drawing on modern philosophy of language and on cognitive psychology, Paul Chevigny constructs a ground-breaking argument for free speech and related procedural rights. He makes a case for maximum freedom of expression on the part of individuals and for a corresponding sharing of information on the part of governments, seeing this “dialogue” as a basic right. In emphasizing the need for open inquiry, he focuses on language as the means by which human beings can work together to solve social and political problems. Besides placing his ideas in relation to those of earlier political philosophers—notably John Stuart Mill—Chevigny incorporates insights from such recent and contemporary theorists as Ludwig Wittgenstein, W.V.O. Quine, Jean Piaget, Lawrence Kohlberg, and Carol Gilligan. The author argues that “there can be no understanding, no rational decision-making, without open discussion. Society needs the discussion for the same reasons the individual does, and needs to devise means to pull people into the discussion in order to find new contexts and new answers for problems.” He proposes a definition of “modern rationality” as the ability to entertain alternatives, to take a fresh point of view, and insists that the rational approach to interpretation is the one that supplies us with new arguments. He include case studies of irrational government decisions made in Poland, Cuba, and the United States and discusses the unfortunate consequences. More Speech also grapples with the problems of access to the media and to information controlled by the government. By stressing the nature of language in his argument for freedom of expression, Chevigny avoids the more familiar argument based on individual sovereignty. Citing the history of ideological conflict with the socialist world, he argues that the socialist rejection of the notion of individualism demands a new approach to the right of free expression. He states: “I wasn’t to persuade those who are doubtful that there is any really strong ground, outside the accepted arguments of our political system, for criticizing the repressive official; those who think that limiting dissent can contribute to economic or cultural development; those who think that rights are peculiar to alienated bourgeois society, or are not useful where there is a strong sense of community.” Chevigny’s approach is a practical one: he demonstrates that it is in the interest of government, both for the solution of policy problems and for the maintenance of authority, to recognize the right of free expression. The government that refuses to do so for whatever reason, he asserts, will eventually pay the price.
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Contract Laws of the People's Republic of China
Jerome A. Cohen, Yvonne Y.F. Chan, and Ho Yuk Ming
The ‘Open Policy’ announced by the People’s Republic of China (the ‘PRC’) in the spring of 1978 brought with it a resurgence of Chinese interest in legislation, for both domestic and international purposes. The past decade has witnessed a remarkable law-making effort by the PRC, much of it focused upon contracts and contract-related activity. This book presents English-language translations of the principal fruits of that effort in order to make it available, in one convenient volume, to a broad audience of foreign business people, lawyers, government officials and scholars. The book also provides two introductory essays. The first seeks to place contract legislation in the context of the PRC’s developing legal system and its effort to create a legal environment congenial to foreign business. The second discusses some practical problems that frequently arise in the negotiation of business contracts with China. Following presentation of the legislative material, the third section of the book reproduces some PRD sample contract forms that often constitute the basis for the Chinese side’s negotiation drafts. The reader should be cautioned that the English-language counterparts to the Chinese-language provisions in these forms will need careful review to confirm the accuracy of the translations. With the exception of a few provisions that make no sense, we reproduce the original forms, rather than corrected versions, because that is what foreign negotiators will confront, and to revise each of the forms as we would like would eliminate a good deal of each form. A final section offers a Chinese-English glossary indicating the English equivalents used in our translations. Contracts are protean and play a key role in every economic sphere. Thus, a wide range of Chinese laws and regulations concerning property, finance, companies and other topics refer to contracts related to their subject matter. Because of space limitations, it is not possible to include all such legislation in this volume. The accumulation of PRC legislation on each such topic is becoming so substantial that individual specialized volumes are warranted. Similarly, it is not possible to include all the relevant local legislation, which has been springing up—to use a Chinese metaphor—‘like bamboo shoots after rain.’ The translations in this book are principally the work of my colleagues Ms Yvonne Chan and Mr Ho Yuk Ming, who in many cases have built upon earlier draft translations by my learned partner Ms Jamie P Horsley and other lawyers in the firm of Paul, Weiss, Rifkind, Wharton & Garrison. Several of the translations were originally prepared by attorneys in our firm and published in volumes I, II and III of China’s Foreign Economic Legislation, and we are grateful to the Foreign Languages Press in Beijing for permission to include refined versions of them here.
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Labor Law and Business Change: Theoretical and Transactional Perspectives
Samuel Estreicher and Daniel G. Collins
A collection of specially written essays by distinguished legal scholars and practicing lawyers, this book explores the ways in which collective bargaining practices have been forced to adapt and change in response to a radical restructuring in the labor and personnel relations of American businesses. As the contributors demonstrate, current trends--such as a shift from manufacturing to service employment, deregulation, a hostile political environment, and a host of mergers and acquisitions--have made an understanding of traditional labor law doctrine increasingly less central to actual practice. Practitioners today need a thorough grasp of complex new workplace regulations and a mastery of the interplay between legal rules and practical constraints on transactions like plant closings, assets or stock sales, bankruptcy reorganization, and union representation on corporate boards of directors. Labor Law and Business Change places these changes within a comprehensive legal and practical framework and provides expert advice to those who must deal with these developments in the course of structuring particular business transactions.
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The Fourteenth Amendment: From Political Principle to Judicial Doctrine
William E. Nelson
In a remarkably fresh and historically grounded reinterpretation of the American Constitution, William Nelson argues that the fourteenth amendment was written to affirm the general public’s long-standing rhetorical commitment to the principles of equality and individual rights on the one hand, and to the principle of local self-rule on the other.
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Microeconomics
Robert S. Pindyck and Daniel L. Rubinfeld
This book is well known for its coverage of modern topics (Game theory, Economics of Information, and Behavioral Economics), clarity of its writing style and graphs, and integrated use of real world examples. The emphasis on relevance and application to both managerial and public-policy decision-making are focused goals of the book. This emphasis is accomplished by including MANY extended examples that cover such topics as the analysis of demand, cost, and market efficiency; the design of pricing strategies; investment and production decisions; and public policy analysis. Economists and strategists looking to stay current with economic information.
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United Nations, Divided World: The UN's Roles in International Relations
Adam Roberts and Benedict Kingsbury
For the first time in human history, the world consists of theoretically equal sovereign states, most of which belong to one world organization—the United Nations—and subscribe to a single set of principles--those of its Charter. Yet the U.N. has conspicuously failed to solve problems of armaments, war, division, inequality, and dictatorship. An authoritative assessment, this book brings together distinguished academics and senior U.N. officials—including the Secretary-General—in a sympathetic yet critical account of the U.N.'s role in international relations since 1945.
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Passive Loss Rules
Daniel N. Shaviro
Prior edition of Tax Management Portfolio, Passive Loss Rules, No. 549-2d.
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Where the Meanings Are: Feminism and Cultural Spaces
Catharine R. Stimpson
First published in 1990 [sic], this collection of essays in literary criticism, feminist theory and race relations was named one of the top twenty-five books of 1988 by the Voice Literary Supplement. The title covers such subjects as black literature; the reconstruction of culture, changing arts, letters and sciences to include the topics of women and gender; and, the nature of family and the changing roles of women within society. As such, Catharine Stimpson employs a transdisciplinary approach, to encourage greater understanding of the differences among women, and thus socially-constructed differences in general. Where the Meanings Are tells of some of the arguments within feminism during the re-designing and designing of cultural spaces, as post-modernism began to change the boundaries of race, class, and gender. It will therefore be of great value to students and general readers with an interest in the relationship between gender and culture, sex and gender difference, feminist theory and literature.
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The Right to Private Property
Jeremy Waldron
Presenting a comprehensive, critical examination of the claim that private property is one of the fundamental rights of humankind, Waldron here contrasts two types of arguments about rights: those based on historical entitlement, and those based on the importance of property for freedom. He illustrates this contrast with a detailed discussion of the theories of property found in Locke's Second Treatise and Hegel's Philosophy of Rights, and offers original analyses of the concept of ownership, the idea of rights, and the relation between property and equality, finding that traditional arguments about property yield some surprisingly radical conclusions.
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The Personal Vote: Constituency Service and Electoral Independence
Bruce Cain, John A. Ferejohn, and Morris Fiorina
Modern legislators are increasingly motivated to serve their constituents in personal ways. Representatives act like ultimate ombudsmen: they keep in close touch with their constituents and try to cultivate a relationship with them based on service and accessibility. The Personal Vote describes the behavior of representatives in the United States and Great Britain and the response of their constituents as well. It shows how congressmen and members of Parliament earn personalized support and how this attenuates their ties to national leaders and parties. The larger significance of this empirical work arises from its implications for the structure of legislative institutions and the nature of legislative action. Personalized electoral support correlates with decentralized governing institutions and special-interest policy making. Such systems tend to inconsistency and stalemate. The United States illustrates a mature case of this development, and Britain is showing the first movements in this direction with the decline of an established two-party system, the rise of a centrist third party, greater volatility in the vote, growing backbench independence and increasing backbench pressure for committees and staff. This book is essential for specialists in American national government, British politics, and comparative legislatures and comparative parties.
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Agency, Associations, Employment, and Partnerships: Cases, Statutes and Analysis
Alfred F. Conard, Robert L. Knauss, and Stanley Siegel
We have sought in this coursebook to provide to our students an overview of the entire range of business and nonprofit organizations. We believe that lawyers should be familiar not only with the corporate form of organization, which continues to dominate most elements of big business, but also with the partnership form, in which both large and small businesses have shown renewed interest, and with individual proprietorships, which far outnumber partnerships and corporations combined. As in earlier editions of this book, we probe beyond the rules applicable to particular organization forms, discussing in detail the legal principles applicable to the structure and operations of all enterprises. We have included legal and economic materials on the principles of agency in tort and contract, which are inescapably involved in nearly every contact between enterprises of every form and the public with which they deal, whether for good or evil. We aspire not only to enlighten our readers about the rules of decision, but also to provoke serious examination of the social and economic policies that may be served or disserved by legal rules. In this edition we continue to present comparative materials from other legal systems, and we offer considerably expanded materials from other legal systems, and we offer considerably expanded materials on economic theory, with the hope that these may enhance understanding and evaluation of existing and proposed legal structures in this country. Throughout the text, we have deleted or summarized older cases and added contemporary cases, notes and articles. The materials on general and limited partnerships have been expanded to reflect the increased use of these forms in both small and large enterprises, as well as the dramatic changes in substantive law represented by widespread adoption of the Revised Uniform Limited Partnership Act and major changes in the tax laws relating to partnerships. The materials in this book are drawn entirely from the companion volume on Enterprise Organization (fourth edition), and are offered in this form for those instructors whom may wish to present a separate course on noncorporate organization or to use a separate text on corporation law. We have included in the coursebook for ready reference the texts of the Uniform Partnership Act and both the original and revised versions of the Uniform Limited Partnership Act. This edition carries forward the organization and approaches that have been welcomed by teachers in three preceding editions under this title, and in three before them under the title of “Business Organization.” We hope that this successor edition will help future attorneys to understand the structure of the organizations that conduct most of our economic life, and to promote the interests not only of their clients but of the society in which they all play a role.
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Enterprise Organization: Cases, Statutes, and Analysis on Licensing, Employment, Agency, Partnerships, Associations, and Corporations
Alfred F. Conard, Robert L. Knauss, and Stanley Siegel
We have sought in this coursebook to provide to our students an overview of the entire range of business and nonprofit organizations. We believe that lawyers should be familiar not only with the corporate form of organization, which continues to dominate most elements of big business, but also with the partnership form, in which both large and small businesses have shown renewed interest, and with individual proprietorships, which far outnumber partnerships and corporations combined. As in earlier editions of this book, we probe beyond the rules applicable to particular organization forms, discussing in detail the legal principles applicable to the structure and operations of all enterprises. We have included legal and economic materials on the principles applicable to the structure and operations of all enterprises. We have included legal and economic materials on the principles of agency in tort and contract, which are inescapably involved in nearly every contact between enterprises of every form and the public with which they deal, whether for good or evil. We aspire not only to enlighten our readers about the rules of decision, but also to provoke serious examination of the social and economic policies that may be served or disserved by legal rules. In this edition we continue to present comparative materials from other legal systems, and we offer considerably expanded materials on economic theory, with the hope that these may enhance understanding and evaluation of existing and proposed legal structures in this country. Throughout the text, we have deleted or summarized older cases and added contemporary cases, notes and articles. The materials on general and limited partnerships have been expanded to reflect the increased use of these forms in both small and large enterprises, as well as the dramatic changes in substantive law represented by widespread adoption of the Revised Uniform Limited Partnership Act and major changes to the tax laws relating to partnerships. In the corporate area, comments and references are now keyed to the Revised Model Business Corporation Act. The discussions of distributions and major corporate changes have been extended, and the contemporary phenomenon of tender offers has been given substantial attention. We have designed the coursebook to be used with a separate statutory supplement. This arrangement permits readers to have simultaneously before them a case or comment, and the statute involved. It also permits the student to become familiar with the structure of the entire statute, and to see how each provision relates to others. This edition carries forward the organization and approached that have been welcomed by teachers in three preceding editions under this title and in three before them under the title of “Business Organization.” We hope that this successor edition will help future attorneys to understand the structure of the organizations that conduct most of our economic life, and to promote the interests not only of their clients but of the society in which they all play a role.
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Cases and Materials on Civil Procedure
David Crump, William V. Dorsaneo III, Oscar G. Chase, and Rex R. Perschbacher
Organization and Methodology. This book is mostly traditional in approach. It is organized along the lines of the events in a lawsuit, beginning with service of process and establishment of the court’s jurisdiction, and proceeding through post-trial motions and appeals. For the most part, it uses the traditional case method. Law professors will recognize most of the “old favorite” cases, including venerable decisions such as Pennoyer v. Neff, modern classics such as Burger King Corp. v. Rudzewicz, and many others in between. Special Features. An Introduction to the Practice of Civil Litigation through Actual Litigation Documents. In addition to traditional case materials, the book include documents from actual litigation. Complaints and answers, motions, briefs, orders, and in the discovery chapter, a short deposition, are all excerpted for the student to see and study. We also have a set of self-initiated disclosures adapted from a real case. In some instances, a series of related papers tells the story of the underlying litigation. For example, Chapter 2 ends with an appendix containing all of the major papers in a typical forum contest. Likewise, Chapter 9 contains the documents presented by both sides in a typical summary judgement proceeding. (We also think students will be fascinated with Chapter 10, which contains excerpts from the jury selection, court’s charge, and final arguments in Pennzoil Co. v. Texaco Inc.—the case that produced the largest jury verdict in history.) These materials are integrated with traditional appellate opinions, so that the skills the student develops through the case method can also be used to analyze the practice documents. We believe these “real world” materials will help the student to understand the theory of civil procedure better, as well as providing insight into what litigators do. “Improving the Systems”: Introducing Theoretical Issues at the Cutting Edge of the Law, Including Alternate Dispute Resolution. We would not be content, however, with introducing the student to current practice. A good lawyer needs to be able to grow with the law. In fact, he or she needs to think ahead of the current state of the law. Therefore, we have included sections in most chapters entitled “Improving the System.” We think these sections will help the student to think critically about current practice, and although the issues in the “Improving the System” section usually will have been raised earlier in the chapter, there is a benefit in looking at proposed improvements as a group. Our experience indicates that this method encourages deeper thought about the purposes of the Rules of Civil Procedure. A “User Friendly” Book. Above all, we have tried to produce a book that makes the fundamental easy for the student to grasp. Although Civil Procedure may be the most difficult course in the first-year curriculum (we have no illusions of making it truly simple), we have done our best to make our book “user friendly.” For example, particularly difficult cases are preceded by notes entitled “How to Read this Case.” The cases are edited with student comprehension in mid, and explanations of difficult principles are inserted in brackets. In a few instances, difficult cases are precede by problems designed to prepare the student in advance. Our notes and questions are self-contained; they do not require the student to consult outside sources. Our philosophy is that is it best for the student to come to class having actually understood the material in the book. The class then does not need to consist solely of helping to get across the basics, and the professor can raise more interesting issues. Supplementation of Traditional Federal Materials With an Introduction to Differing State Practices; Use of California, New York, and Texas as “Benchmark” States. It is traditional to emphasize the federal system in a beginning course in Civil Procedure. This book follow that emphasis. It provides the basis for a thorough understanding of the Federal Rules of Civil Procedure. One unique feature of the book, however, is that we have supplemented this fundamental federal emphasis with a brief look at the analogous procedures of three benchmark states: California, New York, and Texas. We selected these states because they do not follow the federal rules as closely as other states. Hence, comparative analysis is encouraged. In every chapter, the treatment of state practice is brief and does not detract from the major purpose of teaching the federal rules. We believe that an introduction to these benchmark states’ rules will stimulate deeper thought about the advantages and disadvantages of the federal rules.
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Human Rights in Internal Strife: Their International Protection
Theodor Meron
Ours is a world torn by violence and strife, characterized by cruelty of one human being to another. We observe around us an ever changing mosaic of confrontations, often defying simple or simplistic characterizations; ranging from situations of internal repression and tension to violent internal strife, internal armed conflict, civil war, internationalized-internal conflicts or international armed conflicts, and quite often various complex and mixed conflicts. Most of these situations of strife do not correspond to the classical models of civil and international wars, so central to Oppenheim—Lauterpacht’s vision of the world, although these situations continue to plague us too. Thus, a considerable part of the present activity of the International Committee of the Red Cross takes place outside of international or internal armed conflicts regulated by the Geneva Conventions of August 12, 1949, for the Protection of Victims of War. It occurs in situations of internal strife involving violence of lower intensity. Are situations of violent internal strife a passing or a lasting phenomenon? Authoritative predictions made by the ICRC and others support the latter forecast. These situations, which are neither war nor peace, are characterized by massive and brutal violations of human dignity. Since such strife situations are not only most frequent, but are apparently here to stay, the principal questions which I wish to address in this book is this: is the international community equipped with the necessary tools to cope with these proliferating situations of internal strife? Or is it treating the epidemic of today with the medicine of yesterday? Or perhaps without any effective medicine at all? Obviously, as international lawyers interested in human rights and humanitarian law, we would like to see a continuum of norms protecting the rights of the human person in all situations, especially in situations of strife accompanied by violence, whatever its level. In every situation of strife there should be a convergence of humanitarian and human rights norms, or at least one of these two systems of safeguards should apply and offer effective and adequate protections to the victims. My object is to explore whether there exists a dangerous lacuna in the area of internal strife, where humanitarian law meets with human rights law. If a lacuna is found to exist, does it reflect a norm-deficiency, or lack of respect for the existing law or, perhaps, both? And, depending on the diagnosis, what should the remedy be? My analysis will be two pronged, encompassing both humanitarian law and human rights law. I shall have to draw a wide panorama of these two systems of protection. I shall examine internal strife principally in relation to its characteristic general features, without reference to particular countries. Account of the situation in any single country inevitably prompt debate upon conflicting factual allegations, which would deflect us from our task of developing an understanding of the nature of internal strife and suggesting the necessary remedies.
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What Does It All Mean?: A Very Short Introduction to Philosophy
Thomas Nagel
In this cogent and accessible introduction to philosophy, the distinguished author of Mortal Questions and The View From Nowhere sets forth the central problems of philosophical inquiry for the beginning student. Arguing that the best way to learn about philosophy is to think about its questions directly, Thomas Nagel considers possible solutions to nine problems—knowledge of the world beyond our minds, knowledge of other minds, the mind-body problem, free will, the basis of morality, right and wrong, the nature of death, the meaning of life, and the meaning of words. Although he states his own opinions clearly, Nagel leaves these fundamental questions open, allowing students to entertain other solutions and encouraging them to think for themselves.
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Law and Social Change in Postwar Japan
Frank K. Upham
Many people believe that conflict in the well-disciplined Japanese society is so rare that the Japanese legal system is of minor importance. Frank Upham shows conclusively that this view is mistaken and demonstrates that the law is extensively used, on the one hand, by aggrieved groups to articulate their troubles and mobilize political support and, on the other, by the government to channel and manage conflict after it has arisen. This is the first Western book to take law seriously as an integral part of the dynamics of Japanese business and society, and to show how an informal legal system can work in a complex industrial democracy. Upham does this by focusing on four recent controversies with broad social implications: first, how Japan dealt with the world’s worst industrial pollution and eventually became a model for Western environmental reforms; second, how the police and courts have allowed one Japanese outcast group to use carefully orchestrated physical coercion to achieve wide-ranging affirmative action programs; third, how Japanese working women used the courts to force employers to eliminate many forms of discrimination and eventually convinced the government to pass an equal employment opportunity act; and, finally, how the Ministry of International Trade and Industry and various sectors of Japanese industry have used legal doctrine to cope with the dramatic changes in Japan’s economy over the last twenty-five years. Readers interested in the interaction of law and society generally; those interested in contemporary Japanese sociology, politics, and anthropology; and American lawyers, businessmen, and government officials who want to understand how law works in Japan will all need this unusual new book.
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Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man
Jeremy Waldron
In Nonsense upon Stilts¸ first published in 1987, Waldron includes and discusses extracts from three classic critiques of the idea of natural rights embodied in the 1789 Declaration of the Rights of Man and the Citizen. Each text is prefaced by an historical introduction and an analysis of its main themes. The collection as a whole in introduced with an essay tracing the philosophical background to the three critiques as well as the eighteenth-century idea of natural rights which they attacked. But the point of reproducing these works is not merely historical. Modern attacks on 'rights-based' political philosophy mirror the concerns of Bentham, Burke and Marx. Jeremy Waldron has therefore added an extensive concluding essay which relates these classic texts to the modern discussion of rights and re-examines the idea of rights in the light of contemporary critiques. This text provides an invaluable teaching tool for courses in politics and philosophy.
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'Nonsense upon Stilts': Bentham, Burke, and Marx on the Rights of Man
Jeremy Waldron
Waldron includes and discusses extracts from three classic critiques of the idea of natural rights embodied in the 1789 Declaration of the Rights of Man and the Citizen. Each text is prefaced by an historical introduction and an analysis of its main themes. The collection as a whole in introduced with an essay tracing the philosophical background to the three critiques as well as the eighteenth-century idea of natural rights which they attacked. But the point of reproducing these works is not merely historical. Modern attacks on 'rights-based' political philosophy mirror the concerns of Bentham, Burke and Marx. Jeremy Waldron has therefore added an extensive concluding essay which relates these classic texts to the modern discussion of rights and re-examines the idea of rights in the light of contemporary critiques. This text provides an invaluable teaching tool for courses in politics and philosophy.
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