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Civil Procedure: Cases and Materials

John J. Cound, Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton

This Sixth Edition, which has been prepared by Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton, had had the benefit of many comments of colleagues from the large number of schools in which the first five editions have been used. These responses have been gratifying in confirming our own conclusion that the book is a highly successful teaching tool, regardless of the precise form of the civil procedure course being taught or of the specific material covered in it. As a result, this Sixth Edition preserves the same basic format and much of the material found in the earlier editions. Why then is a new edition necessary? Certainly a revision cannot be justified simply to achieve relatively trivial improvements or merely to replace the original text with more recent matter of similar substantive content. The reason for this volume is that since publication of the Fifth Edition there have been important developments in several areas of procedure (for example, supplemental jurisdiction), which give rise to intellectually stimulating questions and policy considerations that require inclusion in a contemporary casebook. Thus, the illustrative cases presented in Chapter One have been revised, including the replacement of two cases. The chapter on jurisdiction has been reorganized into four separate chapters to improve the presentation of the material, and each of the new chapters has been reconceptualized and updated in light of recent Supreme Court decisions and other developments. The chapter on trials has been reorganized, reflecting the order of decisions that must be considered in pursuing civil litigation. The chapter on former adjudication has been substantially reworked, reflecting the preclusion issues posed by administrative and nonjudicial determinations. New sections, reflecting recent amendments to relevant statutes and to the Federal Rules of Civil Procedure, have been added to other chapters; and the chapter on alternative dispute resolution has been updated. In addition, discussion of the proposed amended Federal Rules dealing with Rule 11 and discovery has been included in the appropriate sections. Finally, introductory material, case notes, and citations to treatises, law review articles, and cases have been thoroughly revised and updated. We have looked for modern cases in which the facts are interesting, in which the conflicting policies seem to be in equipoise, or in which the context has extrinsic fascination, rather than for cases whose opinions offer tight little monographs on various aspects of procedure. After all, a student’s preparation and participation in class discussion frequently are in direct proportion to the extent to which the materials are interesting and involving. The notes and questions that follow nearly every principal case have been designed for the most part to encourage deeper analysis of the problems raised in the principal cases rather than to fill the student with additional detail. At the same time, we have tried to provide sufficient and selective references to secondary sources for the student who wishes to look further. We have not aimed at a “hard” book. Civil procedure is sufficiently mysterious to law students that its ability to challenge survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. In the textual survey in Chapter One, in the long not on “the nature of the trial process” in Chapter Fourteen and the in briefer introductions to other sections of the book, we have tried to tell students where they are going, and through extensive cross-referencing and questions we have tried to force them to review where they have been. We have not concentrated on the law of any one jurisdiction, although there is substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. In general the book operates on a comparative basis, except in contexts in which this approach has more limited utility than an in-depth exploration of a single system. A careful attempt has been made to strike a balance between exploration of underlying philosophical problems and analysis of day-to-day matters that arise frequently in office practice or in the courts. Our theory is that a mixture of both is necessary to give students a comprehensive understanding of procedure. How else can they learn why, even today, after so many years of study, revision, and reform, major proposals for alteration of adjective law are still being made, and, undoubtedly, will continue to be made in the years to come? In addition, considerable use has been made of historical material, not only when it is directly relevant to today’s system, as in the study of the right to jury trial, but also in contexts in which it is necessary for a true grasp of the basic problems. Because courses in civil procedure vary greatly not only as to the hours allotted but also as to whether they are mandatory or optional and as to the year during which students are expected to take them, the materials in this edition are designed to provide maximum pedagogical flexibility. The cases and subjects covered have been selected primarily for a comprehensive, year-long course beginning in the first term of the law student’s first year; yet they may easily be divided into two or more quite different subjects to be given either as preliminary or advanced courses. The first chapter of this casebook sets forth a basic textual statement of a procedural system’s framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. This we believe, is an important function of a course in procedure, especially when it forms part of the first year curriculum. The textual analysis, which can be assigned for study with little or no class discussion, is followed by a series of illustrative cases designed to raise the basic problems of a procedural system, to illustrate the interplay among its various aspects, and to highlight many of the points in the earlier text. An effort has been made to select cases that can be handled with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let students form some idea as to the nature of the litigation “forest” before attempting to make them master of any of its “trees.” After the first chapter, the structure of the book proceeds in a chronological fashion. The authors believe that this is the most logical way to teach civil procedure because it permits students to see the evolution and maturation of the litigation process. Furthermore, by putting personal and subject-matter jurisdiction and the materials dealing with the history of civil procedure before such subjects as pleading, joinder, and discovery, first year students are given some “breathing time” in which to absorb enough substantive law from torts, contracts, and property courses to enable them to grasp the significance of such matters as “pleading a cause of action,” “contributory negligence,” and “joint and several interests.” Finally, the authors have concluded that despite its conceptual difficulty, personal jurisdiction is a much more teachable and exhilarating introduction to civil procedure than is pleading. The chapters on jurisdiction include an extensive treatment of the federal courts. An investigation of a single system in detail seems the best war to impress students with the significance attached by courts to the concept of jurisdiction over the subject matter. The length of this material is greater than is customary in a civil procedure book, but part of it may readily be treated at the end of the course or be eliminated. We believe that without a working knowledge of such concepts as diversity of citizenship and supplemental jurisdiction, the procedural ramifications of the Erie doctrine and such indisputably procedural problems as joinder cannot be properly understood. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms (as many procedure casebooks do) would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with no substantial saving in time and probably at a cost in comprehension. At the same time we have eschewed the temptation to overcompensate for the disappearance of courses in equity; we have not attempted to cover the substantive doctrines of that discipline in a historical note. Although we believe history is invaluable to the study of modern procedure, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The materials in this volume refer to and are augmented by a Supplement, which contains not only the federal statutes and rules governing procedure, as is traditional, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance students are able to see the different solutions put forth for particular procedural problems and are induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. Use of the Supplement has the added advantage of permitting teachers and students to keep abreast of interesting alterations in the oftenchanging statutes and rules governing civil procedure, without constant revision of the casebook itself. All teachers of civil procedure are well aware of how difficult it is for students to grapple with problems in the abstract; for example in the field of pleading they may have only a vague notion of what a pleading looks like. The Supplement therefore also contains a litigation time-chart and an illustrative problem, showing how a case develop in practice and samples of the documents that might actually have formed a portion of the record. It is important to note that these samples are not designed as models to be emulated. To the contrary, they often contain defects intended to induce students to criticize them in light of knowledge they have obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. Except in a few situations, the materials from the Fifth Editions have not been significantly shortened in preparing the Sixth Edition. With regard to footnotes: the same numbering appears in the casebook as appears in the original sources; editor’s footnotes are indicated by letters.
Bargaining with the State

Richard A. Epstein

Bargaining with the State examines the threats to liberty that arise through the power of government selectively to distribute benefits and favors to its citizens. For Richard Epstein, the preservation of individual liberty against government contractual power advances not only the short-term interest of the individual citizen but also the long-term overall social welfare.
Civil Procedure

Jack H. Friedenthal, Mary Kay Kane, and Arthur R. Miller

This second edition of our Hornbook follows the same basic format and approach as the first. The primary revisions have been to update the volume in light of several very important legislative and judicial developments that have occurred since it was published in 1985. As was true then, our objective in this text has been to identify and discuss the significant aspects of civil procedure, both state and federal. We have not been deterred from exploring important questions merely because not all systems answer them alike. We also have tried to capture the complicated interrelationship between state and federal judicial systems in a coherent and systematic manner. Our approach is linear in time, beginning with the initial assertion of jurisdiction and challenged to it, progressing through framing the matters to be litigated, the parties, and trial preparation, and continuing on to judgments—their binding effect, their enforcement, and their review on appeal. The final Chapter is somewhat different in that it is not in chronological sequence. One of the fundamental challenges of our time is how the judicial system can cope with the increasing burden of complex, multiparty litigation that threatens to swamp our current procedural machinery, which really was devised for simpler disputes. That problem pervades from the beginning to the end of lawsuits. Thus, we have elected to gather all features of it in a single Chapter rather than distribute it throughout the text, which would create a risk of losing sight of it entirely, or, at the least, diminish its importance. In trying to attain the goal we describe, we have written a book far more comprehensive than any Civil Procedure course possible could be. But our purpose is broader than the mere creation of yet another student study aid. Students, as well as lawyers and even judges, often are called upon to learn about topics not covered in any law school course. Accordingly, we addressed ourselves to Civil Procedure in the broad sense, embracing topics and issues whether they typically are covered in law school or not, and whether federal or state in origin. We also have been attentive to history and have tried to articulate the policies that have governed procedural practices and have led to their modification over time. Certainly we do not claim that we have identified every procedural question that has or might arise. Nor have we provided answers to each of them. But we have tried to identify the important issue and to give readers sufficient information to allow them to understand what is at stake and why. So we think of our book as a beginning. Readers who wish to go further are provided with references to another more detailed source in which further inquiry can be pursued. Of the many instances of this throughout this volume, we call special mention to the numerous references to West Publishing Company’s multi-volume treatise, Federal Practice and Procedure. That work has been written by Charles A. Wright in collaboration with two of the authors of this book, Arthur R. Miller and Mary Kay Kane, and Edward H. Cooper, Kenneth W. Graham, Michael H. Graham, and Victor Gold.
Alice Walker: Critical Perspectives Past and Present

Henry Louis Gates Jr. and Kwame Anthony Appiah

Alice Walker has been honored with most of the major literary awards—including the Pulitzer Prize and the National Book Award for The Color Purple—clearly establishing her among the giants of American literature. She has achieved critical and commercial success not only through her five published novels, but for her short stories, poetry, essays, and other writings, and for a top-grossing feature film based on her first best-selling novel. She is among the few contemporary American literary figures who are studied in colleges and universities, and she has become a household name. Renowned scholars of African-American literature Henry Louis Gates, Jr., and K.A. Appiah have brought together reviews “drawn from newspapers and popular magazines to show Walker's accomplishments in the eyes of her literary contemporaries,” writes Gates, along with a “range of scholarly response.” A self-described womanist, Alice Walker has a following not only among women of color, to whom much of her work is addressed, but among women and men of all ethnicities in the academic and lay communities as well. This unique and revealing collection includes the points of view of writers such as Greil Marcus, author of Lipstick Traces; New York Times book critic Mel Watkins; Barbara Christian, author of Black Feminist Criticism; bell hooks, author of Black Looks; and others who represent the many and varied people who are influenced and affected by her work. In "To Try Men's Souls" Robert Coles writes, “Alice Walker is a fighter as well as a meditative poet and lyrical novelist. She has taken part in the struggles her people have waged, and also knows the struggles they must yet face in this greatest of the world's democracies. Mary Helen Washington, editor of Black-eyed Susans and Memory of Kin, expresses her belief that “the true empathy Alice Walker has for the oppressed woman comes through in all her writings—stories, essays, poems, novels.” Though Walker is described as a “lavishly gifted writer,” she is also subjected to respectful criticism. Alice Hall Petry, author of Understanding Anne Tyler, says, “As a short story writer, Alice Walker seems to alternate between presenting editorials as fiction, experimenting with the short story as a recognized literary form, and rather self-consciously writing ‘conventional’ short stories. At best the results are mixed.” The essays, reviews, a chronology, and two interviews with Alice Walker (in which she discusses her “craft”) help Alice Walker: Critical Perspectives Past and Present reveal the many dimensions of this fascinating writer and offer a unique way of appreciating and celebrating her work and the profound impact it has on her and on her students, peers, and readers around the world.
Gloria Naylor: Critical Perspectives Past and Present

Henry Louis Gates Jr. and Kwame Anthony Appiah

Gloria Naylor's first published book of fiction won her the American Book Award. The Women of Brewster Place was a dramatic launch for a successful literary career that is still on the ascendant. Like Alice Walker, Naylor has earned a reputation associated with both critical and commercial success; she is respected in academic circles and acknowledged in the world of popular culture. Both have had a best-selling novel translated into successful movies. Both are recognized as well for speaking out for the rights of women and on other social issues. Gloria Naylor: Critical Perspectives Past and Present documents the contributions of her work to the African-American and American literary traditions. Henry Louis Gates, Jr., and K.A. Appiah collected reviews that, Gates says, “attest to Naylor's important, if sometimes controversial, place in the expanding canon of American letters.” Culled from newspapers and magazines, reviews from writers such as Donna Rifkind have identified her as having a “commanding fictional voice” that “at its best, it's the kind of voice that moves you along as if you were dreaming. But it runs the risk, at its worst, of overpowering the voices of her own carefully imagined characters.” Naylor's work impresses scholars in part because she herself is one. Her novels are ambitious creations often inspired by her appreciation of literary masters such as Shakespeare, Dante, Morrison. Linden Hills, for example, is an adaptation of Dante's Inferno, while Mama Day wears the impression of Shakespeare's The Tempest and Toni Morrison's Song of Solomon. Gates and Appiah make the point, though, that Naylor is her own person. In one of the essays chosen for this volume Peter Erickson writes, “Naylor's work provides a valuable test case for how we are going to formulate a multicultural approach to literary studies. Naylor's interest in Shakespeare neither translates into kinship nor supports a mode of continuity; the main note is rather one of conflict and difference ... Shakespeare does not assimilate Naylor; Naylor assimilates Shakespeare.” This unique and revealing collection includes the wisdom and insight of other important figures in contemporary literature as well as a chronology of Naylor's life and career. There are novelists Rita Mae Brown, Bharati Mukherjee, and Sherley Ann Williams, as well as Barbara Christian, author of Black Feminist Literary Criticism. These informed perspectives offer academics and lay readers alike insight into Naylor the artist and Naylor the woman.
Langston Hughes: Critical Perspectives Past and Present

Henry Louis Gates Jr. and Kwame Anthony Appiah

With a career that spanned the Harlem Renaissance of the twenties and Black Arts movement of the sixties, Langston Hughes was the most prolific Black poet of his era. Between 1926, when he published his pioneering The Weary Blues, to 1967, the year of his death, when he published The Panther and the Lash, Hughes would write sixteen books of poems, two novels, seven collections of short stories, two autobiographies, five works of nonfiction, and nine children's books he would edit nine anthologies of poetry, folklore, short fiction, and humor. He also translated Jaques Roumain, Nicolás Guillén, Gabriela Mistral, Federico Garcia Lorca, and write at least thirty plays. It is not surprising that Hughes was known, variously, as “Shakespeare in Harlem” and as the “poet laureate of the American Negro.”
Richard Wright: Critical Perspectives Past and Present

Henry Louis Gates Jr. and Kwame Anthony Appiah

Since the 1940s, when Richard Wright published his best-selling Native Son, he has been one of the most widely read writers of his time and after. Many of Wright's stories were accounts of racially motivated violence that shocked the public at the time of publication and forced his readers to be aware of the horrors of racism in America. Henry Louis Gates, Jr., and K.A. Appiah, editors of Richard Wright: Critical Perspectives Past and Present, selected reviews of Wright's work by his contemporaries and colleagues, such as Zora Neale Hurston, Ralph Ellison, and Alain Locke—figures who now stand on their own in literary history. The editors join these reviews with essays by present-day scholars such as Houston Baker, Jr., author of Working of the Spirit and The Journey Back; Claudia Tate, author of Black Women Writers at Work; and Herbert Leibowitz, author of Fabricating Lives. This collection looks not only at Wright's seminal works of fiction, but at his nonfiction and autobiographical writings as well. Black Boy, published in 1945, is the first volume of Wright's autobiography and is “if not Wright's biggest book, it is perhaps his best, and surely his best written,” according to Dan McCall of American Poetry Review. The second volume, American Hunger, he said, “deserved high marks for the quality of its prose, but lacks the brutal intensity of the Southern context to give that writing its coherence and sustained power ... American Hunger extends Black Boy without enlarging it.” Students and fans of Wright cannot fully appreciate him as a writer or a man without acknowledging his political as well as literary life. Wright was a part of the communist movement and an expatriate. Claudia Tate wrote in the College Language Association journal that “when The Outsider appeared in 1953, even many of Wright's most supportive critics were disappointed by what they perceived to be the intrusion of his politics on his art. They contended that the novel was a literary contrivance based on foreign philosophy and left-wing political theory.” Wright made direct connections between his political work and his artistic work. “Through a Marxist conception of reality and society the maximum degree of freedom in thought and feeling can be gained for the Negro writer,” he said. Marxism, though, was no panacea for Wright; controversy followed him in that arena as well as every other he entered—from Mississippi to Europe and Africa. Wright drew on and opened himself up to many experiences at home and abroad as a writer and a man. From the publication of "Superstition" in Abbott's Monthly Magazine in 1931 until his death in 1960 and after, when both Eight Men and American Hunger were published, his accomplishments transcended the national and racial boundaries that were the grist for his creative mill. The enduring popularity of Richard Wright among lay readers and the academic community alike insures that Richard Wright: Critical Perspectives Past and Present is an important addition to the body of American literary criticism and the newly launched Amistad Literary Series, which is devoted to literary criticism and fiction by and about African-American writers.
Toni Morrison: Critical Perspectives Past and Present

Henry Louis Gates Jr. and Kwame Anthony Appiah

Toni Morrison has been described by the New York Times as “the closest thing the country has to a national writer.” Her third novel, Song of Solomon, earned her the National Book Critics Circle and the American Academy and Institute of Arts and Letters awards, and was the first novel written by an African-American writer to be selected for the Book-of-the-Month club since Richard Wright's Native Son. With six published novels, two anthologies, a volume of literary criticism, plays, and other published works behind her, she is one of the most celebrated American writers of her time. Henry Louis Gates, Jr., writes in the preface of Toni Morrison: Critical Perspectives Past and Present, coedited with K.A. Appiah, that “Morrison's greatest capacities as a writer are her ability to create a densely lyrical narrative texture that is instantly recognizable as her own, and to make of the particularity of the African-American ‘experience’ the basis for a representation of humanity tout court.” These critical perspectives are reviews from the popular press, essays—by such noted scholars and authors as Houston A. Baker, Jr., author of Workings of the Spirits, and Roberta Rubenstein, author of Boundaries of the Self—and interviews with Morrison that present her own perspective. This unique and revealing collection, which also includes a chronology of her life and career, offers insight and information useful to academic and lay readers alike. The critical essays explain how Morrison's work is influenced by writers such as Gabriel Garcia Marquez, William Faulkner, and James Baldwin; by Biblical scripture; and by Black music and speech rituals. They examine why Morrison's writing is “at once difficult and popular,” says Gates. When Sara Blackburn reviewed Morrison's first novel, The Bluest Eye, for the New York Times, she wrote that the novelist “reaped the benefits of a growing middle-class women's movement that was just beginning to acknowledge the reality of its black and poor sisters. As a result, her novel probably attracted more attention than it otherwise might have in the publishing industry and reviewers.” The factors of her success are debatable, but most agree that her place in the pantheon of the world's greatest literary figures is guaranteed.
Zora Neale Hurston: Critical Perspectives Past and Present

Henry Louis Gates Jr. and Kwame Anthony Appiah

Of the various signs that the study of literature in America has been transformed, none is more salient than is the resurrection and canonization of Zora Neale Hurston. Twenty years ago, Hurston's work was largely out-of-print, her literary legacy alive only to a tiny, devoted band of readers who were often forced to photocopy her works if they were to be taught ... Today her works are central to the canon of African-American, American, and Women's literatures ... The author of four novels, Jonah's Gourd Vine (1934), Their Eyes Were Watching God (1937),Moses, Man of the Mountain (1939), and Seraph on the Suwanee (1948) two books of folklore -- Mules and Men (1935) and Tell My Horse (1938) an autobiography, Dust Tracks On a Road (1942) and over 50 short stories, essays, and plays, Hurston was one of the most widely acclaimed Black authors for the two decades between 1925 and 1945.
Regulation of Lawyers: Statutes and Regulations

Stephen Gillers and Roy D. Simon Jr.

This book contains rules regulating the behavior of lawyers and judges. These rules come from many sources: statutes, administrative regulations, rules of evidence and procedure, and, most prominently, ethical codes. These rules continue to grow and change. The 1993 edition of the book has hundreds of changes, some of them substantial, from the 1992 edition. The most important ethical codes for lawyers are those promulgated by the American Bar Association, The ABA’s first effort at codifying ethical rules was the adoption of the Canons of Professional Ethics in 1908. These (as amended) remained in effect—though with diminishing influence—for 62 years. Effective in 1970, the ABA replaced the Canons with the Model Code of Professional Responsibility. Within a few years, every state had adopted the new Code in some form. States varied somewhat in their adoptions, changing a word here or a sentence there, but most of the variations were modest. The only variation that was truly different appeared in California, which rejected or substantially revised many of the Model Code’s Disciplinary Rules and deleted all of the Ethical Considerations. In 1977, the President of the American Bar Association appointed a new commission to prepare a new set of rules. That commission soon became known as the Kutak Commission, after Robert J. Kutak, an energetic and visionary lawyer from Omaha, Nebraska, who chaired the commission until his death in early 1983. After much debate and several drafts, the ABA House of Delegates approved the Model Rules of Professional Conduct on August 2, 1983. It is often instructive to compare the Model Rules as adopted with parallel provisions in the Kutak Commission’s drafts. Many of these parallel provisions are contained in the Legislative History sections following each Model Rule. It is also often instructive to compare the Model Rules as adopted with state variations governing the same conduct. The states have been giving careful attention to the Model Rules. As of fall 1992, more than 35 states and the District of Columbia have adopted all or significant portions of the Model Rules. Several states, including New York, Oregon, Vermont, and Massachusetts, have rejected the Model Rules. New York, however, has amended its Code to include provisions of the Model Rules. California also has chosen not to adopt the Rules, but has amended its Rules of Professional Conduct to incorporate Model Rules provisions. This book contains both the amended California Rules and the amended New York Code of Professional Responsibility. It also contains important statutory material from both California and New York and the New York court rules for sanctioning lawyers. Many states that have adopted the Model Rules have deviated from its “model” text in significant ways. Sometimes a state will opt for language derived from a draft of the Model Rules. Sometimes a state will choose to retain language contained in the Model Code of Professional Responsibility. Some jurisdictions, like Virginia, have adopted some provisions of the Model Rules but have retained the Code’s format. We have identified interesting state variations on particular Model Rules in a section called “Selected State Variations” following each Model Rule. While we have presented variations from dozens of American jurisdictions, we have concentrated on these: Arizona, District of Columbia, Florida, Georgia, Illinois, Michigan, Missouri, New Jersey, North Carolina, Pennsylvania, Texas, and Virginia. Several areas in which we see significant variation among jurisdictions or between drafts of the Model Rules and the final document include conflicts of interest (Rules 1.7, 1.8, 1.9, 1.10, and 1.11); fairness to opposing parties and counsel (Rule 3.4); relationships between lawyers and nonlawyers (Rule 5.4); and pro bono service (Rule 6.1). Two dominant concerns underlie the provisions containing these variations. The first concern is the proper scope of the lawyer’s loyalty to current and former clients, including the scope of the lawyer’s duty to protect client confidences. Competing demands on this loyalty come from the justice system, third person, other clients, and the lawyer’s personal or financial interests. The second concern is competition, from within and from outside the profession, in marketing and profiting from legal services. One question is whether nonlawyers. One question is whether nonlawyers should be permitted to invest in or share profits from organizations that sell legal services for a profit. This question brings up competition between lawyers and persons outside the legal profession. Another question is what limits should be placed on the ways in which lawyers compete with other lawyers. This question addresses issues of lawyer advertising and solicitation. Recently, a tangential issue has emerged: Should lawyers be permitted to own “ancillary” non-law businesses (such as title insurance companies, investment advisors, and real estate developers) that serve both clients and non-clients? By a slim vote, the ABA said “no” when it adopted Rule 5.7 in 1991. But only a year later, again by a slim margin, the ABA reversed course and said “yes,” repealing Rule 5.7. The areas we have identified are, we believe, those where controversy was most prominent and variation among jurisdictions most frequent and pronounced. But other provisions of the Model Rules were also seriously debated and are also the subject of variation among the states. As we show in the Legislative History sections for each Model Rule, the Kutak Commission’s early drafts usually differed markedly from the Rules as finally adopted. And as we show in the Selected State Variations sections for each Model Rule, the states have often adopted divergent provisions. The legislative history and the selected state variations for each Rule, together with our extensive California and New York materials, should thus dispel any misconception that the ABA Model Rules are “the rules.” The Model Rules are influential, but they continue to generate considerable disagreement. To make it easier to roam within the Model Rules, each Rule is followed by a list of cross-references identifying every other Rule or Comment that mentions the annotated Rule. These cross-references should help readers appreciate each Rule’s implications throughout the Rules as a whole. The Model Rules are only one source of authority and guidance within the legal profession. As our Related Materials show, lawyers may be subject to many obligations and restrictions beyond those imposed by the Model Rules. In addition, the Model Rules give little or no guidance in many areas of practice. We have therefore included other sources of authority such as federal statutes and regulations, rules of evidence and procedure, the tentative Restatement of Law Governing Lawyers (still in progress), and recently emerging creeds of courtesy and professionalism. We have also reprinted all or significant parts of several specialized codes, such as the ABA Standards for Criminal Justice, the ABA Standards of Practice for Lawyer Mediators in Family Disputes, the Bounds of Advocacy of the American Academy of Matrimonial Lawyers (whose Reporter was Professor Robert Aronson of the University of Washington Law School), the Code of Conduct for Lawyers in the European Community, a statement of good practices for law professors from the Association of American Law Schools, the Ethical Standards of Professional Conduct of the Society of Professionals in Dispute Resolution, and the Federal Bar Association’s Model Rules of Professional Conduct for Lawyers. Finally, judges are subject to special regulations beyond those that govern practicing lawyers. Some of these are in statutory law, such as §455 of title 28 of the United States Code. Others are in codes of judicial ethics. The most prominent ethics code is the ABA’s Code of Judicial Conduct, first promulgated in 1972 and adopted by 47 states and the District of Columbia. In 1990 the ABA revised the Code of Judicial Conduct. Although the revised document has not yet seen significant adoption, we reprint it rather than its predecessor, because it addresses issues the earlier Code ignored. Part III of the Report of the ABA Standing Committee recommending the new Code highlights principal changes from the predecessor. We reprint this part of the Report so readers can readily identify the significant revisions. In sum, this book presents a wide range of statutes, rules, regulations, and model codes that govern lawyers and judges. We have aimed to make these materials accessible and understandable, and to give readers an appreciation for the rich and variegated landscape of the regulations of lawyers.
The Anatomy of Antiliberalism

Stephen Holmes

Liberal: spoken in a certain tone, heard more and more often lately, it summons up permissiveness, materialism, rootlessness, skepticism, relativism run rampant. How has liberalism, the grand democratic ideal, come to be a dirty word? This book shows us what antiliberalism means in the modern world—where it comes from, whom it serves, and why it speaks with such a forceful, if ever-changing, voice. In the past, in a battle pitting one offspring of eighteenth-century rationalism against another, Marxism has been liberalism’s best known and most vociferous opponent. But with the fall of Communism, the voices of ethnic particularism, communitarianism, and religious fundamentalism—a tradition Stephen Holmes traces to Joseph de Maistre—have become louder in rejection of the Enlightenment, failing to distinguish between the descendants of Karl Marx and Adam Smith. Holmes uses the tools of the political theorist and the intellectual historian to expose the philosophical underpinnings of antiliberalism in its nonmarxist guise. Examining the works of some of liberalism’s severest critics—including Maistre, Carl Schmitt, Leo Strauss, and Alasdair MacIntyre—Holmes provides, in effect, a reader’s guide to antiliberal culture, in all its colorful and often seductive, however nefarious, variety. As much a mindset as a theory, as much a sensibility as an argument, antiliberalism appears here in its diverse efforts to pit “spiritual truths” and “communal bonds” against a perceived cultural decay and moral disintegration. This corrosion of the social fabric—rather than the separation of powers, competitive elections, a free press, religious tolerance, public budgets, and judicial controls on the police—is what the antiliberal forces see as the core of liberal politics. Against this picture, Holmes outlines the classical liberal arguments most often misrepresented by the enemies of liberalism and most essential to the future of democracy. Constructive as well as critical, this book helps us see what liberalism is and must be, and why it must and always will engender deep misgivings along with passionate commitment.
United States Economic Measures against Cuba: Proceedings in the United Nations and International Law Issues

Michael Krinsky and David Golove

The materials collected here represent the first systematic attempt to offer interested readers a balanced and scholarly account of the use of economic sanctions against Cuba; their evolution, their scope, and their problematic character under international law. In highlighting the pertinent issues of international law, making available inaccessible documentary materials, and providing interpretive and explanatory editorial guidance, this volume makes a significant contribution to a critical understanding of official U.S. policy toward Cuba, especially as assessed from the perspective of international law.
Costly Policies: State Regulation and Antitrust Exemption in Insurance Markets

Jonathan R. Macey and Geoffrey P. Miller

Examines the business of insurance which is exempt by law from federal antitrust regulation in the USA. This volume looks at the general pattern of regulatory federalism for the insurance industry, and considers the application of the law outside the antitrust area.
Henry's Wars and Shakespeare's Laws: Perspectives on the Law of War in the Later Middle Ages

Theodor Meron

Shakespeare's Henry V has traditionally been acclaimed for its impressive depiction of the psychological and political impact of warfare, and it remains one of the most widely-discussed plays in the canon. In this highly original, scholarly, and thought-provoking study Professor Meron uses rare medieval ordinances and other medieval and Renaissance historical and legal sources to provide challenging new contexts for Shakespeare's famous play. The result is a gripping account of how Henry V and other 'Histories' dramatically articulated complex medieval and Renaissance attitudes to warfare and the conduct of nations and individuals in time of war. The author uses the play and the campaign itself as a frame for the examination of the medieval laws of war, and examines stability and change in attitudes towards the laws of war.
Conscience and the Constitution: History, Theory, and Law of the Reconstruction Amendments

David A.J. Richards

At stage center of the American drama, maintains David A. J. Richards, is the attempt to understand the implications of the Reconstruction Amendments--Amendments Thirteen, Fourteen, and Fifteen to the United States Constitution. Richards evaluates previous efforts to interpret the amendments and then proposes his own view: together the amendments embodied a self-conscious rebirth of America's revolutionary, rights-based constitutionalism. Building on an approach to constitutional law developed in his Toleration and the Constitution and Foundations of American Constitutionalism, Richards links history, law, and political theory. In Conscience and the Constitution, this method leads from an analysis of the Reconstruction Amendments to a broad discussion of the American constitutional system as a whole. Richards's interpretation focuses on the abolitionists and their radical commitment to the "dissenting conscience." In his view, the Reconstruction Amendments expressed not only the constitutional arguments of a particular historical period but also a general political theory developed by the abolitionists, who restructured the American political community in terms of respect for universal human rights. He argues further that the amendments make a claim on our generation to keep faith with the vision of the "founders of 1865." In specific terms he points out what such allegiance would mean in the context of present-day constitutional issues.
United Nations, Divided World: The UN's Roles in International Relations

Adam Roberts and Benedict Kingsbury

This book, highly praised as an authoritative assessment of the United Nations and its place in international relations, brings together distinguished academics and senior UN officials in a clear and penetrating examination of how the UN has developed since 1945. It examines the UN's various roles in addressing long-standing and difficult problems in the relations of states in such fields as international security, human rights, international law, and economic development. This extensively revised, updated, and expanded edition takes into account a wide range of developments in a world which remains very much divided: the rapid expansion of UN peacekeeping and election-monitoring activities; the consequences of the collapse of communist rule in eastern Europe and the Soviet Union; the 1990-1 Gulf conflict and its aftermath; attempts at settlement of many regional conflicts; UN involvements in fractured societies, including Cambodia, Somalia, and former Yugoslavia; and the increased focus on the political and resource limits of the UN's capabilities. This edition also takes full account of new sources, writings, and debates. There are four completely new chapters, by Patricia Birnie (environmental protection), Sally Morphet (peacekeeping), Brian Urquhart (post-Cold War security), and Peter Wilenski (the UN's structure). An appendix contains the full text of Secretary-General Boutros-Ghali's important report, An Agenda for Peace, to which he has added an introduction for this book. United Nations, Divided World is also a key reference work. The appendices include a bibliography and the complete text of the UN Charter, with all amendments. They also include lists of member states and their assessed contributions, Secretaries-General, UN peacekeeping and observer forces, and judgments and opinions of the International Court of Justice.
Federalism in Taxation: The Case for Greater Uniformity

Daniel N. Shaviro

While the European Community is moving toward more uniform internal taxation, the United States in moving in the opposite direction. The relative prominence of state and local taxes is steadily increasing, together with the power of state and local governments to export tax burdens, impose high tax-planning and compliance costs on national businesses, and discriminate against interstate commerce. While arguing for greater national uniformity in taxation, the author recognizes that diversity in policy should reflect varying local preferences and preserve competition between state and local governments for businesses and residents. He believes that a proper balance between these ends and locational neutrality requires confining interstate tax competition largely to tax rates. The volume concludes with detailed suggestions for congressional action or, as an alternative, more stringent judicial review of state and local taxes that affect interstate commerce.
Passive Loss Rules

Daniel N. Shaviro

Prior edition of Tax Management Portfolio, Passive Loss Rules, No. 549-2d.
Liberal Rights: Collected Papers 1981-1991

Jeremy Waldron

This volume brings together a wide-ranging collection of the papers written by Jeremy Waldron, one of the most internationally highly-respected political theorists writing today. The main focus of the collection is on substantive issues in modern political philosophy. The first six chapters deal with freedom, toleration, and neutrality and argue for a robust conception of liberty. Waldron defends the idea that people have a right to act in ways others disapprove of, and that the state should be neutral vis-a-vis religious and ethical systems. The chapters that follow are concerned with socio-economic rights. Waldron argues that poverty and homelessness are not to be understood apart from the value of freedom. On the contrary our moral response to them should be based on the same values that underlie traditional liberal philosophy. The volume is a tribute to the resources and unity of the liberal political tradition.
The United Nations and Human Rights: A Critical Appraisal

Philip G. Alston and Frédéric Mégret

Human rights is a principal field of international cooperation in the world of the 1990s, with the United Nations as the central focus of these efforts, with the major challenge for the 1990s being to provide effective procedures and mechanisms both for sustained monitoring and for rapid and constructive responses to violations. This work examines the functions, procedures, and performance of each of the major bodies of the United Nations which deal with human rights. They also look at the relationships among the various organs and the potential for major reforms and restructuring. The contributors have all been close and active participants in the United Nations and include Declan O'Donovan, Laura Reanda, Roberta Jacobson, Andrew Byrnes, and Virginia A. Leary.
Children, Rights, and the Law

Philip G. Alston, Stephen Parker, and John Seymour

In November 1989 the General Assembly of the United Nations adopted the Convention on the Rights of the Child, heralding the arrival of a new era in the development of children's rights. Using the Convention as a framework, this volume re-evaluates the advantages and disadvantages of approaching issues of children's welfare and well-being through the lens of a “rights” approach. The authors take a fresh look at these issues, with specific reference to an international treaty that is certain to be ratified by a very large number of countries in every region of the world and which will soon be legally binding in many states. The contributors are Tom Campbell, Onora O'Neill, Michael Freeman, Ngaire Naffine, Margaret Coady, Tony Coady, Sheila McLean, Frances Olsen, and John Eekelaar.
Municipal Debt Finance Law: Theory and Practice

Robert S. Amdursky and Clayton P. Gillette

Municipal Debt Finance Law: Theory and Practice provides an examination of the legal principles underlying the issuance of debt by states and their political subdivisions. The book provides in-depth analysis of the conditions that must be satisfied prior to issuance of debt; state constitutional restrictions on the issuance of debt, such as the public purpose requirement, The prohibition on lending of credit, and debt limitations; the rights of bondholders; and federal regulation of municipal securities.
In My Father's House: Africa in the Philosophy of Culture

Kwame Anthony Appiah

The beating of Rodney King and the resulting riots in South Central Los Angeles. The violent clash between Hasidim and African-Americans in Crown Heights. The boats of Haitian refugees being turned away from the Land of Opportunity. These are among the many racially-charged images that have burst across our television screens in the last year alone, images that show that for all our complacent beliefs in a melting-pot society, race is as much of a problem as ever in America. In this vastly important, widely-acclaimed volume, Kwame Anthony Appiah, a Ghanaian philosopher who now teaches at Harvard, explores, in his words, the possibilities and pitfalls of an African identity in the late twentieth century. In the process he sheds new light on what it means to be an African-American, on the many preconceptions that have muddled discussions of race, Africa, and Afrocentrism since the end of the nineteenth century, and, in the end, to move beyond the idea of race. In My Father's House is especially wide-ranging, covering everything from Pan Africanism, to the works of early African-American intellectuals such as Alexander Crummell and W.E.B. Du Bois, to the ways in which African identity influences African literature. In his discussion of the latter subject, Appiah demonstrates how attempts to construct a uniquely African literature have ignored not only the inescapable influences that centuries of contact with the West have imposed, but also the multicultural nature of Africa itself. Emphasizing this last point is Appiah's eloquent title essay which offers a fitting finale to the volume. In a moving first-person account of his father's death and funeral in Ghana, Appiah offers a brilliant metaphor for the tension between Africa's aspirations to modernity and its desire to draw on its ancient cultural roots. During the Los Angeles riots, Rodney King appeared on television to make his now famous plea: People, can we all get along? In this beautiful, elegantly written volume, Appiah steers us along a path toward answering a question of the utmost importance to us all.
Cases and Materials on European Community Law

George A. Bermann, Roger J. Goebel, William J. Davey, and Eleanor M. Fox

A study of European Community law, always of interest since its creation, has taken on special importance in recent years. As the Community achieves its goal of an internal market and debates the ratification of the Maastricht Treaty, which would add new dimensions to its programs and policies, American lawyers and law students naturally seek to learn more about the Community. This casebook is intended to provide a basic understanding of the Community, its structure, goals, fields of action, achievements and aspirations, as well as to lay a foundation for further research, analysis and legal writing. There are many valid reasons to study Community law. We present here three of the most important ones. The most pragmatic reason is that the Community has become the largest trading partner of the US, constitutes the largest single market in the world, and represents a major site of investment for US firms. US lawyers, both international house counsel and outside counsel, can no longer afford to possess only a limited knowledge of Community structure, law-making processes, and substantive law. Community competition and trade law have long been staples of international practice. Today, the European Community’s harmonization of health, safety and technical standards, banking, securities and company law, environmental and consumer protection measures, and action in the fields of agricultural and social policy represent matters of practical concern to US lawyers. The Community’s efforts to move towards an economic and monetary union are also of great importance to the international business and legal world. Second, Community law is a rewarding field for comparative law study. This has long been true in competition and trade law, where academics and practitioners have found provocative points of comparison and contrast. Today a rich source of comparative study is to be found in the Community programs for harmonization of laws. In some fields, as in competition, environmental and securities law, the Community has been significantly influenced by US models, but still strikes certain different notes. In other fields, such as banking, company law, consumer protections and social policy, the Community has taken quite a different path from that of US law. The divergences between US and Community law should provoke thoughtful reflection on the context and underlying values of each system. Third, Community law provides a laboratory for study of law formation: the development of an entire legal system in modern times. The study includes the Community’s constitutional framework, its institutions, substantive legislation and judicial law, and the constant interplay of policy and politics in an evolving federal system, one comprised of nations having many commonalities but also divergent legal systems, demographics and interests. The casebook reward the student who has come to the course for any or all of these reasons. The book covers virtually all major fields of Community law. (We regret that space considerations prevented inclusion of certain important topics, such as public procurement, transport and the Convention on Jurisdiction and Judgments.) The notes and questions have been crafted to facilitate reflection on how and why the Community institutions, and especially the Court, have reached their conclusions. The text and notes make numerous comparisons with US law. The authors hope that the reader will achieve not only a good comprehension of Community law but also a critical one. The casebook is intended for use in US law schools, but it may also be suitable for faculties in Europe and elsewhere. Our casebook follows traditional US teaching methods which give central attention to primary materials such as legislation and court judgments, inviting students to examine these materials critically through focused questions. Accordingly, Court of Justice judgments and Community legislation are subjected to the same kind of analytic review as US laws and Supreme Court opinions would be in a standard constitutional law casebook. We hope that European professors and students will find that the process of analytic examination of judgments and legislation through questions will assist in a more reflective comprehension of Community rules and judicial doctrines. The authors also wish to make a comment on the casebook treatment of the Maastricht Treaty of European Union (TEU). We have carefully integrated the modifications produced by the TEU into the relevant textual coverage in order to facilitate an appraisal of the Community in its proposed new form. We have, of course, identified the TEU modifications as conditional upon the Maastricht Treaty’s ratification. As of the present date, both the pace and the ultimate outcome of the ratifications process are somewhat in doubt. It is certainly possible that the Maastricht Treaty will be supplemented by additional protocols or interpretive declarations in order to facilitate its ratifications. Many observers believe that the ratifications process has demonstrated a failure of the Member States’ leaders to convey to their citizens the reasons for the proposed Maastricht provisions, and a failure to allay fears of excessive centralization and bureaucratization in the Community. The Documents Supplement, which accompanies the casebook, contains the EEC Treaty, the Single European Act, and the Maastricht Treaty. Because they constitute the foundation of the Community legal system, they should be read in tandem with the casebook. Editors’ notes in the Documents Supplement try to make the interplay between these texts as clear as possible. The Documents Supplement also contains a large sample of important secondary legislation, excerpted lightly and with care. Students will profit from working with these complex legislative texts. The accessibility of these important Community documents should also be helpful in research. Finally, some comments on class treatment of the text. The casebook’s comprehensive coverage provides instructors with a variety of options to satisfy different course objectives. For a basic survey course (two or three credits), we recommend that most of Parts I and II be covered, because they are critical to a fundamental understanding of the Community. Obviously, parts of chapters or entire chapters can be omitted, especially in a two-credit course. We also recommend that a basic survey include Chapter 18 on competition policy, Chapter 26 on external relations and at least one chapter from Part V, such as environmental protections and consumer rights or equal rights for women. There should be sufficient time in a basic survey course to permit coverage of further chapters in either competition policy or trade policy, but not both, because the textual treatment of each topic is lengthy and complex. It is possible to teach a variety of advanced courses making use of parts of the casebook. For example, a course could concentrate entirely on Community competition and trade law, Parts III and IV. In the alternative, one could construct a comparative competition law or trade law course, using the relevant part of the casebook together with materials on US or other nations’ antitrust or trade law. And advanced course might also center on the Community’s integrated internal market, including the chapters on harmonization of laws, services, establishment and capital from Part II and the social policy, environmental and consumer rights, and monetary union chapters from Part V. Finally, a course in comparative federalism might take selected portions of the casebook and add US, Canadian, German, Swiss or other materials. We hope that the casebook will prove easy to use and highly instructive, and that it will stimulate further scholarship centered on this rich field of study, the European Community.
Administrative Law and Regulatory Policy: Problems, Text, and Cases

Stephen G. Breyer and Richard B. Stewart

In this Third Edition, we have revised the Casebook to take account of new cases, changing doctrine, and new problems facing those who administer the federal government. We call attention her to three major ways in which we have changed the materials. First, we have changed, and deepened, the discussion of classical administrative law in light of new cases that affect preexisting doctrine. A host of recent Supreme Court cases, discussing “separation of powers” doctrine (and underscoring the importance of Crowell v. Benson) has led us, for example, to rework and to emphasize our “separation of powers” materials in Chapter Two. Similarly, we have expanded our discussion of “review of law” in Chapter Four to encompass the current debate about the significance of the Chevron doctrine—just what it means and the extent to which it changes prior law. We have added throughout Supreme Court cases that summarize existing law (particularly in the “due process” area), that may foreshadow change, and that provoke thought and discussion. Second, we have modified and enhanced our discussion of substantive health and safety regulation, such as the problem of regulating risk. We have also asked how the Executive Branch can coordinate and control its many agencies when they engage in regulation of this sort, and we point to its efforts to do so through the Office of Management and Budget. Third, we have changed the organization of our discussion of rulemaking and adjudication. We have placed the materials related to this subject in an expanded Chapter Six—which beings with the constitutional distinction between rulemaking and adjudication, then discusses the relevant statutes and case law, and ends with a discussion of the Constitution’s “due process” requirements. We have reorganized in order to achieve additional clarity of presentation. For example, we believe that current “informal rulemaking” law can best be understood by considering in order (a) the limitation of formal rulemaking stemming from Florida East Coast, (b) the subsequent “formalization” of informal rulemaking, (c) the current “disenchantment” with time consuming procedure, and (d) the search for “exceptions.” Our primary objective in revising this chapter, as in making numerous other organizational changes, is clear, coherent presentation of the subject matter for teaching purposes. Our general aim in this edition, of course, remains the same as in our two previous editions. We wish the student to understand Administrative Law, classically conceived as involving questions of procedure and of relations among the courts and other branches of government. We believe, however, that such an understanding is possible only if the student also understands the relation between such questions and substantive regulation. Thus, we continue to use substantive regulatory examples to enrich a basically procedural course. These examples have proved useful in the course that we teach, and we hope they will work for others as well.