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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. One of the purposes of this Edition is to update such matters as supplemental jurisdiction, personal jurisdiction, diversity, removal, venue, disclosure, class actions and other issues, which have changed significantly in recent years. In some instances, the changes have required reorganization, to make the material clear and accessible. Special Feature. However, there is more to the book than traditional organization and approach. The following is a description of some of the special features that we have included. 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.) We believe that these “real world” materials will help the student to understand the theory of civil procedure better, as well as providing insights into what litigators do. Problems, Including “Chapter Summary Problems.” Most of the chapters contain problems. For the most part, the problems in the first four chapters are simple. In this difficult course, it sometimes happens that a complex problem is not as helpful to the real goal of student understanding as a simpler one that clearly illustrates the application of the principles the student has learned. In later chapters, some of the problems are more difficult. In addition, the Second Edition contains “Chapter Summary Problems” for most chapters. These more comprehensive problems call for composite knowledge of the difficult parts of each chapter, requiring the student to “put the chapter together” and to apply what she has learned. These Chapter Summary Problems are placed early in the chapter, encouraging the student to think about the issues beforehand; but they can be answered only after the student has confronted the materials in the chapter. Thus the Second Edition allows the professor the flexibility to use a true “problem approach”—or, if she desires, she may simply omit one or all of these Chapter Summary Problems and employ traditional methods. “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 there is a benefit in looking at proposed improvement as a group. Our experience indicates that this method encourages deeper thought about the purposes of the Rules of Civil Procedure. Furthermore, the last chapter contains thorough coverage of alternate dispute resolution (“ADR”) methods (mediation, settlement, arbitration, conciliation, etc.) that have become prevalent recently. 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.”
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Forbidden Grounds: The Case Against Employment Discrimination Laws
Richard A. Epstein
This timely and controversial book presents powerful theoretical and empirical arguments for the repeal of the anti-discrimination laws within the workplace. Richard Epstein demonstrates that these laws set one group against another, impose limits on freedom of choice, unleash bureaucratic excesses, mandate inefficient employment practices, and cause far more invidious discrimination than they prevent. Epstein urges a return to the now-rejected common law principles of individual autonomy that permit all persons to improve their position through trade, contract, and bargain, free of government constraint.
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Regulation of Lawyers: Problems of Law and Ethics
Stephen Gillers
Titles 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, court rules, 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, confidentiality, conflicts of interest, negotiation, and the attorney-client relationship: what may you do, how may you behave, with confidence that your conduct will not land you before a disciplinary committee 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 may also affect whether, and how, large categories of people use lawyers and the size of legal fees. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about the client will control the lawyer’s individual conduct, but it may also affect which client populations use lawyers and how. In short, nearly every rule, whatever its source, has social and political consequences beyond any single representation, 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 in asking “What are the consequences to society and justice if one or another version of a particular ethical rule is applied to America’s more than 800,000 lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses. Why? In part because to answer them we must call upon political and moral values more fundamental than the “ethics” that inform various codes; and, of course, 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. In transition as you are, your answers to many of the questions raised in this book will likely vary from what they would have been before you entered law school and may change again when you become a practicing lawyer. At the outset I wrote that rules governing the practice of law can be discussed from three perspectives, and I have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on self. For example, a rule that requires silence though it means that another will suffer injustice may cause great discomfort to those who must obey it. As men and women, we consider it laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. 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 clients, even if those 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 that he or she might find morally repugnant if performed outside the professional role, but the way that professional service (and the culture of law practice) affect 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 learn 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 seven years ago, little had been written about these conflicts. Now there is much more, though not perhaps as much as appears about Rule 10b-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 Regulations with Recent Supreme Court Decisions
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 Many jurisdictions 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-references, 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 the features discussed below will enhance your understanding of the Model Rules. Cross-References in the Rules: After each Model Rule, we have quoted every cross-reference to that Rule appearing elsewhere within the text or comments to the Model Rules. These cross-references illustrate each Rule’s implications throughout the Rules as a whole. Legislative History: The Model Rules have a rich legislative history. Drafts were circulated to the bar in 1980, 1981, and 1982. Where these drafts differ significantly from a Rule as finally adopted, we have included them in a Legislative History section after each Rule. This legislative history will help students to understand the choices that the ABA made in adopting the Rules. State Variations: More than 35 jurisdictions have now adopted the Model Rules (or significant provisions from them) in some form, but there are notable variations among the jurisdictions, especially with respect to such crucial matters as conflicts and confidentiality. We have quoted interesting selections from various jurisdictions following each Rule. We have paid special attention to nine Rules jurisdictions and also to New York, which amended its version of the Code of Professional Responsibility in 1990, and to California, which has a unique set of rules and statutes. These state variations graphically illustrate the disagreements over how lawyers should conduct themselves and will provoke heated class discussions about the best way of treating particular issues. Related Materials: Law school courses in professional responsibility typically focus on the ABA Model Rules of Professional Conduct. Students therefore may not realize that there are also many other sources of guidance for lawyers. These other sources of guidance include statutes, cases, regulations, court rules, rules of evidence and procedure, and specialized or alternative codes of ethics. The Related Materials sections following each Model Rule call attention to many of these other sources. We have also reprinted many of them elsewhere in our book, including the ABA Standards for Criminal Justice, attorney-client privilege materials, a Code of Professional Responsibility for Matrimonial Lawyers, Standards of Practice for Lawyer Mediators in Family Disputes, ethical standards for neutrals in dispute resolution, a Code of Ethics for Arbitrators in Commercial Disputes, sanctions from the Federal Rules of Civil and Appellate Procedure, several creeds of courtesy and professionalism, and some 1989, 1990, and 1991 Supreme Court cases. In addition, our Related Materials sections quote many provisions from the American Lawyer’s Code of Conduct, which contains interesting alternative ideas, and from the old ABA Canons of Professional Ethics, which governed American lawyers from 1908 until 1970. Taken together, these related materials should impress upon students that ta state’s rules of professional conduct are but one of many sources that scholars and lawyers should research when deciding what is or should be required in a given situation. To put all of these 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 filed of regulation of lawyers, with special emphasis on the ABA Model Rules and Model Code, including their legislative history and the patterns in state variations. New York and California Materials In California, substantially revise Rules of Professional Conduct took effect on May 27, 1989. After each ABA Model Rule, our State Variations sections cite the comparable sections of the California rules of Professional Conduct and the California Business and Professions Code. Conversely, for each sections of the California Rules of Professional Conduct, we have cited comparable or related provisions in the ABA Model Rules, the California and Business Professions Code, and the old California Rules (which were in effect from 1975 until May 27, 1989). In New York, a substantially revised Code took effect on September 1, 1990. Our State Variations sections indicate whether New York’s new Code provisions differ in any significant way from the ABA Model Code of Professional Responsibility. Wherever New York’s comparable Code provision differs from the ABA Model Code, we have reprinted the New York provision in our New York materials. Some Changes in the 1992 Edition This edition of the book contains many changes that will make it more useful. Among them are: Expanded comparative coverage by highlighting significant differences in ethics rules in nine jurisdictions in addition to the comprehensive treatment of rules in California and New York. New ABA Rule 5.7, amended Rule 8.3(c), can excepts from corresponding Committee Reports. The Model Rules of Professional Conduct for Federal Lawyers, adopted by the Federal Bar Association in 1990 to replace the Federal Ethical Considerations. Significant provisions appear under Related Materials to the Model Rules. The 1990 and 1991 changes in Chapters 4, 5, and 8 of the ABA Standards for Criminal Justice. Provisions from drafts of the ALI’s Restatement of the Law Governing Lawyers, contained in the Related Materials sections under the Model Rules. The Restatement’s attorney-client privilege rules appear at pages 536-541. Proposed amendments to the California Rules of Professional Conduct. Of particular interest is a proposed new rule on sexual relations between lawyers and clients that would be the first of its kind in the nations. The ABA Canons of Professional Ethics, which are found in the Related Materials. A new table cross-references them to the Model Rules. 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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Idolatry
Moshe Halbertal, Avishai Margalit, and Naomi Goldblum
“You shall have no other gods besides Me.” This injunction, handed down through Moses three thousand years ago, marks one of the most decisive shifts in Western culture: away from polytheism toward monotheism. Despite the momentous implications of such a turn, the role of idolatry in giving it direction and impetus is little understood. This book examines the meaning and nature of idolatry—and, in doing so, reveals much about the monotheistic tradition that defines itself against this sin. The authors consider Christianity and Islam, but focus primarily on Judaism. They explore competing claims about the concept of idolatry that emerges in the Hebrew Bible as a “whoring after false gods.” Does such a description, grounded in an analogy of sexual relations, presuppose the actual existence of other gods with whom someone might sin? Or are false gods the product of “men’s hands,” simply a matter of misguided belief? The authors show how this debate, over idolatry as practice or error, has taken shape and has in turn shaped the course of Western thought—from the differentiation between Jewish and Christian conceptions of God to the distinctions between true and false belief that inform the tradition of religious enlightenment. Ranging with authority from the Talmud to Maimonides, from Marx to Nietzsche and on to G. E. Moore, this brilliant account of a subject central to our culture also has much to say about metaphor, myth, and the application of philosophical analysis to religious concepts and sensibilities. Its insights into pluralism and intolerance, into the logic and illogic of the arguments religions aim at each other, make Idolatry especially timely and valuable in these days of dark and implacable religious difference.
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The International Politics of the Environment, Actors, Interests, and Institutions
Andrew Hurrell and Benedict Kingsbury
The most pressing environmental issues, such as global warming, ozone depletion, water and air pollution, deforestation, and the loss of biodiversity generate enormous tasks for science, technology, and economic and social organization. But the seriousness and global scale of these problems also pose new challenges for international relations and demand new forms of co-operation between states. Is such co-operation possible? How can states negotiate workable international environmental agreements and implement them effectively? This book brings together leading specialists to assess the strengths, limitations, and potential of the international political system for global environmental management. Overview chapters examine the processes of international environmental negotiation, law-making, and regime formation, and explore the difficulties of implementation and enforcement. Experts close to particular institutions consider the environmental and developmental roles of the United Nations, the World Bank, and the European Community. Other chapters explore the conflicts of interest between states, especially between North and South, the increasingly central role of NGOs, and the problems of economic analysis and decision-making in the face of uncertainty, with particular reference to global climate change. Case studies of Brazil, Japan, and the United States explore critical factors influencing international environmental policy. This collection provides an authoritative and timely analysis of the political, economic, and moral issues at stake in international environmental co-operation.
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Banking Law and Regulation
Jonathan R. Macey and Geoffrey P. Miller
This is a book about banking law and regulation. By “banking law” we mean not only the law applicable to traditional commercial banks, but also the pattern of regulation governing other depository institutions (institutions that accept checking account deposits from customers) such as savings and loans, savings banks, and credit unions. Reference will also occasionally be made to other types of financial institutions such as securities firms, pension funds, and life insurance companies, which are increasingly offering “bank-like” services. Accordingly, the scope of the book is broader than traditional commercial banks. At the same time, we do not treat all legal issues affecting the business of depository institutions. Banks and thrifts confront many thorny questions in the handling of negotiable instruments such as checks. We leave the legal rules applicable to negotiable instruments to course on the Uniform Commercial Code. Banks also face a variety of legal problems in making and collecting on loans; for the most part these problems are also outside the scope of this book, although we do treat the burgeoning question of lender liability in Chapter 3. Finally, banks like other firms, must comply with all sorts of federal and state regulations applicable to businesses generally, such as rules regulating securities issuance, prohibiting discrimination in employment, governing relationships with unions, and much more. These topics are treated in the relevant substantive law courses such as securities regulation, employment discrimination, and labor law. This book is structured as follows. Chapter 1 provided and introduction and overview, including a discussion of banking history, which in our opinion is essential to an understanding of the current structure of banking regulation. Chapters 2 and 3 consider the regulations governing entry into the business of banking and regulator limitations on the business operations of banking institution. Chapter 4 expands the coverage to consider the regulation of bank holding companies and their coverage to consider the regulation of bank holdings companies and their affiliates. Chapter 5 treats geographic restrictions on bank expansion. Chapter 6 discusses the securities powers of banks, one of the most controversial contemporary issues in bank regulation. Chapter 7 examines regulatory enforcement powers, and Chapter 8 looks at bank failure. Finally, Chapter 9 addresses the topic of international banking and the ever-increasing “globalization” of financial institutions law. Accompanying this book is a statutory supplement. Because banking law is so heavily statutory in focus, frequent reference to the governing legislation is essential. Although the casebook quotes key language from the most important statues, a full understanding of banking law requires close reading of all the relevant statutes. Accordingly, we encourage students to study the statutory language carefully as well.
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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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Human Morality
Samuel Scheffler
Some people believe that the demands of morality coincide with the requirements of an enlightened self-interest. Others believe that morality is diametrically opposed to considerations of self-interest. This book argues that there is another position, intermediate between these extremes, which makes better sense of the totality of our moral thought and practice. Scheffler elaborates this position via an examination of morality's content, scope, authority, and deliberative role. Although conflicts between morality and self-interest do arise, according to this position, nevertheless morality is fundamentally a reasonable and humane phenomenon. Moreover, the psychological bases of effective moral motivation have sources deep within the self, and morally motivated individuals try to shape their own interests so as to avoid conflict with morality. Since human practices and institutions help to determine the prevalence of these motives, and since in this and other ways they influence the degree to which conflicts between morality and self-interest actually occur, the extent of such conflict is not fixed or immutable, and is in part a social and political issue.
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The Bill of Rights in the Modern State
Geoffrey R. Stone, Richard A. Epstein, and Cass R. Sunstein
Although the Bill of Rights has existed for two hundred years, the last half century has seen dramatic changes in its meaning and scope. The essays collected in this volume represent the full range of views and interpretations of what these first ten amendments to the U. S. Constitution mean today as guarantors of individual rights. The contributors to this volume are among the most prominent constitutional scholars in the country. Most of the essays are grouped in pairs, each of which offers conflicting positions on current constitutional controversies, including property rights, freedom of religion, freedom of speech, levels of generality in constitutional interpretation, and unenumerated rights. The contributors are: Bruce Ackerman, Mary E. Becker, Ronald Dworkin, Frank H. Easterbrook, Richard A. Epstein, Charles Fried, Mary Ann Glendon, Philip B. Kurland, Frank J. Michaelman, Michael W. McConnell, Richard A. Posner, Kathleen M. Sullivan, John Paul Stevens, David A. Strauss, and Cass R. Sunstein.
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The UN Children's Convention and Australia
Philip G. Alston and Glen Brennan
The theme running through all of the papers is that while ratification of the Convention is one thing; its implementation is quite another. In other words, while formal acceptance of the obligations contained in the Convention is a relatively straightforward process, the transformation of its many provisions into Australian law, policy and practice is infinitely more complex and demanding. The papers in this volume seek to identify and explore some of the key issues which arise In that regard. In addition, because of the value of comparing Australian approaches to those of some of our peers in the community of nations, international perspectives from Canada, New Zealand, the United Kingdom, and the United States are also included.
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Avenging Angel
Kwame Anthony Appiah
A fifty-year-old secret leads to murder among the members of an elite Cambridge University society. David Viscount Glen Tannock, handsome scion of a noble Scottish family, was a brilliant and charming student, adored by his friends, admired by his acquaintances. His apparent suicide looks, therefore, like a tragic and inexplicable conclusion to a very promising life. But his cousin, Sir Patrick Scott, a prominent barrister with a reputation as a sleuth, seriously doubts the accepted verdict. With the indulgence of the local constable, Scott digs deep into the University's clannish community. As a member of the ancient and exclusive Cambridge society known as "The Apostles," David had been surrounded by the brightest minds that Cambridge had to offer, a veritable intelligentsia of the ancient college. And because he, too, was an Apostle in his university days, Sir Patrick can call upon this secret network to help in his investigation. When a brilliant scientist, working with fast-acting poisons, is also found dead in his laboratory, Scott knows there's a killer on the loose and that he has a truly Apostolic puzzle to solve. But even his fellow Apostles can't be trusted. A midnight tryst closely observed; a suspicious check for a large amount of money; a poisoned pipe; a Russian connection; a significant lie from the dead youth's tutor; a succession of threatening notes in Latin - all contribute to fears of a murderous plot to wipe out "The Apostles" one by one. Anthony Appiah has produced a marvelously urbane, elegantly written mystery in the best English tradition. Anthony Appiah is a graduate of Cambridge University . He is currently a professor at Duke University in Durham, North Carolina. Avenging Angel is his first novel.
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Whose New World Order: What Role for the United Nations?
Mara R. Bustelo and Philip G. Alston
Collection of 13 essays by Australian politicians, diplomats and public servants on the future of the United Nations in the wake of the Gulf War and the end of the Cold War. Topics covered include the lessons to be learnt from the conflict, structural change to the United Nations and the role of the UN in international law, economic and social issues, human rights and dispute settlement. Contributors include Senator Gareth Evans, Connie Peck, John Braithwaite and retired UN political adviser Sir Brian Urquhart.
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Gigs: Jazz and the Cabaret Laws in New York City
Paul G. Chevigny
Gigs is the story of a cultural scandal in New York City that lasted for two generations. Paul Chevigny, a noted lawyer who represented musicians in the case documented in this book, examines the persistence of New York’s “cabaret” ordinances as a means of control and repression of popular entertainment.
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Labor Relations Law in the Public Sector: Cases and Materials
Harry T. Edwards, R. Theodore Clark Jr., and Charles B. Craver
The aim of this revision is to bring Labor Relations Law in the Public Sector up-to-date as of approximately January 1, 1991. We have retained the basic organizations structure of the casebook, since this has proved to constitute a logical and practical arrangement of the material. We plan to continue our practice of publishing annual supplements, so that the book will be current at the beginning of each academic year. This casebook contains more material than would normally be covered in a two- or even three-hour course. We believe that each teacher should have the opportunity for personal selection. One may consider the initial development of the collective bargaining obligation to be of primary importance, while another may wish to concentrate upon the rights and duties which exist after a bargaining representative has been selected. Both should find ample material to satisfy their pedagogical objectives.
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Revitalizing Antitrust in Its Second Century: Essays on Legal, Economic, and Political Policy
Harry First, Eleanor M. Fox, and Robert Pitofsky
America has entered its second century of antitrust law. The United States has come through the 1980s of laissez faire when antitrust had its lowest profile since the Hoover days, lawyers advised clients that anything goes, and theorists justified non-enforcement of the law by Chicago School economics--the claim that antitrust exists only to create efficiency and that business freedom creates efficiency. Meanwhile, the European Community has a developing body of antitrust law. It rejects the Chicago School as ignoring market realities, and it incorporates into its law values of opportunity, access, open markets and the right to be free from exploitation. The newly democratized European nations and Russia all have moved to market economies and adopted antitrust law in the image of the European Community, in spite of the carpet baggers trying to sell laissez faire. The Supreme Court of the United States has now reversed the swing of the U.S. antitrust pendulum, rejecting Chicago School theory in favor of market reality and accepting the fact that there is an antitrust right not to be coerced and abused by market power. What is the intellectual foundation of this new antitrust--this law that respects efficiency, progressiveness, access, and freedom from abuse of power, and which reflects the need of business firms to be active and agile players in a global marketplace? That foundation is contained in Revitalizing Antitrust in its Second Century. This is the only book that provides the underpinnings for the new antitrust. It is the only book that helps the scholar/lawyer/business advisor/student understand the direction of antitrust and how to predict the course of the law. Four of the authors in the book were cited by the Supreme Court in its June opinion; one was cited eleven times. Revitalizing Antitrust in its Second Century is an indispensable volume for lawyers, economists, business advisors, scholars and students of law, economics, business and political economy.
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Regulation of Lawyers: Statutes and Standards with Recent Supreme Court Decisions
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 Many jurisdictions 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-references, 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 the features discussed below will enhance your understanding of the Model Rules. Cross-References in the Rules: After each Model Rule, we have quoted every cross-reference to that Rule appearing elsewhere within the text or comments to the Model Rules. These cross-references illustrate each Rule’s implications throughout the Rules as a whole. Legislative History: The Model Rules have a rich legislative history. Drafts were circulated to the bar in 1980, 1981, and 1982. Where these drafts differ significantly from a Rule as finally adopted, we have included them in a Legislative History section after each Rule. This legislative history will help students to understand the choices that the ABA made in adopting the Rules. State Variations: More than 30 states have now adopted the Model Rules in some form, and there are significant variations among the states, especially with respect to such crucial matters as conflicts and confidentiality. We have quoted interesting selections from the states after each Rule. (We have paid special attention to New York, Illinois, Texas, and the District of Columbia, which adopted or made effective their own versions of the Model Rules in 1990, and to California, which has a unique set of rules and statutes.) These state variations graphically illustrate the disagreements over how lawyers should conduct themselves and will provoke heated class discussions about the best way of treating particular issues. Related Materials: Law school courses in professional responsibility typically focus on the ABA Model Rules of Professional Conduct. Students therefore may not realize that there are also many other sources of guidance for lawyers. These other sources of guidance include statutes, cases, regulations, court rules, rules of evidence and procedure, and specialized or alternative codes of ethics. The Related Materials sections following each Model Rule call attention to many of these other sources. We have also reprinted many of them elsewhere in our book, including the ABA Standards for Criminal Justice, attorney-client privilege materials, a Code of Professional Responsibility for Matrimonial Lawyers, Standards of Practice for Lawyer Mediators in Family Disputes, Ethical Considerations for Lawyers in Federal Government Service, ethical standards for neutrals in dispute resolution, a Code of Ethics for Arbitrators in Commercial Disputes, sanctions from the Federal Rules of Civil and Appellate Procedure, several recently developed creeds of courtesy and professionalism, and some 1989 and 1990 Supreme Court cases. In addition, our Related Materials sections quote many provisions from the American Lawyer’s Code of Conduct, which contains interesting alternative ideas, and from the old ABA Canons of Professional Ethics, which governed American lawyers from 1908 to 1970. Taken together, these related materials should impress upon students that a state’s rules of professional conduct are but one of many sources that lawyers should consider when deciding what to do in any given situation. To put all of these 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 variations. New York and California Materials In California, substantially revise Rules of Professional Conduct took effect on May 27, 1989. After each ABA Model Rule, our State Variations sections cite the comparable sections of the California rules of Professional Conduct and the California Business and Professions Code. Conversely, for each sections of the California Rules of Professional Conduct, we have cited comparable or related provisions in the ABA Model Rules, the California and Business Professions Code, and the old California Rules (which were in effect from 1975 until May 27, 1989). In New York, a substantially revised Code took effect on September 1, 1990. Our State Variations sections indicate whether New York’s new Code provisions differ in any significant way from the ABA Model Code of Professional Responsibility. Wherever New York’s comparable Code provision differs from the ABA Model Code, we have reprinted the New York provision in our New York materials. 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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Trial Manual for Defense Attorneys in Juvenile Court
Randy A. Hertz, Martin Guggenheim, and Anthony G. Amsterdam
THE NATURE AND PURPOSE OF THE MANUAL This MANUAL is a how-to-do-it guidebook for handling juvenile court cases from beginning to end. It differs from most books about juvenile court, which typically begin with an examination of the history and philosophy of juvenile court and thereafter focus (exclusively or predominantly) upon the aspects of juvenile practice that differ from adult criminal procedure. The MANUAL pretermits any discussion of purely academic, historical, or philosophical matters and deals exclusively with the tasks, skills, rules of law, and issues of strategic judgment involved in representing clients in juvenile court. Rather than ignoring those aspects of juvenile proceedings that mirror adult criminal practice, the Manual examines them at every stage. The Manual covers all of the types of cases likely to be handled by a practitioner in juvenile court. Part I, consisting of Chapters 2-39, covers juvenile delinquency cases. Representation of Persons In Need of Supervision (PINS) (called, in some jurisdictions, Children in Need of Supervision (CHINS) or “incorrigibles”) is covered in Part II, which consists of Chapter 40. Part II assumes that the PINS practitioner will read the delinquency chapters, since delinquency practice is virtually identical to PINS practice; Chapter 40 simply explains the few respects in which PINS practice differs from delinquency practice. Child protective proceedings—actions against parents for abuse or neglect of their children and proceedings to terminate parental rights—are covered in Part III, Chapters 41-48. This Manual is, quite consciously, a manual for defense attorneys. The delinquency and PINS chapters are written for attorneys defending children who are the subject of a Petition in a delinquency or PINS proceeding. The chapters on the child protective system are written for attorneys defending parents who have been charged with abuse or neglect or who are the subject of proceedings to terminate parental rights. While the Manual contains some material that may also be useful to the other players in the system—judges, prosecutors, and attorneys representing children whose parents have been accused of abuse or neglect—it does not purport to describe or analyze subjects falling outside the purview of a defense attorney’s obligations to his or her client. THE STRUCTURE OF THE MANUAL The Manual’s treatments of delinquency cases (Chapters 2-39), PINS cases (Chapter 40), and child protection cases (Chapters 41-48), each proceed, more or less, according to the chronology of an individual case. Thus the chapters begin with the earlies stages at which defense counsel enters the case, then advance through the pretrial stages and trial, and conclude with disposition and post-dispositional remedies. The Manual is published in looseleaf form for three reasons: (a) to allow its users to replace pages with periodic updates; (b) to permit users to interfoliate their own notes on leading cases, rules of practice, and other matters of significance in their local jurisdictions; and (c) to make it possible for litigators to remove sections of the Manual to take to court, rather than lugging the entire Manual along. The goal of making this Manual easy to use during court hearings has also led to the authors’ abandonment of other conventions of manual-writing. The Manual deals with topics as they become relevant at each particular stage of a proceeding even when this format requires dispersing material with related subject matters among different chapters. For example, the topic of suppression of motions is covered in five different chapters: a section on drafting these motions is found in the chapter on motions that need to be filed shortly after Initial Hearing; later there comes a chapter on techniques for handling suppression hearings, and then three substantive chapters covering, respectively, motions to suppress tangible evidence, confessions, and identifications. The latter chapters summarize the voluminous federal and state law on their respective subjects and serve as a quick reference source that can be removed from the Manual and taken to court for use duging suppression hearings. Citation form in the Manual has also been adapted to the realities of trial practice. Thus, for example, a supra citation will only refer back to prior citations within the same subsection so that attorneys consulting a chapter in the midst of a trial or hearing will not need to waste time in searching for the full citation in prior sections. CAVEAT—THE UNIQUENESS OF CASES Although this Manual attempts to summarize the practices and procedures that should be followed in an ordinary juvenile court case, not case is “ordinary” in any but a highly artificial sense. Every delinquency, PINS, neglect, or abuse charge is intensely personal to the accused. Every accused is a complex and unique individual. Every prosecution of an accused is unique in facts and in law and makes unique demands on the defense attorney. Every defense attorney has his or her own style. There is no such thing as conducting a defense generally. What is right in one case is wrong in another. The most important attribute of the good defense lawyer is perceptive selectivity—the ability to determine the precise requirements of each case and to respond to them in a highly specific manner. No book can capture or instill that quality. All that is attempted here is a listing of available options for the lawyer, an identification of the major strategic considerations that may affect choice among the options, an introductory description of the prevailing legal principles and potential legal arguments, procedures, and practical techniques that counsel may encounter or may wish to employ, some warning about common problems, and some suggestions of ways to avoid them or to cope with them. Counsel will have to cull all of these things according to his or her own lights and the needs of his or her particular case in order to make the ultimate, lonely decision what to actually do. A SECOND CAVEAT—THE NEED FOR A PRO The goal of this Manual is to dispel somewhat the edge or uneasiness that the lawyer with little or no juvenile court experience naturally feels when s/he is retained or appointed in a delinquency, PINS, or child protective proceeding. Having even a very general notion of what is coming and what can be done about it rightly inspires some confidence, and confidence can be a very important dealing with the client. However, as in all matters of grave professional responsibility, the lawyer must be careful not to let confidence get out of hand. Juvenile court practice is a specialty, and there is a lot at stake. It remains vital for the lawyer with relatively little juvenile court experience to recognize when s/he is getting into waters deeper than s/he can swim. In matters of complexity or difficulty, counsel should consider the practicability of consulting (formally or informally and on a limited or extended basis), associating with, or withdrawing in favor of, a more experience juvenile court practitioner.
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Equality and Partiality
Thomas Nagel
Derived from Thomas Nagel's Locke Lectures, Equality and Partiality proposes a nonutopian account of political legitimacy, based on the need to accommodate both personal and impersonal motives in any credible moral theory, and therefore in any political theory with a moral foundation. Within each individual, Nagel believes, there is a division between two standpoints, the personal and the impersonal. Without the impersonal standpoint, there would be no morality, only the clash, compromise, and occasional convergence of individual perspectives. It is because a human being does not occupy only his own point of view that each of us is susceptible to the claims of others through private and public morality. Political systems, to be legitimate, must achieve an integration of these two standpoints within the individual. These ideas are applied to specific problems such as social and economic inequality, toleration, international justice, and the public support of culture. Nagel points to the problem of balancing equality and partiality as the most important issue with which political theorists are now faced.
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Econometric Models and Economic Forecasts
Robert S. Pindyck and Daniel L. Rubinfeld
First course in Econometrics in Economics Departments at better schools, also Economic/Business Forecasting. Statistics prerequisite but no calculus. Slightly higher level and more comprehensive than Gujarati (M-H, 1996) . P-R covers more time series and forecasting. P-R coverage is notch below Johnston-DiNardo (M-H, 97) and requires no matrix algebra. Includes data disk.
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American Health Law
George J. Annas, Sylvia A. Law, Rand E. Rosenblatt, and Kenneth R. Wing
The study of health law presents a unique opportunity to apply law and legal analysis to an industry that dramatically affects all our lives, is undergoing tremendous change, and is filled with challenges that the thoughtful application of law can help us to meet constructively. Few fields of applied law match the richness of health law. Changes in medicine directly affect not just what humans can do, but how we think about what it means to be human; issues of social justice and resource allocation arise more starkly and more compellingly in the health care context than in any other; and health law introduces us to the problems confronted by another major profession, medicine. As the title of this book asserts, uniquely American values are reflected and challenged in our health care system. Human anatomy and physiology are the same worldwide, but the organization and delivery of health care reflect individual cultures. Americans, for example, are probably more health conscious than any other culture. It is thus both ironic and disturbing that, with the exception of South Africa, we remain the only industrialized country that does not have a system of national health insurance. Cost is often given as the rationale for this inhumane policy. Nevertheless, we are already inefficiently spending more than 12 percent of our gross national product on health care and seem unable to control even government expenditures on medical care. We pride ourselves on having the “best” medical care in the world, but its quality varies greatly, and even where it is recognized as first rate, measure of quality are problematic. America is the home of other paradoxes as well. For example, although human rights are a focal point of our Constitution and legal tradition, it is often extremely difficult for individual patients to exercise such basic rights as refusing treatment in the modern American hospital. As the 1990s open, there seems little doubt that this decade will witness major changes in our health care system. A 1989 national opinion poll, for example, found that 89 percent of Americans thought that the health care system needed “fundamental change.” We possess what has been accurately described as the most expensive, least well-liked, least equitable, and perhaps least efficient system of health care delivery in the world. Of course, because of continuing and dynamic change, any book on health law quickly faces at least partial obsolescence. But such change also presents unique study opportunities. Health care provides a real-world laboratory to examine how several bodies of law shape and are shaped by the organization of medical care in the United States. Bodies of doctrinal law explored in this text include: tort standards of duty and medical malpractice, traditional insurance law as well as more contemporary insurance measures to control costs and assure access, labor law, constitutional principles, FDA law, state licensing programs for people and institutions, antitrust, as well as state and federal programs for financing medical care and education. In addition to exploring the often critical issues of doctrinal detail, the book addresses the interplay between courts, legislatures, administrative agencies, lawyers representing the wide range of interests, and more general cultural forces such as technology, ideology, and social movements. This book highlights social justice and social choice in health care delivery. It provides a conceptual framework for understand the processes by which the law allocates choice to professional prerogative, free market transactions, state or federal regulatory mechanisms, courts, or others. Identifying patterns of social choice and concepts of social justice does not provide easy answers or formulas, but rather illuminates the questions that help us understand contending and often controversial concepts and social forces. New medical technologies present new legal challenges so intrinsically fascinating that they appear on the front pages of newspapers and magazines. Thus there is little trouble capturing the attention of even harassed second-year law students or hardened third-year law students. Relationships between lawyers and physicians have become increasingly adversarial, and increased knowledge of the health care field may help restore more reasonable and socially beneficial interaction. Moreover, the advice lawyers give their clients in the health care field often has a direct impact on matters of health, birth, life, and death. Professional responsibility has and immediacy in this field that is lacking in many others. Full treatment of all of these issues in one book is, of course, impossible. This book introduces all of these issues and provide the student with a framework for analyzing them, with problems to focus discussion, and references for further study. This text is designed to be used in an introductory law school course, which could be followed by specialized courses in medical malpractice law, bioethics, law and health care economics, and so forth. It draws from a wide variety of materials, not just appellate decisions, and seeks to acquaint the student with the facts of health care delivery before confronting the legal problems that dominate the field. As will be seen, although they can be separately described and discussed, issues of cost, quality, access, and human rights cannot be compartmentalized in the real world. All of them must be understood to deal adequately with any of them. The text is divided into an introduction (which outlines how our current health care system was developed) and ten chapters. Chapter 1 deals with access to care both because this is a central social justice issue and because it is perhaps the most “accessible” subject for law students. Chapters 2 and 3 detail health care financing, perhaps the most difficult material in the text, but essential for anyone who seeks to understand our changing health care system. Chapter 4 introduces what has become the central issue in health care delivery: the development and use of new medical technology. It can be followed by Chapter 5, which focuses on defining and enforcing standards of quality care, or by Chapter 9, a case study of the most expensive and seductive medical technology: organ transplantation. Chapter 6 deals with the rights of patients, and 7 with the legal issues involving health care personnel. Chapter 10, the case study on reproductive health, can be left to the end or can follow either of these two chapters. Finally, Chapter 8 presents various economic approaches to deal with the issues of cost, quality, and access and explores application of antitrust law to health care. Although we all worked on the entire book, George Annas had primary responsibility for Chapters 4, 6, and 9; Sylvia Law for Chapters 1, 7, 8, and 10; Rand Rosenblatt for Chapter 5 and Section H (value conflicts) of the Introductions; and Kenneth Wing for the Introductions (Sections A-G) and Chapters 2 and 3. We expect that after taking a course in health law, many students will agree with us that health law is perhaps the most intrinsically fascinating area of law. But even if students who take this course never advise a health care client, they will be hospitalized an average of seven times during their lives, will have almost yearly persona visits to physicians and clinics, and, as consumers and voters, will confront the problem we all share as a society: securing and financing adequate care of acceptable quality for all Americans.
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Avenging Angel
Kwame Anthony Appiah
David, Viscount Glen Tannock, handsome scion of a noble Scottish family, was a brilliant and charming undergraduate, adored by his friends, admired by his acquaintances. His apparent suicide looks, therefore, like a tragic and inexplicable conclusion to a very promising life. But his cousin, Sir Patrick Scott, an Honorary Fellow of David's college and a prominent QC with a reputation as a sleuth, seriously doubts the accepted verdict. With the indulgent permission of the local CID, Scott digs deep into the University's clannish community. As a member of the ancient and exclusive Cambridge society known as 'The Apostles' (whose past members include Bertrand Russell, Lytton Strachey, Kim Philby, and Anthony Blunt), David had been summoned by the intellectual glitterati of Cambridge - the jeunesse doréeof the fashionable colleges and a coterie of dons. And because he, too, is an Apostle, Sir Patrick can call this secret network to his aid. When a leading scientist, working fast-acting poisons, is also found dead in his laboratory, Scott knows there's a killer at large and that he has a truly Apostolic puzzle to solve. And by the end he can't trust even his brother Apostles. A midnight tryst closely observed; a suspicious £250 cheque; a poisoned pipe; a Russian connection; a significant lie from the dead youth's tutor; a succession of threatening notes in Latin - all contribute to fears of a murderous plot to wipe out 'The Apostles' one by one. With his first novel, Anthony Appiah has produced a marvelously urbane, elegantly written and sophisticated story of intrigue and murder in the groves of academe.
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Early African-American Classics
Kwame Anthony Appiah
This essential one-volume collection brings together some of the most influential and significant works by African-American writers of the nineteenth and twentieth centuries. Included herein are such classics as Frederick Douglass’s Narrative of the Life of Frederick Douglass, An American Slave (1845) and excerpts from W.E.B. DuBois’s The Souls of Black Folk (1903), Harriet A. Jacobs’s Incidents in the Life of a Slave Girl: Written by Herself (1861), Booker T. Washington’s Up from Slavery (1901), and James Weldon Johnson’s The Autobiography of an Ex-Coloured Man (1912). Whether read as records of African-American history, autobiography, or literature, these invaluable texts stand as timeless monuments to the courage, intellect, and dignity of those for whom writing itself was an act of rebellion—and whose voices and experiences would have otherwise been silenced forever. Edited and with an introduction by Anthony Appiah, who explains the distinctive American literary and cultural context of the time, this edition of Early African-American Classics remains the standard by which all similar collections will inevitably be compared.
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Hugo Grotius and International Relations
Hedley Bull, Benedict Kingsbury, and Adam Roberts
Hugo Grotius (1583-1645), “the miracle of Holland,” was famous as a child prodigy, theologian, historian, Dutch political figure, escaped political prisoner, and finally as Sweden's Ambassador to France. Addressing his contribution to international relations, this book critically reappraises Grotius' thought, comparing it to his predecessors and examining it in the context of the wars and controversies of his time. The collection illuminates enduring problems of international relations: the nature of international society and its institutions, the equality of states, restraints in war, collective security, military intervention, the rights of the individuals, and the law of the sea.
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