Faculty Books & Edited Works

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Civil Litigation in New York

Oscar G. Chase and Robert A. Barker

Our aim in preparing this book has been to give the student the materials necessary to achieve a sophisticated understanding of litigation in the New York court system, emphasizing practice in the Supreme Court. The second edition of Civil Litigation in New York retains the transactional approach used in the first. The organization of the chapters follows, to the extent feasible the usual development of an action as experienced by counsel. While this approach give the student a way of fitting each piece into a cognizable whole, it should not suggest invariability. In our own teaching we ask our students to confront the choices available to the parties at each stage and to analyze the reasons for choosing one path over another. We have again intersperse litigation problems throughout the book designed to encourage the student to read the surrounding material carefully. Often discussion of a problem will highlight ambiguity in doctrine which purports to be straightforward. Evaluation of competing approaches should call for reference to underlying policy and value assumptions. The student (and teacher) will then be encouraged to think about the values that a procedural system can and should serve. Reflecting the many legal developments in the past six years, as well as our own ambition to improve the book, the second edition include much new material. The chapter on personal jurisdiction has been particularly affected by the close attention the Supreme Court of the United States has paid to the area. We found that these cases worked best when folded into the subdivisions of personal jurisdiction doctrine, rather than as a separate treatment of constitutional issues. We have broadened the scope of the book as well, most notably by the addition of new chapters on appeals and enforcement of judgments. As with the preparation of any casebook, we faced many difficult decisions of inclusion and exclusion. We hope we have struck the right balance between preservation and dynamism.
Investment Law and Practice in Vietnam: A Specially Commissioned Report

Jerome A. Cohen, Văn Tai Tạ, and Ngọc Bích Nguyên

This specially commissioned report provides extensive commentary on the new investment legislation and provides reliable translations of the most relevant documents. Areas covered include: forms of investment, labour taxation, the financial environment and dispute resolution.
Cases and Materials on Torts

Richard A. Epstein

The fifth edition of this casebook appears 6 years after the fourth edition and some 31 years after the publication of the original Gregory and Kalven casebook. That period of over three decades has been marked by both continuity and change in the law. Five, perhaps even three years ago, these changes tended to be largely in one direction. With the exception of the law of defamation and privacy, tort lability had been expanding on all fronts. Today, however, the picture is far more clouded. In the traditional areas of physical injuries tort liability appears to have reached its high water mark, and in some jurisdictions—surely California and perhaps New York—the tides seem to be receding. Ironically, at the same time the law of defamation seems to have expanded, if not doctrinally, then surely in the frequency and intensity of suits. In the midst of these ebbs and flows in tort lability, certain questions have remained with us in more or less the same form in which they were faced by the earliest of common-law lawyers. The tension between the principles of negligence and strict lability in stranger cases surely falls into this class. The debates framed in the nineteenth-century cases have largely dictated the subsequent analysis. Yet in other areas we have witnessed major transformations both in the types of cases brought to litigate and in the choice of legal theories used to decide them. In 1959 the paradigm tort action was still the automobile collision. Torts against institutional defendants—products liability and medical malpractice cases most readily leap to mind—were, when viewed with the benefit of hindsight, still in their infancy, while mass torts and toxic torts (the two often go together) still lay in the future. The emergence of new types of litigation has taken its toll on traditional tort theory. The question of “proximate cause”—could this remote consequence be properly attributed to the wrongful conduct of the defendant?—was the dominant issue of causation in 1959 and the major source of contention among academic writers. That is no longer true today. Increasingly, modern tort litigation concentrates on the difficult questions of evidence and statistics necessary to establish the factual connection between, say, the defendant’s drug or waste discharge and the medical injuries of the plaintiff. These shifts in emphasis are duly take into account in this edition. Notwithstanding the enormous substantive changes, the education aims of this casebook are much the same as those of the previous four editions. The primary goal remains one of giving to the student an accurate sense of the current legal position in this, one of the most active and important branches of the law. But this casebook would fail in its essential mission unless it accomplished two other tasks. First, it should provide the student with an opportunity to examine the processes of legal method and legal reasoning. Second, it should give the student some sense of the different systematic and intellectual approaches that have been taken to the law of torts over the years. The importance of method cannot be underestimated in legal education. A casebook—certainly this casebook—is not a reference book, much less a treatise. The standard legal curriculum, of necessity, touches on only a tiny fraction of the huge and every-growing body of substantive rules, and even many of those will change with time. The education of the lawyer of the future therefore rests on an ability to deal with a mass of legal materials, to identify the underlying assumptions, to determine possible implications for analogous cases, and, above all, to deal with the persistent uncertainty, ambiguity, and at time downright confusion in the law. To help with these tasks it is essential to deal with the development of a legal principle over time, through a line of cases that illustrates its application and tests its limits. To that end this casebook contains many cases from the nineteenth century and before, even some that have long ceased to represent current law. Likewise, in order to capture the nature of legal debate, in many principal cases I have reprinted not only the opinion of the court but those of concurring or dissenting judges. With Fletcher v. Rylands, at page 85, infra, for example, five separate opinions from three different courts are reproduced, because each adds something to the total picture. A sound legal education requires more than attention to analytical skills. The law of torts in particular is one of the richest bodies of law, and it has been examined and explored from historical and philosophical perspectives not only by the common-law judges, but also by generations of academic writers. It is essential for all students to gain some sense of the diverse possible approaches to tort law, lest the constant probings of the Socratic method lead to an unhappy intellectual nihilism. The materials selected are designed, wherever possible, to allow torts to be confronted not only as a collection of discrete rules but also as a systematic intellectual discipline. There is in the tort law today fundamental disagreement about the proper orientation toward its subject matter and about the proper choice of its key substantive rule. Speaking first to the question of general orientation, it is possible to identify three major positions. The traditional view—largely unchallenged until recent years—was to look at the law of torts as a study in corrective justice, as an effort to develop a coherent set of principles to decide whether this plaintiff was entitled to compensation from this defendant as a matter of fairness between the parties. Issues of public policy and social control were of course not absent, but they did not dominate judicial or academic attitude toward either particular cases or general theory. Today the traditional approach is under attack from two flanks. On the one hand there is renewed insistence, which today is often expressly articulated in the cases, that the compensation of injured parties is in itself a valid end of the tort law and that the doctrines of tort law that frustrate that objective must be hedged about with limitations or totally eliminated unless strong justification is given for their retention. The older presumption that the plaintiff had to show “good cause” t hold a defendant liable—roughly speaking—has yielded in some quarters to a new presumption that requires the defendant to show why, with harm and causal connection established, liability should nonetheless not follow. That shift in presumptions, if accepted, has two major implications. First, the class of “inevitable accidents” that tended to fall outside the trot law under the older view is more likely to be brought within it under the new. The defendant charged with tort liability, it is said, can shift the loss to society at or by spreading the risk by way of liability insurance. Second, defenses based on plaintiff’s conduct—notable contributory negligence and assumption of risk—will receive a narrower interpretation and may serve not to bar but only to reduce the level of the plaintiff’s recovery. The second critique of the traditional approach comes from a different quarter, that of economic theory. Looking first at the tort law as a system of social control, advocates of the economic approach have generally argued that the proper function of the tort law is to lay down workable liability rules to create incentive for both individuals and firms to minimize (the sum of) the costs of accidents and the costs of their prevention. In this view of the subject, the compensation of individual parties is not an end in itself, but only a means to enlist private parties to help police, by private action, the harmful activities of others. The economic approach tends to downplay the importance of corrective justice in the individual case and compensation for individual victims of accidents, treating the first as largely incomprehensible and the second as better achieved through voluntary insurance arrangements. Until very recently its importance was largely academic, but today its influence is increasing in the decided cases. The diversity of opinions on the proper approach to the tort law carries over to disputes about the proper substantive basis of tortious liability. From the earliest times until today courts have entertained three main theories—each subject to many variants—for recovery in tort. There is, first, recovery for harms intentionally inflicted by defendant on plaintiff. Second, there is recovery for harms negligently—through the want of reasonable or ordinary care—inflicted on the plaintiff. Last, there is recovery under a theory of strict liability, this is, for harms inflicted on the plaintiff by a defendant who acts without negligence and without any intention to harm.
Information and Democratic Processes

John A. Ferejohn and James H. Kuklinski

The golden democratic tradition of an informed and involved electorate freely and rationally choosing its public officials seems to be at odds with American political reality. Thus the questions: On what basis do people vote and form opinions? How does the lack of information at the individual level affect system performance? In this collection twenty-six distinguished political scientists discuss, debate, and define the relationship between information and the democracy it supposedly serves. The contributors address both the empirical and normative aspects of governing in the United States, employing psychological, sociological, and economic perspectives.
Business Crime: Cases and Materials

Harry First

This casebook provides detailed information on business crime. The casebook provides the tools for fast, easy, on-point research. Part of the University Casebook Series®, it includes selected cases designed to illustrate the development of a body of law on a particular subject. Text and explanatory materials designed for law study accompany the cases.
Punishment and Modern Society: A Study in Social Theory

David W. Garland

In this path-breaking book, David Garland argues that punishment is a complex social institution that affects both social relations and cultural meanings. Drawing on theorists from Durkheim to Foucault, he insightfully critiques the entire spectrum of social thought concerning punishment, and reworks it into a new interpretive synthesis.
Justice, Guilt and Forgiveness in the Penal System

David W. Garland and Terence Morris

These four papers explore the principals and assumptions on which British corrections policies rest and ways in which Christian theology might help formulate or even transform the moral framework in which correctional institutions currently operate. The topics were developed by a committee formed in 1988 who determined that the themes of justice, guilt, forgiveness, and vocation were central to the consideration of the relationship between Christian theology and practical issues in criminal justice. It noted that corrections policies easily express condemnation of offenders and enforce their exclusion from society, but focus little time or money on the processes of reconciling or resettling offenders and the basic Christian value of forgiveness. In addition, corrections personnel have difficulty maintaining a sense of vocation in view of the practical difficulties involved in working with offenders.
Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell

Arthur R. Miller and Michael H. Davis

It has been said, with respect to tort law that anyone can recognize a punch in the nose. Unlike a punch in the nose, "Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussion to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent." This text, by famed Harvard professor Arthur Miller, includes patents, trademarks, and copyrights. Further, it addresses torts and property; antitrust and government regulation; concepts of federalism and state and federal conflicts. The text provides the scope and highlights you need to excel in understanding this field. This will enable you to answer exam questions more quickly and accurately, and enhance your skills as an attorney.
Elements of Civil Procedure: Cases and Materials

Maurice Rosenberg, Hans Smit, and Rochelle C. Dreyfuss

The aim of this Fifth Edition is to prepare students for civil dispute resolution in the 21st century. It combines new materials with well-tested approaches. These approaches include the objective of helping students to focus their critical powers on evaluating both the theoretical premises and the actual operations of modern rules of civil procedure. This edition adds recent Supreme Court decisions in such areas as jurisdiction, re judicata, joinder, and federalism. It also examines recent changes and proposed changes to the Federal Rules of Civil Procedure and the important developments in regard to summary judgment and Rule 11 practice. The earlier editions’ accent on judicial management and alternative dispute resolution processes is strengthened. To deal with the increasing number of complex cases involving widely dispersed injuries, we have expanded the treatment of the Agent Orange litigation, providing a setting in which to examine the special challenges to the courts and society posed by disasters that produce mass tort cases. This edition continues to view procedure from a number of basic vantage points: The historical perspective finds expression, not only in essays on the writ system and the evolution of today’s procedural law, but also in contemporary cases that demonstrate the significance of history for modern problems. Among these are the right to trial by jury and the availability of noncompensatory remedies for newly created rights. These developments make clear to the student that civil procedure is a dynamic pursuit, changing in response to evolving societal needs. The functional perspective is brought to bear in the consideration of such terms as “cause of action,” “substance,” and “procedure.” The search for the meaning of these terms carries Holmes’ famous message that procedural concepts are not crystals of invariant content: as to every one, purpose informs meaning. The value perspective is implicit in much of the material. Civil Procedure should not be understood as an esoteric collection of mechanical commands. Rather, values that animate other public debates are often at issue here. The responsibility of the community to its poorest members is discussed in the chapter on access to courts and lawyers; the needs of modern business rub against those of the individual in such areas as jurisdiction and joinder; privacy interests are at stake throughout the discovery and trial process; and issues relating to class actions pit efficiency objectives against demands for individualized justice. Of course, values that are special to procedure are also stressed; for instance, rules protecting the social interest in repose and the integrity of the adversarial process. The empirical perspective surfaces in several contexts, such as the judges’ appraisal of the strengths, weaknesses and desirability of the civil jury, the impact of the pretrial conference, and the efficacy of pretrial discovery. The empirical studies in the book underscore the point that rules of procedure are designed to serve practical ends. We are concerned to explore whether the rule works in practice, not merely in theory. Finally, the systemic perspective is conveyed by materials that impart the idea that the courts are but one part of a dispute resolution system and that other means exist to resolve legal controversies. As mediation, arbitration, and newer mechanisms such as mini-trials, rent-a-judge schemes, and summary jury trials are explored, students are encouraged to consider how to make the “forum fit the fuss,” and to weigh the extent to which the public’s interest in the judicial process is served or disserved by procedural devices tailored more closely to the needs of individual litigants. Procedure shapes the students’ conception of the legal profession, their roles as counselors, their duties to the court, and their positions as citizens with specialized understanding of the problems and limitations of the judiciary. Naturally, we consider it the most exciting course in the first year curriculum.
The Law

Jeremy Waldron

First published in 1990. The Law brings issues of legal theory to life by relating them to real problems in British politics. Questions about human rights, the rule of law, the unwritten constitution, the role of judges, law and politics, and civil disobedience are often discussed as purely abstract issues. Jeremy Waldon, however, considers them in the context of incidents such as the GLC's `Fare's Fair' case, the choice of Prime Minister, interrogation techniques in Northern Ireland, and the 1984-85 Miners' Strike. He shows that the role of law is not a dry conceptual study, but instead raises issues that lie at the very heart of British politics, and maintains that many political controversies in turn cannot be understood without looking at the issues of legal philosophy at stake. This lively text is intended for students of politics as well as law, but it will also interest anyone who is concerned about the rule of law in Britain. In particular, it asks the crucial question, 'How can the people of Britain reclaim the law as their own?' The rule of law should not be regarded simply as an obligation that people have to live with; it is also a responsibility that the government owes to the people to formulate legislation and to operate a legal system that is worthy of our respect.
Necessary Questions: An Introduction to Philosophy

Kwame Anthony Appiah

This book offers an accessible introduction to the whole field of philosophy. It takes the key areas of the subject — Mind, Knowledge, Language and Logic, Science, Morality, Politics, and Law — and traces the root concepts of each. outlining the advantages and disadvantages of the various positions that can be taken up. The historical dimension is briefly explored. with the work of the great philosophers of the past explained and put into meaningful' context. There are special biographical profiles of Plato, Aquinas, Descartes, Hobbes, Kant, Frege, and Popper in the chapters where their crucial contributions are analyzed. This is not, however, an historical survey of philosophy; what Anthony Appiah does is to give the reader a clear and comprehensive guide to some of the momentous questions that concern thinking people in a literate culture today, and to the terms in which philosophers address those questions. The book introduces the work of a number of today's challenging philosophers. and gives a flavor of the controversies surrounding the recent vigorous developments in philosophical debate. There is a helpful annotated bibliography and an extensive glossary of philosophical terms to ensure that even if this is your first book on the subject, it will not be your last.
New York Practice Guide: Negligence

Oscar G. Chase and Henry G. Miller

Overview This work is designed to provide a blueprint for the litigation of a personal injury or property damage case in the New York courts. The term “Negligence” in the title is used in a broad generic sense; where applicable, breach of warranty and strict liability theories of recovery are also treated. The organization of the work is fairly straightforward. Unit One relates to the law or negligence. Unit Two covers civil practice and procedure in the negligence case, tracking the litigation process from the attorney’s initial contact through the post-trial period. Unit Three presents an in-depth treatment of the six major areas of litigation: Premises Liability, Products Liability, Automobile Negligence, Government Liability, Medical Malpractice, Construction Accidents. Each of the chapters is divided into a number of discrete parts. These include: Legal Background, Checklists, Timetables, Practice Guide, Forms and Research Guide. Thus, in each area there is analytical treatise coverage of statutory provisions and caselaw, practical guidance as to what to do and how to do it, a host of forms, checklists and handy timetables, and a research guide, extensively listing relevant primary and secondary source materials. The object of all of this is to provide the attorney with everything that would normally be needed in the course of prosecuting or defending a negligence action, as well as easy access to additional materials for further research. A deliberate effort has been made to serve the needs of those representing both plaintiffs and defendants, and to provide information and materials of value to the seasoned veteran as well as the novice. Practice Overview Before one can be a great sculptor of wooden furniture, one must be a good carpenter. Before the chair is made beautiful, it must first be made sturdy. So it is with lawsuits. Before we dream of making great arguments, we should first master the details of our craft. Papers must be filed on time. Pleadings must be prepared properly. Notice of proceedings must be given to the Court and our adversary as required. This is true for all lawyers and it is true for those who litigate negligence cases in New York. Mr. Disorganized is a good cross-examiner. He enjoys a fine reputation at the Bar. His office is, however, in chaos. Files cannot be found. Statutes of limitations are routinely missed. Motions to dismiss pour like Niagara into his office. Genius is no excuse for disorganization. All the genius in the world cannot revive a case which has been finally dismissed because of inattention. Great advocacy will not rescue the lawyer who has sued the wrong defendant. There is an antidote to disorganization. It is: attention to details. It derives from dedicated concern. It stems from a strong commitment to maintain a disciplined office where all papers are served promptly and orderliness is the rule of the day. The secret of a well run office is the diary. Each attorney should have his or her individual diary, putting down all the dates when something is due. The office, in addition, should have centralized diaries, which serve as a double check for special items, for example, the dates when depositions are scheduled to be held. In addition to the attorney’s diary, each attorney’s secretary should maintain a diary. With this system of checks and balances, an orderly office begins to evolve. There is probably no such thing as the totally perfect office. However, by dedication to orderliness, we can reduce to a minimum those disasters which might otherwise occur even in the offices of lawyers of the highest standards. A “bad” office is revealed by its files. When papers are chaotically strewn about unattached and loose it is the telltale mark of a sloppy mind. The file reflects the character of the attorney. Neatness is a virtue. It may not make one Cicero to have a neat file. However, while few can be Cicero all can be attentive to details. Each file must reflect the respect that the attorney has for that client. A sloppy file is nothing more than indifference to the well being of the client’s cause. Careful, concerned lawyers strive to make every file a model of neatness. In addition to orderliness and neatness, we of course, would be lost without knowing the rules of our trade. We must know where papers are to be filed; how to put a case on the calendar; the essential ingredients required in each document; the rules of civil procedure. In short, we must be good carpenters. Toward this end, it behooves every negligence lawyer in the State of New York, particularly those plaintiff’s lawyers charged with the bringing of the case, to study the legal materials in this text, prepared by Professor Oscar Chase and others. For those who already know the basic rules of law, the review will serve as a refresher. For those whose knowledge is incomplete, the review will serve as a necessary introduction to the knowledge which is absolutely essential for the negligence practitioner. It will be my role to add practical suggestions. These are considerations born of experience. My hope is that this book will serve as a helpful reference for all in New York who practice in the field of negligence. Needless to say no one can presume to lay down a definitive rule to be followed in every situation. Ultimately, judgment msust come into play. However, by careful adherence to the rules of law, mistakes can be minimized. By reference to our practice commentary, you will at least be able to share experience with one who has grappled for many years with the common problems of negligence practice.
Civil Procedure: Cases and Materials

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

This Fifth Edition, which has been prepared by Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton, has had the benefit of many comments of colleagues from the large number of schools in which the first four 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 Fifth 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 the publications of the Fourth Edition there have been important developments in several areas of procedure (for example, jurisdiction over persons and property), which give rise to intellectually stimulating questions and policy considerations that require inclusion in a contemporary casebook. Thus, the chapter on jurisdiction has been reconceptualized and updated in light of the recent Supreme Court decisions and other developments. The chapter on summary judgment has been substantially reworked and expanded; the chapter on res judicata and collateral estoppel has been reworked completely; and new sections, reflecting the recent amendments to relevant statutes and to the Federal Rules of Civil Procedure, have been added to other chapters. 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 note on “the nature of the trial process” in Chapter Eleven and in the 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 had 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 understating 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 course 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 tem 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 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 fact study of the entire course. In general, Chapter One is intended to let students from 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 chapter on jurisdiction includes and extensive treatment of the federal courts. An investigation of a single system in detail seems the best way to impress students with the significance attached by courts to the concept of jurisdiction over the subject matter. The length of this materials 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 ancillary 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 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 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. Our practice has been to revise and reissue the Supplement every two years, adding recent significant cases, thereby achieving considerable flexibility at a minimal cost to students. 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 develops in practice and samples of the documents that might actually have formed a portion of the record. It is important to note that these samples are not designed as models to be emulated. To the contrary, they often contain defects intended to induce students to criticize them in light of knowledge they have obtained from the cases and classroom discussion. The cases and excerpts from other materials obviously have been extensively edited in order to shorten them and clarify issues for discussion. Except in a few situations, the materials from the Fourth Edition have not been significantly shortened in preparing the Fifth Edition. With regard to footnotes: the same numbering appears in the casebook as appears in the original sources; editors’ footnotes are indicated by letters.
Cases and Materials on Antitrust

Eleanor M. Fox and Lawrence A. Sullivan

Antitrust law once reflected broad, value-based policy, informed by the enacting Congresses’ distrust of bigness and power and their concern for economic opportunity on the merits. But in the mid to late 1970s, the Supreme Court put a cap on the growing body of antitrust constraints, and in the early 1980s, a new Administration turned the old antitrust on its head. In 1981 the Justice Department, taking a leaf from Chicago School economics, proclaimed that the sole role for antitrust is to stop inefficient transactions; and it asserted that few transactions are inefficient because the market is a robust check on inefficient behavior. Government enforcement since 1981 has focused almost entirely on blatant cartelization. As this book goes to press, minimal antitrust is still the rule of thumb amid speculation about what changes further time may bring. There are compelling reasons to study antitrust. First, antitrust is a unique blend of intellectual theory, social policy, political economy, microeconomics and law. Thus, to study antitrust is to engage in a interdisciplinary enterprise that informs the study of law, legal institutions, and social policy. Second, the study of antitrust prepares the student for the practice of antitrust law, which is a field of great intellectual and practical interest and excitement; it may involve one in government service, counselling, practice before an administrative agency, analytical discussions and negotiations with the Justice Department, and federal court litigation. Moreover, the practice of antitrust law provides the constant challenge of learning facts about the functioning of whole industries. Third, as we approach the centennial of the Sherman Antitrust Law, antitrust is at a cusp where different social forces meet; future developments will be interesting to observe, and perhaps even to shape. In this book of history, economics, politics, and law, we have steered an eclectic course. Our goal is to provide the student with sufficient background to understand the intellectual history, the evolution, and the state of the law of antitrust; to excite the student to question the path the law has taken and to consider the paths it might take. We also hope to give the student a simple introduction to economic thinking and to illuminate the process of choosing the assumptions that shape economic analysis, so that the emerging antitrust lawyer or scholar can ask the right questions and, as well, appreciate the policy choices that underlie competing styles of antitrust economics.
Regulation of Lawyers: Problems of Law and Ethics

Stephen Gillers and Norman Dorsen

Title like “Professional Responsibility” and “Legal Ethics” do not fully describe the subject matter of this book. It is a book about the legal profession and about the practice of law. The book includes laws governing the practice of law, rules contained in ethical codes and constitutions and, to a lesser extent, behavior that springs from custom and experience. These laws, ethical rules, and customs can be discussed from three perspectives. Perhaps most immediate for those about to enter on a legal career are the rules that constrain working lawyers. In such areas as competence, fees, advertising and solicitation, client secrets, conflicts of interest, negotiation, and the attorney-client relationship: what may you do, ho may you behave, with confidence that your conduct will not land you before a disciplinary committee or in a civil lawsuit and, sometimes more important, will not damage your reputation among your peers? The second perspective of the book is the relationship between the profession and society. The rules lawyers impose on themselves or that are imposed on them, taken together, define the nature and operation of the entire profession, and therefore, to an extent, the behavior of our legal institutions and the quality of our social justice. For example, a rule that allows lawyers to advertise certain kinds of information will influence the conduct of individual members of the bar. But it will also affect whether, and how, large categories of people use lawyers and the size of legal fees. Similarly, a rule that prohibits or requires a lawyer to reveal certain kinds of information about a client will control the lawyer’s individual conduct, but it will also affect which client populations use lawyers and how. In short, nearly every rule, whatever its source, has social and political consequences, although there is often disagreement both over what these consequences will be and whether they should be avoided or encouraged. About to go off into law practice, you may be more interested in such questions as” “How do I behave?” and “How can I stay out of trouble?” than is asking “What are the consequences to society and justice if one or another version of particular ethical rule is applied to America’s nearly 800,000 lawyers?” Still, the last question is important and, if not as immediate, will surely arise in the course of your professional life. Both kinds of questions, but more so the second, engender different, and sometimes vehement, responses. Why? In part because to answer them we must call upon political and mora values more fundamental than the “ethics” that inform various codes; and, of course, political and moral values of different people differ substantially, sometimes diametrically. Furthermore, in addressing these questions, we are likely to make a threshold determination, conscious or not, of the extent to which we want the answers to further our self-interest. However we couch our responses, in truth whose best interests do we mean to protect? Those of society generally? The legal profession’s? The interests of lawyers in practices like the one we have or expect to have? Those of the particular client population we serve? Our firm’s? Our own? Law school and law practice, it is sometimes said, encourage more rather than less self-interestedness in addressing the kinds of questions that will be raised here. At the outset we wrote that rules governing the practice of law can be discussed from three perspectives, and we have so far listed two. The third is the effect of lawyers’ work on the people who do the work, that is, the effect of role on shelf. For example, a rule that requires silence though it means that another will suffer injustice may cause great discomfort to those who must obey it. As men and women, we consider if laudable to speak up to prevent injustice to others. As lawyers, we may be forbidden to do so. Can we reconcile these two positions, not intellectually or theoretically but personally, within ourselves? A similar point can be made with regard to the rule that requires lawyers zealously to pursue the lawful goals of their client, even if these goals (or the legal strategies to achieve them) offend the lawyer’s values. Conflict between work life and private life also arises in another way. It concerns not the particular deeds that a lawyer may be called on to perform for a client and the he or she might find morally problematic if performed outside the professional role, but the way that professional service (and the culture of law practice) affects other aspects of a lawyer’s life. Most obvious is the clash between job and family. For example, does the profession allow people to reach its higher rungs and also be conscientious and responsible parents? A second issue is the possible discrepancy between the qualities of personality that law office culture tends to reward and the ones encouraged elsewhere. Do you have to learn behavior to survive in professional environments that will make you downright unpleasant in social and familial ones—unless you also leans to “leave it at the office”? (One thinks of the common criticism from a lawyer’s lay relatives: “Oh, stop talking like a lawyer!”) When the first edition of this book appeared four years ago, little had been written about these conflicts. Now there is much more, though not perhaps as much as appears about Rule10b-5, Rule 11, or the rule against hearsay. But they are important matters, and we shall speak of them again.
Regulation of Lawyers: Statutes and Standards

Stephen Gillers and Roy D. Simon Jr.

The purpose of this book is to make law school courses in professional responsibility more interesting. To accomplish this purpose, we have made this statutory supplement different from other available supplements for professional responsibility courses. This Preface explains what makes our book different. The ABA Model Rules of Professional Conduct A majority of the states have now adopted the ABA Model Rules of Professional Conduct in some form, and most law schools make the Model Rules an important component of their professional responsibility courses. We have therefore concentrated on adding depth and perspective to the Model Rules. We have given them depth by providing internal cross-reference, legislative histories, and interesting state variations after each Rule. We have put the Rules in perspective by citing or describing related authorities after each Rule. A quick glance at virtually any Model Rule will show how these features will enhance your understanding of the Model Rules. The Cross-References in the Rules give a full picture of each Rule’s influence and implications for the Rules as a whole. The Legislative History sections and the Selected State Variations can serve as the basis for lively, focused class discussions on whether the ABA Model Rules represent the best way of treating a particular issue or whether an earlier draft or a state variation is preferable. The Related Materials sections, which cite or quote other sources treating similar issues, make it easy to explore additional alternatives (such as the American Lawyer’s Code of Conduct), to fill in gaps in the Model Rules (by looking to specialized codes such as the ABA Model Standards for Lawyer Mediators in Family Disputes or the ABA Standards for Criminal Justice), to consider the relationship between the Model Rules and other sources of authority (such as the attorney-client privilege or the Federal Rules of Civil Procedure), and to gain additional historical perspective (by reading the old Canons of Professional Ethics following each Rule). To put our materials in context, we have written brief introductions to each chapter of the book. We have also written an introductory essay giving an overview of the entire field of regulation of lawyers, with special emphasis on the ABA Model Rules and Model Code, including their legislative history and the patterns in state variation. New York and California Materials We have paid especially close attention to California and New York. For California, the Selected State Variations section following every Model Rules cites comparable sections of both the California Business and Professions Code and the newly revised California Rules of Professional Conduct. Conversely, each section of the California Rules of Professional Conduct is followed by citations to related provisions in the ABA Model Rules, the Business and Professions Code, and the old California Rules (which were in effect until May 27, 1989). For New York, we have indicated after each Model Rule whether New York’s comparable provision differs from the ABA Model Code of Professional Responsibility, and we have reprinted separately all of the New York Code provisions that differ significantly. In addition, we have cited all comparable provisions in the Proposed New York Rules of Professional Conduct (still under consideration as of this writing), and we have reprinted the most important Proposed Rules, including underscoring and line-outs to show additions and deletions from the current New York Code. Our Theme Throughout the volume, our theme is simple: The ABA Model Rules are an important voice in the legal profession—but they are only one voice. The drafts, the state variations, and other sources show that there are other ways of addressing issues. Moreover, sometimes the Model Rules resolve only a few of the questions in the areas they cover, leaving many other questions wholly unaddressed. The job of the legal profession is to debate and determine the best possible standards for each facet of legal practice. By setting forth a wide variety of materials, and making them accessible through cross-references, we hope to help move the profession toward that goal.
Criminal Law and Its Processes: Cases and Materials

Sanford H. Kadish and Stephen J. Schulhofer

In preparing this edition, our intention has been to maintain the basic structure and purposes of its predecessor, to preserve the leading cases that many teachers have found helpful in focusing successful class discussion, and at the same time to offer a fresh perspective by introducing new cases, along with many new Notes, Problems, and other contemporary material. As in prior editions, the emphasis is primarily upon the substantive criminal law. Why substantive criminal law? We conceive of a criminal law course as both serving the ends of both general legal education and training in the criminal law in particular. The chief value of the course as a part of a general legal education is to enlarge insight into and understanding of the potentialities and limitations of the law as an instrument of social control. We have in mind the variety of hard problems encountered in using the law for this purpose: the difficulty of giving legal form to the compromises made necessary when goals conflict; the creation of institutional arrangements—judicial and administrative—appropriate to the goals sought: the limitations—moral and practical—on the use of the law as a means of social control; the relation of legal controls to other social processes. We regard the study of the substantive criminal law as an unusually suitable introductions to these pervasive problems of the law. The ends criminal law serves involve social and human values of the highest order. Its means, entailing the imposition of brute force on the lives of individuals, are potentially the most destructive and abusive to be found within the legal system. The issues it raises and the setting in which it raises them are compelling and vivid. Its institutions are acutely controversial and often controverted. And one of its underlying themes is the momentous issue of the reconciliation of authority and the individual. As Professor Herbert Wechsler has written: “Whatever views one holds about the penal law, no one will question it importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instruments of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works a gross injustice on those caught within its toils. The law that carries such responsibilities should surely be as rational and just as law can be. Nowhere in the entire legal field is more at stake for the community or for the individual.” What of the course’s narrower purpose of training students in the criminal law in particular? Here there are two main pedagogic objectives. One is to furnish a solid foundation for those who will, in greater of lesser degree, participate directly in the processes of the criminal law. This foundation does not require mastery of the full range of technical skills and information held by the practicing criminal lawyer, judge or administrator, but rather the development of confidence in handling principles and rules—judge-made or statutory—through knowledge about the larger implications of doctrines and institutions of the criminal law. The second purpose is to create in law school graduates who will have little occasion to practice criminal law and understanding of the problems of the criminal law. As influential members of their communities—and more directly as judges, legislators, or teachers—lawyers versed in the principles of criminal law can bring an informed intelligence to the challenge of solving some of the most vexing problems of our times. Revisions for the fifth edition. In the procedural sections, we have substantially streamlined the materials. Those fundamental of criminal trial procedure that we consider essential for understanding the issues in substantive criminal law (rules of evidence, burden of proof, presumptions, and the role of the jury) remain, and they can now be covered in two to three classes, instead of the two to three weeks that were required to cover the procedure chapter of the prior edition. We believe that a brief but intensive treatment of this material at the outset of the course adds immeasurably to the student’s appreciation of the concrete setting in which substantive law issues arise and the practical considerations that so often influence those debates. Conversely, we have come to the conclusion, albeit reluctantly, that a full chapter on sentencing procedure is no longer feasible in a book devoted primarily to substantive criminal law. The body of doctrine in this area and the variety and complexity of statutory reforms now render this material worthy of a full course or seminar in its own right; adequate treatment in a 45 or 60 hour criminal law course has become impossible. Rather than attempt such a treatment, we have chosen to provide (in Chapter 2) a brief textual summary of the procedural issues and the current state of the sentencing reform movement. In the substantive sections we have updated the cases and added Notes and Problems dealing with many issues of current concern. For example, the subject of omissions is now treated in an enlarged subsection, to provide coverage of the subject as it arises in euthanasia and in other contemporary setting; complicity and the causation materials have been reconsidered and presented in a more readily understood organization; the Goetz case and the problem of the battered woman are used as the main vehicles for treating self-defense; the chapter on legal insanity has been entirely redone to reflect the revolutionary developments since the last edition; cases and materials on federal mail and wire fraud have been added to the theft chapter. We have made two important organizations changes, both designed to achieve a better integration of the teaching materials. In Chapter 2, the Justification of Punishment, we now begin with a number of specific cases, several of which had been broken out as a separate section in the prior edition. We believe the new organization, which we have used successfully in our own teaching, provides a more concrete grounding from which to explore philosophical and empirical questions that some students might otherwise find too abstract. In Chapter 7, Group Criminality, we have now integrated the material that formed the core of the separate Business Crimes chapter in the prior edition. Given inevitable time constraints, the new organization should help teachers to cover the essence of these increasingly important problems, which otherwise might have to be ignored altogether. As in previous editions, the substantive materials continue to focus on imparting an understanding of what is often called the “general part” of the criminal law—that is, those basic principles and doctrines that come into play across the range of specific offenses (for example, actus resus, mens rea, and the various justifications and excuses). We believe that mastery of the detailed elements of many particular crimes is a goal that is inappropriate for a basic criminal law course. Nevertheless, we have found that understanding of the basic principles in enhanced by testing their applications and interactions in the context of particular offenses. Accordingly, we examine in detail three offense categories: rape (Chapter 4), homicide (Chapter 5), and theft (Chapter 9). The chapter on rape provides an opportunity to focus on the definitional elements of a major crime in a context that has become the focus of acute controversy because of changing perceptions and changing social values. The theme of the homicide chapter is the task of legislative grading of punishment in a particularly challenging area. The theft chapter explores the significance of history and the continued impact of old doctrinal categories on the resolution of thoroughly modern difficulties in defining the boundaries of the criminal law. Uses of the materials in diverse teaching formats. Over the past decade, law schools have begun experimenting with a variety of formats for the basic criminal law course. Although the year-long five- or six-hour course remains common, some schools offer criminal law as a four- or even three-hour course, and some schedule the course in the second semester or even in the second or third years. Under these circumstances, a short book designed to be taught straight through, without adjustments or deletions, is bound to prove unsatisfactory for many users. In preparing the fifth edition we have sought to organize and edit the materials tightly enough to avoid significant surplusage for the average course, but we have not attempted to preempt all possible judgments about inclusion and exclusion. Rather, we thought it essential to preserve some freedom for teachers to select topics that accord with their own interests and with the curricular arrangements at their own schools. Thus, we have aspired to create a flexible teaching tool, one that reflects the rich diversity of the subject. For the five- or six-hour, year-long course, the book can be taught straight through, perhaps with some minor deletions. For a four-hour course, and especially in the case of a three-hour course, substantial omissions will be necessary. Many teachers will have their own preferences, of course. We present here our own thoughts, based on our experience in structuring the material for use in shorter courses, both in the first semester and in the second and third years. Chapter 1 (How Guilt is Established). Part A of this chapter (The Structure of the Criminal Justice System) consists of textual material that lends itself either to class discussion or to reading outside of class. In a shorter course it should be assigned as background reading, and the first class can being with a discussion of the material in Part B (The Process of Proof). In schools that require a criminal procedure course before the study of criminal law, Part B of chapter 1 can be largely omitted. It may be appropriate, however, to take up Section B3 (proof beyond a reasonable doubt). For students taking criminal law in the first semester of their first year, Part B of Chapter 1 provides basic grounding in process. The Teacher who is unable to cover the entire Part can consider assigning Section B1 (overview), and Sections B2 (evidence) and B3 (assigning the burden-of-proof materials but omitting the material on presumptions). We believe that this material, which can be covered in roughly two or three classes, provides a solid foundations for the subsequent study of substantive law. Teachers who skip Section B5 (role of counsel) at the beginning of the course may wish to return to it later. This material raises provocative issues of pervasive importance for the study and practice of law; its themes can provide an appropriate and effective concluding topic for the course. Chapter 2 (The Justification of Punishment) is basic to the substantive part of the course. Part A (Why Punish?) presents material that many teachers will with to discuss directly and in depth in class. Others have found it preferable, either because of time pressure or pedagogical taste, to deal with the purposes of punishment in the context of particular substantive subjects, such as mens rea, actus reus, causation, attempt, justification or excuse. Part B (What to Punish?) raises basic problems that can be examined usefully either at this point or toward the end of the course. Chapters 3 (Elements of Just Punishment), 5 (Homicide), 6 (Harm), 7 (Group Criminality), and 8 (Justification and Excuse) will constitute the core of the typical substantive criminal law course, and, generally, teachers will want to cover them in depth. Chapter 4 (Rape) is important in its own right and as a complement to the materials on mens rea. It can be studied immediately after the mistake-of-fact cases in Chapter 3 or after all of Chapter 3 has been completed. Part C of the chapter on rape (problems of proof) can be used to pursue in more detail the themes studied in Chapter 1, or it can be used to introduce those themes when time does not permit full consideration of Chapter 1. Chapter 9 (Theft) pursues the general themes of the course in the context of a specific crime heavily influenced by historical tradition and by the common law method. In the typical three-hour course, either this chapter or a substantial segment of other material (such as conspiracy) often has to be omitted. In a four-hour course, a detailed treatment of this chapter affords an occasion to explore the problems of defining actus reus and mens rea and determining the appropriate reach of criminalization in a setting of continuing practical importance.
Distinctive Practices of the Second Circuit

Richard L. Revesz

There are 12 regional federal courts of appeals in the nation, including one covering only the area of the District of Columbia. And there is another Article III court of appeals—for the Federal Circuit—whose jurisdiction is defined by type of case rather than by geography. These 13 federal Article III appellate courts have only 168 authorized active judges. With so few courts and so small a group of judges handling almost all of the nation’s federal appellate jurisdiction (with the exception of the Supreme Court), one would think that the workings of these courts and their personnel would be well known to practicing lawyers, if not to the citizenry at large. Yet this is not so. The reasons are not hard to find—the general lack of interest in the law schools in judicial administration, the tendency of the media to concentrate on the drama of the trial court of the national significance of a Supreme Court ruling, and so on. As a result, many lawyers are only dimly aware of the way in which the circuit court of appeals in their area operates. They are even les aware of the differences in customs and procedures among the circuits, some of which have assumed importance only in the last decade or two as the volume of cases in the federal courts has increased sharply. This book is a modest attempt to eliminate some of that ignorance. It is not meant to be historical or exhaustive. It is designed to educate and to kindle interest in the workings of only one of the nation’s regional appellate courts—the United States Court of Appeals for the Second Circuit. Our court follows procedures that are quite different from those used two decades ago. In that respect, the Second Circuit is like all the other circuits that have had to adapt to the caseload explosion. But the Second Circuit also follows procedures that are, in significant ways, unlike those utilized in most of the other circuits, as the following pages show. But whether the procedures are new or old, unique or typical, lawyers who practice in the federal courts of New York, Connecticut and Vermont, should be familiar with them. The Federal Bar Council, and its President, David A. Trager, therefore, are to be commended for undertaking the project of publishing this book. And all of us should be grateful to Professor Ricky Revesz of New York University Law School for his editorial efforts and illuminating introductory notes. It is my hope that what follows will make it easier for lawyers to appear and practice in the Second Circuit Court of Appeals.
Foundations of American Constitutionalism

David A.J. Richards

In writing the constitution, the Founders combined a Lockean theory of politically legitimate power with the political science they had learned from Machiavelli, Harrington, Hume, and Montesquieu to articulate a new conception of constitutional argument. Examining the Founders' humanist analytical methods and working assumptions, this book combines history, political philosophy, and interpretive practice as it demonstrates an alternative exegesis of the Constitution. It clarifies a wide range of interpretive issues of federalism, enumerated rights (religious liberty and free speech), unenumerated rights (the constitutional right to privacy), and equal protection.
Trial Manual 5 for the Defense of Criminal Cases

Anthony G. Amsterdam

The Trial manual 5 for the Defense of Criminal Cases is a guidebook for criminal defense attorneys. It covers every stage of criminal procedure from investigation through final judgment in the trial court. Its focus is practical. At every stage it describes the ordinary course of proceeding, identifies the actions that defense counsel can take and the decisions that defense cousin must make, itemizes and connects available strategies, and discusses the considerations bearing upon strategic choices. The discussion begins with fundamentals so as to be accessible to lawyers with no criminal experience. It is also serviceable as a procedural primer for law students. But the inventories of options and factors to be considered at each decision point are sufficiently thorough to also serve as a planning checklist for experienced practitioners. Legal analysis similarly proceeds at two levels. Basic doctrinal principles are summarized as background; then the arguments and authorities supporting defense positions on important issues are set out. Volume One opens with a general sketch of criminal procedure and an outline of the first things to think about and do in the three most common situations in which defense counsel enters a criminal case. It then proceeds chronologically to cover all proceedings through arraignment, including bail and other forms of pretrial release, the initial client interview, dealing with police and prosecutors, defense investigation, preliminary hearing, grand jury practice, challenges to indictments and informations, pleas, and plea bargaining. Volume Two examines postarraignment, pretrial proceedings. Because of the importance of federal constitutional law in pretrial motions practice, this volume contains substantial doctrinal analysis presented in a form that permits it to be easily converted into defense briefing. The volume covers motions practice generally, motions to suppress illegally obtained evidence, motions for a change of venue, motions for disqualification of judge, motions for severance and consolidation, motions for discovery (together with other discovery devices and pretrial conference techniques and a chapter on defense trial preparation), motions for state-paid assistance to the defense, motions to postpone or to speed up the proceedings and for dismissal on account of denial of a speedy trial, and interlocutory review of adverse pretrial orders. Volume Three deals with the decision to elect or waive jury trial, with jury selection procedures and challenges before and at trial, and with the trial itself. It discusses rules of evidence that have particular importance in criminal trials, evidentiary foundations and objections, and tactics for handling prosecution and defense witnesses. It deals with trial motions, opening and closing arguments, requests for jury instructions and objections to them, and jury deliberation. It covers posttrial motions and sentencing, and concludes with a short summary of appellate and postconviction procedures and a précis of the first steps to be taken in connection with them.
More Speech: Dialogue Rights and Modern Liberty

Paul G. Chevigny

Drawing on modern philosophy of language and on cognitive psychology, Paul Chevigny constructs a ground-breaking argument for free speech and related procedural rights. He makes a case for maximum freedom of expression on the part of individuals and for a corresponding sharing of information on the part of governments, seeing this “dialogue” as a basic right. In emphasizing the need for open inquiry, he focuses on language as the means by which human beings can work together to solve social and political problems. Besides placing his ideas in relation to those of earlier political philosophers—notably John Stuart Mill—Chevigny incorporates insights from such recent and contemporary theorists as Ludwig Wittgenstein, W.V.O. Quine, Jean Piaget, Lawrence Kohlberg, and Carol Gilligan. The author argues that “there can be no understanding, no rational decision-making, without open discussion. Society needs the discussion for the same reasons the individual does, and needs to devise means to pull people into the discussion in order to find new contexts and new answers for problems.” He proposes a definition of “modern rationality” as the ability to entertain alternatives, to take a fresh point of view, and insists that the rational approach to interpretation is the one that supplies us with new arguments. He include case studies of irrational government decisions made in Poland, Cuba, and the United States and discusses the unfortunate consequences. More Speech also grapples with the problems of access to the media and to information controlled by the government. By stressing the nature of language in his argument for freedom of expression, Chevigny avoids the more familiar argument based on individual sovereignty. Citing the history of ideological conflict with the socialist world, he argues that the socialist rejection of the notion of individualism demands a new approach to the right of free expression. He states: “I wasn’t to persuade those who are doubtful that there is any really strong ground, outside the accepted arguments of our political system, for criticizing the repressive official; those who think that limiting dissent can contribute to economic or cultural development; those who think that rights are peculiar to alienated bourgeois society, or are not useful where there is a strong sense of community.” Chevigny’s approach is a practical one: he demonstrates that it is in the interest of government, both for the solution of policy problems and for the maintenance of authority, to recognize the right of free expression. The government that refuses to do so for whatever reason, he asserts, will eventually pay the price.
Contract Laws of the People's Republic of China

Jerome A. Cohen, Yvonne Y.F. Chan, and Ho Yuk Ming

The ‘Open Policy’ announced by the People’s Republic of China (the ‘PRC’) in the spring of 1978 brought with it a resurgence of Chinese interest in legislation, for both domestic and international purposes. The past decade has witnessed a remarkable law-making effort by the PRC, much of it focused upon contracts and contract-related activity. This book presents English-language translations of the principal fruits of that effort in order to make it available, in one convenient volume, to a broad audience of foreign business people, lawyers, government officials and scholars. The book also provides two introductory essays. The first seeks to place contract legislation in the context of the PRC’s developing legal system and its effort to create a legal environment congenial to foreign business. The second discusses some practical problems that frequently arise in the negotiation of business contracts with China. Following presentation of the legislative material, the third section of the book reproduces some PRD sample contract forms that often constitute the basis for the Chinese side’s negotiation drafts. The reader should be cautioned that the English-language counterparts to the Chinese-language provisions in these forms will need careful review to confirm the accuracy of the translations. With the exception of a few provisions that make no sense, we reproduce the original forms, rather than corrected versions, because that is what foreign negotiators will confront, and to revise each of the forms as we would like would eliminate a good deal of each form. A final section offers a Chinese-English glossary indicating the English equivalents used in our translations. Contracts are protean and play a key role in every economic sphere. Thus, a wide range of Chinese laws and regulations concerning property, finance, companies and other topics refer to contracts related to their subject matter. Because of space limitations, it is not possible to include all such legislation in this volume. The accumulation of PRC legislation on each such topic is becoming so substantial that individual specialized volumes are warranted. Similarly, it is not possible to include all the relevant local legislation, which has been springing up—to use a Chinese metaphor—‘like bamboo shoots after rain.’ The translations in this book are principally the work of my colleagues Ms Yvonne Chan and Mr Ho Yuk Ming, who in many cases have built upon earlier draft translations by my learned partner Ms Jamie P Horsley and other lawyers in the firm of Paul, Weiss, Rifkind, Wharton & Garrison. Several of the translations were originally prepared by attorneys in our firm and published in volumes I, II and III of China’s Foreign Economic Legislation, and we are grateful to the Foreign Languages Press in Beijing for permission to include refined versions of them here.
Labor Law and Business Change: Theoretical and Transactional Perspectives

Samuel Estreicher and Daniel G. Collins

A collection of specially written essays by distinguished legal scholars and practicing lawyers, this book explores the ways in which collective bargaining practices have been forced to adapt and change in response to a radical restructuring in the labor and personnel relations of American businesses. As the contributors demonstrate, current trends--such as a shift from manufacturing to service employment, deregulation, a hostile political environment, and a host of mergers and acquisitions--have made an understanding of traditional labor law doctrine increasingly less central to actual practice. Practitioners today need a thorough grasp of complex new workplace regulations and a mastery of the interplay between legal rules and practical constraints on transactions like plant closings, assets or stock sales, bankruptcy reorganization, and union representation on corporate boards of directors. Labor Law and Business Change places these changes within a comprehensive legal and practical framework and provides expert advice to those who must deal with these developments in the course of structuring particular business transactions.
The Fourteenth Amendment: From Political Principle to Judicial Doctrine

William E. Nelson

In a remarkably fresh and historically grounded reinterpretation of the American Constitution, William Nelson argues that the fourteenth amendment was written to affirm the general public’s long-standing rhetorical commitment to the principles of equality and individual rights on the one hand, and to the principle of local self-rule on the other.
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.