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United Nations, Divided World: The UN's Roles in International Relations
Adam Roberts and Benedict Kingsbury
For the first time in human history, the world consists of theoretically equal sovereign states, most of which belong to one world organization—the United Nations—and subscribe to a single set of principles--those of its Charter. Yet the U.N. has conspicuously failed to solve problems of armaments, war, division, inequality, and dictatorship. An authoritative assessment, this book brings together distinguished academics and senior U.N. officials—including the Secretary-General—in a sympathetic yet critical account of the U.N.'s role in international relations since 1945.
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Passive Loss Rules
Daniel N. Shaviro
Prior edition of Tax Management Portfolio, Passive Loss Rules, No. 549-2d.
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Where the Meanings Are: Feminism and Cultural Spaces
Catharine R. Stimpson
First published in 1990 [sic], this collection of essays in literary criticism, feminist theory and race relations was named one of the top twenty-five books of 1988 by the Voice Literary Supplement. The title covers such subjects as black literature; the reconstruction of culture, changing arts, letters and sciences to include the topics of women and gender; and, the nature of family and the changing roles of women within society. As such, Catharine Stimpson employs a transdisciplinary approach, to encourage greater understanding of the differences among women, and thus socially-constructed differences in general. Where the Meanings Are tells of some of the arguments within feminism during the re-designing and designing of cultural spaces, as post-modernism began to change the boundaries of race, class, and gender. It will therefore be of great value to students and general readers with an interest in the relationship between gender and culture, sex and gender difference, feminist theory and literature.
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The Right to Private Property
Jeremy Waldron
Presenting a comprehensive, critical examination of the claim that private property is one of the fundamental rights of humankind, Waldron here contrasts two types of arguments about rights: those based on historical entitlement, and those based on the importance of property for freedom. He illustrates this contrast with a detailed discussion of the theories of property found in Locke's Second Treatise and Hegel's Philosophy of Rights, and offers original analyses of the concept of ownership, the idea of rights, and the relation between property and equality, finding that traditional arguments about property yield some surprisingly radical conclusions.
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The Personal Vote: Constituency Service and Electoral Independence
Bruce Cain, John A. Ferejohn, and Morris Fiorina
Modern legislators are increasingly motivated to serve their constituents in personal ways. Representatives act like ultimate ombudsmen: they keep in close touch with their constituents and try to cultivate a relationship with them based on service and accessibility. The Personal Vote describes the behavior of representatives in the United States and Great Britain and the response of their constituents as well. It shows how congressmen and members of Parliament earn personalized support and how this attenuates their ties to national leaders and parties. The larger significance of this empirical work arises from its implications for the structure of legislative institutions and the nature of legislative action. Personalized electoral support correlates with decentralized governing institutions and special-interest policy making. Such systems tend to inconsistency and stalemate. The United States illustrates a mature case of this development, and Britain is showing the first movements in this direction with the decline of an established two-party system, the rise of a centrist third party, greater volatility in the vote, growing backbench independence and increasing backbench pressure for committees and staff. This book is essential for specialists in American national government, British politics, and comparative legislatures and comparative parties.
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Agency, Associations, Employment, and Partnerships: Cases, Statutes and Analysis
Alfred F. Conard, Robert L. Knauss, and Stanley Siegel
We have sought in this coursebook to provide to our students an overview of the entire range of business and nonprofit organizations. We believe that lawyers should be familiar not only with the corporate form of organization, which continues to dominate most elements of big business, but also with the partnership form, in which both large and small businesses have shown renewed interest, and with individual proprietorships, which far outnumber partnerships and corporations combined. As in earlier editions of this book, we probe beyond the rules applicable to particular organization forms, discussing in detail the legal principles applicable to the structure and operations of all enterprises. We have included legal and economic materials on the principles of agency in tort and contract, which are inescapably involved in nearly every contact between enterprises of every form and the public with which they deal, whether for good or evil. We aspire not only to enlighten our readers about the rules of decision, but also to provoke serious examination of the social and economic policies that may be served or disserved by legal rules. In this edition we continue to present comparative materials from other legal systems, and we offer considerably expanded materials from other legal systems, and we offer considerably expanded materials on economic theory, with the hope that these may enhance understanding and evaluation of existing and proposed legal structures in this country. Throughout the text, we have deleted or summarized older cases and added contemporary cases, notes and articles. The materials on general and limited partnerships have been expanded to reflect the increased use of these forms in both small and large enterprises, as well as the dramatic changes in substantive law represented by widespread adoption of the Revised Uniform Limited Partnership Act and major changes in the tax laws relating to partnerships. The materials in this book are drawn entirely from the companion volume on Enterprise Organization (fourth edition), and are offered in this form for those instructors whom may wish to present a separate course on noncorporate organization or to use a separate text on corporation law. We have included in the coursebook for ready reference the texts of the Uniform Partnership Act and both the original and revised versions of the Uniform Limited Partnership Act. This edition carries forward the organization and approaches that have been welcomed by teachers in three preceding editions under this title, and in three before them under the title of “Business Organization.” We hope that this successor edition will help future attorneys to understand the structure of the organizations that conduct most of our economic life, and to promote the interests not only of their clients but of the society in which they all play a role.
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Enterprise Organization: Cases, Statutes, and Analysis on Licensing, Employment, Agency, Partnerships, Associations, and Corporations
Alfred F. Conard, Robert L. Knauss, and Stanley Siegel
We have sought in this coursebook to provide to our students an overview of the entire range of business and nonprofit organizations. We believe that lawyers should be familiar not only with the corporate form of organization, which continues to dominate most elements of big business, but also with the partnership form, in which both large and small businesses have shown renewed interest, and with individual proprietorships, which far outnumber partnerships and corporations combined. As in earlier editions of this book, we probe beyond the rules applicable to particular organization forms, discussing in detail the legal principles applicable to the structure and operations of all enterprises. We have included legal and economic materials on the principles applicable to the structure and operations of all enterprises. We have included legal and economic materials on the principles of agency in tort and contract, which are inescapably involved in nearly every contact between enterprises of every form and the public with which they deal, whether for good or evil. We aspire not only to enlighten our readers about the rules of decision, but also to provoke serious examination of the social and economic policies that may be served or disserved by legal rules. In this edition we continue to present comparative materials from other legal systems, and we offer considerably expanded materials on economic theory, with the hope that these may enhance understanding and evaluation of existing and proposed legal structures in this country. Throughout the text, we have deleted or summarized older cases and added contemporary cases, notes and articles. The materials on general and limited partnerships have been expanded to reflect the increased use of these forms in both small and large enterprises, as well as the dramatic changes in substantive law represented by widespread adoption of the Revised Uniform Limited Partnership Act and major changes to the tax laws relating to partnerships. In the corporate area, comments and references are now keyed to the Revised Model Business Corporation Act. The discussions of distributions and major corporate changes have been extended, and the contemporary phenomenon of tender offers has been given substantial attention. We have designed the coursebook to be used with a separate statutory supplement. This arrangement permits readers to have simultaneously before them a case or comment, and the statute involved. It also permits the student to become familiar with the structure of the entire statute, and to see how each provision relates to others. This edition carries forward the organization and approached that have been welcomed by teachers in three preceding editions under this title and in three before them under the title of “Business Organization.” We hope that this successor edition will help future attorneys to understand the structure of the organizations that conduct most of our economic life, and to promote the interests not only of their clients but of the society in which they all play a role.
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Cases and Materials on Civil Procedure
David Crump, William V. Dorsaneo III, Oscar G. Chase, and Rex R. Perschbacher
Organization and Methodology. This book is mostly traditional in approach. It is organized along the lines of the events in a lawsuit, beginning with service of process and establishment of the court’s jurisdiction, and proceeding through post-trial motions and appeals. For the most part, it uses the traditional case method. Law professors will recognize most of the “old favorite” cases, including venerable decisions such as Pennoyer v. Neff, modern classics such as Burger King Corp. v. Rudzewicz, and many others in between. Special Features. An Introduction to the Practice of Civil Litigation through Actual Litigation Documents. In addition to traditional case materials, the book include documents from actual litigation. Complaints and answers, motions, briefs, orders, and in the discovery chapter, a short deposition, are all excerpted for the student to see and study. We also have a set of self-initiated disclosures adapted from a real case. In some instances, a series of related papers tells the story of the underlying litigation. For example, Chapter 2 ends with an appendix containing all of the major papers in a typical forum contest. Likewise, Chapter 9 contains the documents presented by both sides in a typical summary judgement proceeding. (We also think students will be fascinated with Chapter 10, which contains excerpts from the jury selection, court’s charge, and final arguments in Pennzoil Co. v. Texaco Inc.—the case that produced the largest jury verdict in history.) These materials are integrated with traditional appellate opinions, so that the skills the student develops through the case method can also be used to analyze the practice documents. We believe these “real world” materials will help the student to understand the theory of civil procedure better, as well as providing insight into what litigators do. “Improving the Systems”: Introducing Theoretical Issues at the Cutting Edge of the Law, Including Alternate Dispute Resolution. We would not be content, however, with introducing the student to current practice. A good lawyer needs to be able to grow with the law. In fact, he or she needs to think ahead of the current state of the law. Therefore, we have included sections in most chapters entitled “Improving the System.” We think these sections will help the student to think critically about current practice, and although the issues in the “Improving the System” section usually will have been raised earlier in the chapter, there is a benefit in looking at proposed improvements as a group. Our experience indicates that this method encourages deeper thought about the purposes of the Rules of Civil Procedure. A “User Friendly” Book. Above all, we have tried to produce a book that makes the fundamental easy for the student to grasp. Although Civil Procedure may be the most difficult course in the first-year curriculum (we have no illusions of making it truly simple), we have done our best to make our book “user friendly.” For example, particularly difficult cases are preceded by notes entitled “How to Read this Case.” The cases are edited with student comprehension in mid, and explanations of difficult principles are inserted in brackets. In a few instances, difficult cases are precede by problems designed to prepare the student in advance. Our notes and questions are self-contained; they do not require the student to consult outside sources. Our philosophy is that is it best for the student to come to class having actually understood the material in the book. The class then does not need to consist solely of helping to get across the basics, and the professor can raise more interesting issues. Supplementation of Traditional Federal Materials With an Introduction to Differing State Practices; Use of California, New York, and Texas as “Benchmark” States. It is traditional to emphasize the federal system in a beginning course in Civil Procedure. This book follow that emphasis. It provides the basis for a thorough understanding of the Federal Rules of Civil Procedure. One unique feature of the book, however, is that we have supplemented this fundamental federal emphasis with a brief look at the analogous procedures of three benchmark states: California, New York, and Texas. We selected these states because they do not follow the federal rules as closely as other states. Hence, comparative analysis is encouraged. In every chapter, the treatment of state practice is brief and does not detract from the major purpose of teaching the federal rules. We believe that an introduction to these benchmark states’ rules will stimulate deeper thought about the advantages and disadvantages of the federal rules.
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Human Rights in Internal Strife: Their International Protection
Theodor Meron
Ours is a world torn by violence and strife, characterized by cruelty of one human being to another. We observe around us an ever changing mosaic of confrontations, often defying simple or simplistic characterizations; ranging from situations of internal repression and tension to violent internal strife, internal armed conflict, civil war, internationalized-internal conflicts or international armed conflicts, and quite often various complex and mixed conflicts. Most of these situations of strife do not correspond to the classical models of civil and international wars, so central to Oppenheim—Lauterpacht’s vision of the world, although these situations continue to plague us too. Thus, a considerable part of the present activity of the International Committee of the Red Cross takes place outside of international or internal armed conflicts regulated by the Geneva Conventions of August 12, 1949, for the Protection of Victims of War. It occurs in situations of internal strife involving violence of lower intensity. Are situations of violent internal strife a passing or a lasting phenomenon? Authoritative predictions made by the ICRC and others support the latter forecast. These situations, which are neither war nor peace, are characterized by massive and brutal violations of human dignity. Since such strife situations are not only most frequent, but are apparently here to stay, the principal questions which I wish to address in this book is this: is the international community equipped with the necessary tools to cope with these proliferating situations of internal strife? Or is it treating the epidemic of today with the medicine of yesterday? Or perhaps without any effective medicine at all? Obviously, as international lawyers interested in human rights and humanitarian law, we would like to see a continuum of norms protecting the rights of the human person in all situations, especially in situations of strife accompanied by violence, whatever its level. In every situation of strife there should be a convergence of humanitarian and human rights norms, or at least one of these two systems of safeguards should apply and offer effective and adequate protections to the victims. My object is to explore whether there exists a dangerous lacuna in the area of internal strife, where humanitarian law meets with human rights law. If a lacuna is found to exist, does it reflect a norm-deficiency, or lack of respect for the existing law or, perhaps, both? And, depending on the diagnosis, what should the remedy be? My analysis will be two pronged, encompassing both humanitarian law and human rights law. I shall have to draw a wide panorama of these two systems of protection. I shall examine internal strife principally in relation to its characteristic general features, without reference to particular countries. Account of the situation in any single country inevitably prompt debate upon conflicting factual allegations, which would deflect us from our task of developing an understanding of the nature of internal strife and suggesting the necessary remedies.
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What Does It All Mean?: A Very Short Introduction to Philosophy
Thomas Nagel
In this cogent and accessible introduction to philosophy, the distinguished author of Mortal Questions and The View From Nowhere sets forth the central problems of philosophical inquiry for the beginning student. Arguing that the best way to learn about philosophy is to think about its questions directly, Thomas Nagel considers possible solutions to nine problems—knowledge of the world beyond our minds, knowledge of other minds, the mind-body problem, free will, the basis of morality, right and wrong, the nature of death, the meaning of life, and the meaning of words. Although he states his own opinions clearly, Nagel leaves these fundamental questions open, allowing students to entertain other solutions and encouraging them to think for themselves.
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Law and Social Change in Postwar Japan
Frank K. Upham
Many people believe that conflict in the well-disciplined Japanese society is so rare that the Japanese legal system is of minor importance. Frank Upham shows conclusively that this view is mistaken and demonstrates that the law is extensively used, on the one hand, by aggrieved groups to articulate their troubles and mobilize political support and, on the other, by the government to channel and manage conflict after it has arisen. This is the first Western book to take law seriously as an integral part of the dynamics of Japanese business and society, and to show how an informal legal system can work in a complex industrial democracy. Upham does this by focusing on four recent controversies with broad social implications: first, how Japan dealt with the world’s worst industrial pollution and eventually became a model for Western environmental reforms; second, how the police and courts have allowed one Japanese outcast group to use carefully orchestrated physical coercion to achieve wide-ranging affirmative action programs; third, how Japanese working women used the courts to force employers to eliminate many forms of discrimination and eventually convinced the government to pass an equal employment opportunity act; and, finally, how the Ministry of International Trade and Industry and various sectors of Japanese industry have used legal doctrine to cope with the dramatic changes in Japan’s economy over the last twenty-five years. Readers interested in the interaction of law and society generally; those interested in contemporary Japanese sociology, politics, and anthropology; and American lawyers, businessmen, and government officials who want to understand how law works in Japan will all need this unusual new book.
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Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man
Jeremy Waldron
In Nonsense upon Stilts¸ first published in 1987, Waldron includes and discusses extracts from three classic critiques of the idea of natural rights embodied in the 1789 Declaration of the Rights of Man and the Citizen. Each text is prefaced by an historical introduction and an analysis of its main themes. The collection as a whole in introduced with an essay tracing the philosophical background to the three critiques as well as the eighteenth-century idea of natural rights which they attacked. But the point of reproducing these works is not merely historical. Modern attacks on 'rights-based' political philosophy mirror the concerns of Bentham, Burke and Marx. Jeremy Waldron has therefore added an extensive concluding essay which relates these classic texts to the modern discussion of rights and re-examines the idea of rights in the light of contemporary critiques. This text provides an invaluable teaching tool for courses in politics and philosophy.
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'Nonsense upon Stilts': Bentham, Burke, and Marx on the Rights of Man
Jeremy Waldron
Waldron includes and discusses extracts from three classic critiques of the idea of natural rights embodied in the 1789 Declaration of the Rights of Man and the Citizen. Each text is prefaced by an historical introduction and an analysis of its main themes. The collection as a whole in introduced with an essay tracing the philosophical background to the three critiques as well as the eighteenth-century idea of natural rights which they attacked. But the point of reproducing these works is not merely historical. Modern attacks on 'rights-based' political philosophy mirror the concerns of Bentham, Burke and Marx. Jeremy Waldron has therefore added an extensive concluding essay which relates these classic texts to the modern discussion of rights and re-examines the idea of rights in the light of contemporary critiques. This text provides an invaluable teaching tool for courses in politics and philosophy.
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For Truth in Semantics
Kwame Anthony Appiah
It is odd that someone with a memory as poor as mine should remember so pricesely when he first heard mention of assertibility conditions. But I think I do. For I can remember going into Philip Pettit’s rooms in Trinity Hall when I was an undergraduate and seeing on the tiny blackboard he had there the three expressions t-c’s, a-c’s and j-c’s. Never one to miss an opportunity to avoid discussing my essay, I asked what these expressions stood for: the answer, as of course you have already worded out, is ‘truth conditions’, ‘assertibility conditions’ and ‘justification conditions’. Because I can remember this I know that from the very beginning I was taught not to assume that when someone said ‘assertibility conditions’ they were talking about evidence that warranted an assertion. Of course, for Dummett, a-c’s are j-c’s; but if I had not started off thinking of this as a substantial claim, I might never have become interested in theories that use the notion of a condition for assertion that is not that of having evidence for the belief that the assertion expresses. I think that would have been a pity, as I wrote a doctoral dissertation (1981) and then a book (1985b) that showed how such a notion solved the central questions of the semantics of indicative conditionals. On the way I became interested in Dummett’s use of the term ‘assertibility’, and this book is the product. ‘Interested’ may be too mild a word. For this book is a polemic. Though I shall make positive suggestions from time to time, my main intention is to attack the cluster of views that Michael Dummett has developed under the banner of ‘anti-realism’. I think anti-realism should be given up: given up because many of its claims are false, and the conjunction of its central claims is inconsistent. At the heart of anti-realism are three claims: (a) that standard truth-conditional theories of meaning—which Dummett has styled ‘realist’—are objectionable because such truth conditionals transcend verification, (b) that such theories are committed to bivalence, and that this entails verification-transcendence and (c) that we should therefore develop an alternative style of semantic theory, whose basic notion is not truth but assertibility. I call (a) the negative programme, and (c) the positive programme of anti-realism. This collection of ideas is of quite general interest. For (a) is related to verificationism, which is in the background of all modern analytic philosophy, and (c) derives from pragmatism, the other main tradition of modern empiricist thought. Because of this, I think, we can take a look through the lens of anti-realism at how more general issues in epistemology impinge on the philosophy of language. I think I am an empiricist: ‘empiricism’ is a broadly encompassing term. But I have three major objections to these claims. I deny (a) because it rests on a misunderstanding both of what is involved in a theory’s being verifiable and of the way that truth conditions operate in realist theories. I deny (a), that is, despite the fact that I am sympathetic to verificationism. That is my first objection. I deny (c) because assertibility-based theories entail falsehoods about meaning. That is my second. I also think (a) and (c) are inconsistent, since assertibility-based theories are verification-transcendent if truth-based theories are; so you might say my third objection is that you cannot have verificationist grounds for pragmatism. You will notice that I say nothing about (b), which Dummett has made central to his position. Dummett’s view is that bivalence entails verification-transcendence; I deny this also, because it rests on the same misunderstanding that vitiates (a). So I do not need to discuss the connection between bivalence and realism, since, as Dummett would concede, it is only if realism is verification-transcendent that bivalence is an issue. Neil Tennant has kindly shown me a manuscript of his book, Anti-Realism and Logic, where he defends the theses that in the domain of formal objects bivalence fails, and I am sympathetic to the view that anti-realism of some sort is indeed plausible there. But my concern is with empirical reality, and here, as I say, I shall argue that anti-realism is wrong. Because I think Dummett misunderstand the role of truth conditions in realist theory, I begin, in chapter 1, by giving a brief outline of what I think is the correct account. Polemic, though addressed against one position, is usually intended as an indirect defence of another. The full theory, of which chapter 1 is an adumbration, I give in Assertion and Conditionals (1985b). Chapter 2 outlines both the positive and negative programmes of anti-realism. That much is given, the stage is set for part II, which offers the arguments against Dummett’s understanding of verifiability; and part III, which argues against his pragmatist leanings. So perhaps I should say this book is a polemic preceded by a sketch of its background. In part II I try to clarify the relevant facts about verification; this is the attack on (a), the negative programme of anti-realism. Chapters 6-8, which make up the bulk of part III, are the attack on (c), the positive programme. Chapter 6 shows that anti-realism is verification-transcendent if realism is. Chapter 7 shows that a particular version of assertibility condition semantics, suggested by Crispin Wright, Dummett’s stoutest lieutenant, fails. Chapter 8 explains why no assertibility condition theory of the kind Dummett envisages could succeed. In chapter 6 I suspend my disbelief in Dummett’s notion of verification-transcendence. I do not think that the arguments there are an objection to the positive programme: I do not think that the fact that a theory transcends verification in Dummett’s sense is an objection to it at all. The force of the arguments is to prise apart the positive and negative programmes by showing that the negative programme undermines the positive one. That is why the further arguments of chapters 7 and 8 are needed to show, independently, that the positive programme fails. Dummett’s views are usually seen as a generalization of intuitionist criticism of Platonism in mathematics. I shall say little about intuitionism in se but I do argue, at various points, that mathematics is a misleading model. If that is right, my reticence about intuitionism is in order. My own view is that a realist—that is, a truth-conditional—semantics need not be objectionable on verificationist grounds, if verifiability is properly construed. Unlike most realists, my position is thus not that the truth of realism requires that we give up demanding verifiability of our theories. Whether we should demand that our theories be verifiable is another question: for the moment, I am disposed to do so—subject to caveats entered at the end of 5.5—largely because I would rather be epistemologically safe than sorry. But if we should not, that is another reason for giving up anti-realism. Conceding verificationism is in part, then, a rhetorical strategy. It is widely agreed that anti-realism is verificationist and some people have objected to it on that ground alone. If we can show that anti-realism is objectionable even if verificationist, which anti-realism clasps to its bosom, is true, that strengthens the case against it. I mentioned just now some caveats that I enter at the end of 5.5 about the possibility of a realist’s accepting some form of verificationism. These caveats have the effect of limiting verificationism to the claim that sentences ascribing certain properties to objects ought to be verifiable. I do not say there which properties these should be: but I do think it is consistent with realism to insist that this condition be satisfied for some objects by every property that is expressed by a predicate to which our semantics assigns an interpretive axiom. This, however, is a mere expression of opinion. For reasons that I shall give in 5.5, I do not think it need be part of the project of this book to argue for such a claim. In fact, the form of verificationism I assume in part I has been identified by Wright as a (weak) kind of anti-realism, and it may be as well to bear this in mind throughout part I, until I defend my doubts about this identification. But if Wright is correct, that does not weaken the force of my argument. For what I show is that, whether or not we call this form of verificationism ‘anti-realist’, it does not threaten realist semantics in the way anti-realists have argued. If I were asked what the importance of these questions is, I would say, first: the negative programme of anti-realism is verificationist, the positive programmed is pragmatist; to show that the former is consistent with realism and the latter cannot be carried out, should be of interest to many with no established interest in anti-realism in semantics. I would go on to add, however, that the persistence of the anti-realist view is one of the most serious obstacles to the acceptance of the realist programme, and it diverts much intelligence away from developing realist theories. I hold the spread of true belief and the dissipation of false belief, especially where justified by sound reasoning, to be, ceteris paribus, desirable. This book is meant as a contribution to that end. To borrow a familiar Wittgensteinian image: there is a ladder of argument here up which to climb, but when you get to the top, the ladder is only for throwing away. This book is intended to make itself unnecessary.
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Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process
Samuel Estreicher and John E. Sexton
Is the United States Supreme Court facing a workload crisis that threatens its capacity to perform its constitutional functions? Former Chief Justice Warren Burger and others have proclaimed the existence of such a crisis and have proposed the creation of a new national court of appeals that would promulgate nationally binding law in cases referred to it by the Supreme Court. Samuel Estreicher and John Sexton argue that what the country needs is not a new appellate court but a redefinition of the role of the Supreme Court in our society. The authors, who recently directed a large study on this topic for New York University, suggest that the volume of litigation and the pervasive reach of federal law make it impossible for the Supreme Court to be the ultimate check on error in our legal system. They propose instead that the Supreme Court should act as the manager of the national lawmaking process, overseeing the work of the federal and state courts and intervening only when necessary. Using this managerial concept of the Supreme Court, the authors develop comprehensive criteria for Supreme Court case selection - criteria that would systematize the Court's own vague and inconsistent case selection process - and then apply these criteria to each of the cases that came before the Court in a specific period. By assessing empirically the Courts "workload crisis," they find that a significant portion of the time and energies of the Supreme Court is being misdirected and that the Court has ample capacity to decide all the cases that truly require its attention.
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Human Rights Law-Making in the United Nations: A Critique of Instruments and Process
Theodor Meron
This book is an examination and critique of the methods employed by the United Nations in adopting human rights instruments. Three of the major instruments—the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Convention on Civil and Political Rights—are selected for detailed study. The author concludes that the present system of law-making is inadequate and points to many examples of unclear provisions and of overlap and conflict within a single instrument or between instruments. In order that this important function of the organized international community—that of protecting human rights—can work effectively, improvements in law-making techniques are necessary, and the author concludes with some suggestions for reforms both of the institutions and of the process itself.
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The View from Nowhere
Thomas Nagel
Human beings have the unique ability to view the world in a detached way: We can think about the world in terms that transcend our own experience or interest, and consider the world from a vantage point that is, in Nagel's words, “nowhere in particular.” At the same time, each of us is a particular person in a particular place, each with his own “personal” view of the world, a view that we can recognize as just one aspect of the whole. How do we reconcile these two standpoints--intellectually, morally, and practically? To what extent are they irreconcilable and to what extent can they be integrated? Thomas Nagel's ambitious and lively book tackles this fundamental issue, arguing that our divided nature is the root of a whole range of philosophical problems, touching, as it does, every aspect of human life. He deals with its manifestations in such fields of philosophy as: the mind-body problem, personal identity, knowledge and skepticism, thought and reality, free will, ethics, the relation between moral and other values, the meaning of life, and death. Excessive objectification has been a malady of recent analytic philosophy, claims Nagel, it has led to implausible forms of reductionism in the philosophy of mind and elsewhere. The solution is not to inhibit the objectifying impulse, but to insist that it learn to live alongside the internal perspectives that cannot be either discarded or objectified. Reconciliation between the two standpoints, in the end, is not always possible.
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Toleration and the Constitution
David A.J. Richards
Why have the issues of religious liberty, free speech and constitutional privacy come to figure so prominently in our society? What are the origins of the basic principles of our constitutional law? This work develops a general theory of constitutional interpretation based on an original synthesis of political theory, history, law, and a larger approach to the interpretation of culture. Presenting both historical and theoretical arguments in support of a theory that affirms the moral sovereignty of the people, Richards maintains that toleration, or respect for conscience and individual freedom, is the central constitutional ideal. He discusses such current topics of constitutional controversy as church-state relations, the scope of free speech, and the application of the constitutional right to privacy, to abortion, and consensual adult sexual relations.
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How Free Are We?: What the Constitution Says We Can Do and Cannot Do
John E. Sexton and Nat Brandt
How Free Are We? tackles the complex issue of how the Constitution affects our everyday lives from the bedroom to the workplace to the voting booth. Steering clear of the legal language of the document itself, this book uses a lively question-and-answer format to address such issues as the right to die, environmental law, the rights of minors, religious freedom, the rights of homosexuals, and the evolving rights of citizens vis-à-vis the police and the courts. Each of the more than 125 entries contains both the historical background and the contemporary status of constitutional law. As a result, the book dramatizes the fact that the Constitution is a living, breathing document constantly subject to interpretation and change. Chapters include: The Making and Amending of the Constitution, Congress, The Presidency, The Supreme Court, The States, The Right to Vote, Religion, Freedom of Expression, Individual Rights, Equality, Criminal Justice, The Schools, The Workplace and The Military.
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Assertion and Conditionals
Kwame Anthony Appiah
This book develops in detail the simple idea that assertion is the expression of belief. In it the author puts forward a version of 'probabilistic semantics' which acknowledges that we are not perfectly rational, and which offers a significant advance in generality on theories of meaning couched in terms of truth conditions. It promises to challenge a number of entrenched and widespread views about the relations of language and mind. Part I presents a functionalist account of belief, worked through a modified form of decision theory. In Part II the author generates a theory of meaning in terms of 'assertibility conditions', whereby to know the meaning of an assertion is to know the belief it expresses.
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Administrative Law and Regulatory Policy: Problems, Text, and Cases
Stephen G. Breyer and Richard B. Stewart
In writing this new edition, we have tried to increase the clarity of our presentation, to deepen the discussion of certain issues, and, of course, to update the materials throughout the book. Here, we wish to call attention to three major changes. First, we have reorganized certain sections in order to promote conceptual clarity and pedagogical effectiveness. We have expanded and reorganized Chapter 4 in order to focus greater attention on the general problem of substantive judicial review of agency decisions. We explore the traditional nature of “review of fact,” “review of law,” and “review of discretion,” contrasting older and more recent cases in part to flag some of the difficulties arising out of current judicial attitudes toward “review.” We have also restructured the materials at the end of Chapter 7 to emphasize some of the principal issues raised by the effort to apply hearing rights to different program areas without attempting to provide detailed account of all the case law. Finally, we have reorganized the first part of Chapter 9 in an effort to clarify historical and contemporary problems of jurisdiction and remedies. Second, we have sought to develop further materials designed to acquaint students with the policy and institutional background of the most important types of administrative programs. We have added discussions of two additional basic types of regulation: “standard setting” (in connection with State Farm, the “air bags” case) and “screening” (in connection with the “Benzene” and “Cotton Dust” cases). With the addition of these examples the book contains a fairly complete typology of regulation, which can be taught in some depth by the interested teacher. We have also rewritten Chapter 7 to provide a more complete account of the social security disability program as an example of “mass justice.” Third, we take account of “deregulation” and, where appropriate, raise policy problems related to the “regulatory reform” that has taken place or has been proposed since the first edition. We have expanded, for example, the discussion of television regulation in Chapter 5 to take account of “deregulatory” developments. Our general aim remains the same as in the first edition. We ask the student both to understand administrative law and to think about its strengths and weaknesses in an age of regulatory reform. We have organized the book to facilitate the teaching of a traditional procedural course in administrative law. The discussions of substantive regulation and mass justice administration can be used to enrich that course or to survey the field of classical regulation, depending on the teacher’s interests and emphasis. The problems included throughout are specifically designed to facilitate classroom discussion and review of the principles and material in the particular subsection preceding the problem. We have successfully used these problems as a basis for written assignments and class presentation. Our teachers’ manual shows how we use the problems to teach our class.
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Civil Procedure: Cases and Materials
John J. Cound, Jack H. Friedenthal, Arthur R. Miller, and John E. Sexton
This Fourth Edition, which has been prepared by Jack H. Friendthal, Arthur R. Miller, and John E. Sexton, had had the benefit of many comments of colleagues from the large number of schools in which the first three 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 Fourth Edition preserves the same basic format and much of the material found in the earlier editions. Why then is a new edition necessary? Certainly a revision cannot be justified simply to achieve relatively trivial improvements or merely to replace the original text with more recent matter of similar substantive content. The reason for this volume is that since publication of the Third 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 class actions has been substantially reworked and expanded, in recognition of the tremendous growth of litigation in that format; the chapter on res judicata and collateral estoppel has been reworked completely; and new sections, reflecting the recent amendments to the Federal Rules of Civil Procedure have been added to other chapters. In addition, a chapter has been added on alternative dispute resolution to recognize the importance of this strikingly new phenomenon. 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 briefer introductions to other sections of the book, we have tried to tell students where they are going, and through extensive cross-referencing and questions we have tried to force them to review where they have been. We have not concentrated on the law of any one jurisdiction, although there is substantial emphasis on the operation of the Federal Rules of Civil Procedure, which have served as a model and focal point for serious discussion and implementation of procedural reform in a large majority of the states. In general the book operates on a comparative basis, except in contexts in which this approach has more limited utility than an in-depth exploration of a single system. A careful attempt has been made to strike a balance between exploration of underlying philosophical problems and analysis of day-to-day matters that arise frequently in office practice or in the courts. Our theory is that a mixture of both is necessary to give students a comprehensive understanding of procedure. How else can they learn why, even today, after so many years of study, revision, and reform, major proposals for alteration of adjective law are still being made, and, undoubtedly, will continue to be made in the years to come? In addition, considerable use has been made of historical material, not only when it is directly relevant to today’s system, as in the study of the right to jury trial, but also in contexts in which it is necessary for a true grasp of the basic problems. Because 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 term of the law student’s first year; yet they may easily be divided into two or more quite different subjects to be given either as preliminary or advanced courses. The first chapter of this casebook sets forth a basic, textual statement of a procedural system’s framework, without which an understanding of any particular part of the system is difficult, if not impossible. This initial discussion defines those procedural terms necessary for comprehending legal opinions, whether they be of a procedural or substantive character. This 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 (some of which are changed from the Third Edition) 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 factor study of the entire course. In general, Chapter One is intended to let students form some idea as to the nature of the litigation “forest” before attempting to make them master of any of its “trees.” After the first chapter, the structure of the book proceeds in a chronological fashion. The authors believe that this is the most logical way to teach civil procedure because it permits students to see the evolution and maturation of the litigation process. Furthermore, by putting personal and subject-matter jurisdiction and the materials dealing with the history of civil procedure before such subjects as pleading, joinder, and discovery, first year students are given some “breathing time” in which to absorb enough substantive law from torts, contracts, and property courses to enable them to grasp the significance of such matters as “pleading a cause of action,” “contributory negligence,” and “joint and several interests.” Finally, the authors have concluded that despite its conceptual difficulty, person jurisdiction is a much more teachable and exhilarating introduction to civil procedure than is pleading. The chapter on jurisdiction includes an 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 material is greater than is customary in a civil procedure book, but part of it may readily be treated at the end of the course or be eliminated. We believe that without a working knowledge of such concepts as diversity of citizenship and 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 casebook do) would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with no substantial saving in time and probably at a cost in comprehension. At the same time we have eschewed the temptation to overcompensate for the disappearance of courses in equity; we have not attempted to cover the substantive doctrines of that discipline in a historical note. Although we believe history is invaluable to the study of modern procedure, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The materials in this volume refer to and are augmented by a Supplement, which contains not only the federal statutes and rules governing procedure, as is traditional, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance students are able to see the different solutions put forth for particular procedural problems and are induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. Use of the Supplement has the added advantage of permitting teachers and students to keep abreast of interesting alterations in the oftenchanging statutes and rules governing civil procedure, without constant revision of the casebook itself. Our practice has been to revise and reissue the Supplement every two years, adding recent significant cases, thereby achieving considerable flexibility at a nominal 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 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 Third Edition have not been significantly shortened in preparing the Fourth Edition. With regard to footnotes: the same numbering appears in the casebook as appears in the original sources; editor’s footnotes are indicated by letters.
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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
This casebook contains more material than would normally be covered in a two or even three hour course. The authors believe that each teacher should have the opportunity for personal selection.
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