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  Cases and Materials on Torts

  Charles O. Gregory, Harry Kalven Jr., and Richard A. Epstein

  Eight years have passed since the publication of the second edition of the Gregory & Kalven casebook, and they have been perhaps the eight most eventful years in the entire history of tort law. It is impossible and unwise in the space of this brief introduction to canvas these changes in any detail; it must be sufficient to point out that there have been major developments—to mention only the most important—in the law of medical malpractice, of products liability, of no-fault insurance, and of defamation. A casebook which gave an accurate account of the tort law in 1969 simply cannot do adequate service today, and that reason alone justifies the appearance of the third edition of this casebook, which a generation of teachers and students have found a valuable instructional tool. The aims of this casebook are much the same as those of the previous two editions. There is first the goal 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 evergrowing body of substantive rules, and even many of those examined 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 times 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 those which have long ceased to represent the current law. Likewise, in order to capture the nature of legal debate, in many principal cases we have reprinted not only the opinion of the court but that of concurring or dissenting judges. With Rylands v. Fletcher, at page 77, 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 torets in particular is one of the richest bodies of law, and it has been examined end explored from historical and philosophical perspectives not only by the common law judges, but also by generations of academic writes. It is essential for all student sot 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 rules. 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 attitudes either to particular cases or to 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” to hold a defendant liable is—crudely speaking—yielding today to a newer presumption that requires the defendant to show why, with harm established, liability should not follow. The major implications of the shift in presumptions are two. Where it was once the dominant sense of the common law that losses from “inevitable accidents” were outside the tort law, today the view is increasingly that these losses should be shifted by the law first to some particular defendant, and then by use of market mechanisms throughout the society at large. Secondly, defenses based upon plaintiff’s conduct—notably contributory negligence and assumption of risk—have received narrower interpretations in recent years, and by degrees may yet be removed from the substantive law. 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 incentives upon 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 upon 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 upon plaintiff. Second, there is recovery for harms negligently—through the want of reasonable or ordinary care—inflicted upon the plaintiff. Lastly, there is recovery under a theory of strict liability, that is, for harms inflicted upon the plaintiff by a defendant who acts without negligence and without any intention to harm. In dealing with these theories it is important to keep in mind several important themes which reassert themselves throughout the law of torts. One set of issues concerns the relationships between the general approach to the law of torts and the choice of specific theories of liability in particular cases. To illustrate: when does a concern for corrective justice require the use of a strict lability principle, a negligence principle, or an intentional tort principle? What about theories based upon the need for individual compensation, or upon the importance of the tort law as a means of minimizing accident costs by channeling scarce resources to their most efficient use? Second, it is important to ask what are the limitations upon recovery that are consistent with the basic theories of liability, and with their basic orientation to subject matter. In this connection it important to ask the extent to which a plaintiff who otherwise makes our a good cause of action should be denied recovery because of, to use the standard classification, his own conduct—be it called contributory negligence or assumption of risk—the conduct of a third party, or an act of God. Finally, it is crucial to consider what might conveniently be termed the “boundary” questions in the law of torts. As stated, any of the three theories of liability—strict liability, negligence liability or liability for intentional harms—could apply to any case involving harm. Why is it, no matter what general orientation is adopted, that one theory is chosen for one particular case, while another theory is chose for another? To anticipate for a moment, does, for example, the commitment to a theory of strict liability in classical trespass cases—those involving the direct application of force upon the person or property of another—require (or allow) the use of similar theory in cases involving slips and falls on business or residential premises, or for the harm caused by those engaged in ultrahazardous activities or the manufacture of dangerous products?

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  The United Nations Secretariat: The Rules and the Practice

  Theodor Meron

  My interest in the administration of the United Nations dates back to the early sixties when, from the vantage point of a representative on the Fifth (Administrative and Budgetary) Committee of the General Assembly, I could observe the fascinating process of interaction between administrative, budgetary, political, legal, economic, and social factors. In recent years, I, like many others, became increasingly concerned with the trends and the developments in the Secretariat of the United Nations. It is my belief that the future success of failure of the United Nations will be determined not only by the wisdom and sense of responsibility or lack of it—of its political and legislative organs and particularly the General Assembly and the Security Council—but also by the type and the quality of the Secretariat that will carry out the work of the Organization. I felt, therefore, that there is a need for a study of the United Nations Secretariat focusing on the examination of its personnel policies in the light of the United Nations Charter and the subsequently developed law of the United Nations. . . . The Secretary-General of the United Nations has recently referred to the goal of building up an international staff of the highest standard of efficiency, competence, and integrity, responsible only to the Organization and with as wide a geographical basis as possible. He acknowledged that the fact that the United Nations is a predominantly political organization inevitably exposes the Secretariat to pressures from many quarters although “Governments have generally made great efforts to respect the terms of Article 100, paragraph 2, of the Charter . . .” He expressed the belief that it has been widely recognized that an objective, independent Secretariat is in the long run in the best interest of all Member States. It is, however, not at all certain that the values held in 1945 by the majority of the 51 states that signed the Charter at San Francisco are shared today by the majority of the 144 Member States of the United Nations. What is clear is the fact that the Secretariat is under considerable pressure from without and from within with regard to recruitment, to promotion, and in broader terms with respect to its international character and independence. The Secretariat suffers from considerable malaise, which is due to a wide spectrum of causes such as the decline—in the United States and in some other countries—in the centrality and in the prestige of the United Nations and in its ability to attract outstanding talent for service in the Secretariat. Among other causes are doubts about the relevance and the significance of the tasks assigned to the Secretariat as a whole and to a great many members of the staff; uncertainty about tenure, career prospects; and unhappiness about the increasing politicization of personnel procedures. Rightly or wrongly the staff is under the impression that permanent missions to the United Nations have an important influence on promotion procedures relating to their nationals in the Secretariat. This results in greater vulnerability to national influences. There is also concern about the filling of a growing percentage of senior posts through recruitment from outside, which has an adverse effect on the advancement prospects of the existing staff, and that nationality and other political considerations overshadow the principle of merit. Problems relating to the professional staff of the Secretariat are usually considered in political, administrative, and budgetary terms. The author feels that the time has come to discuss them in legal terms too, or, rather, in the light of the purposes and the requirements of the Charter. Indeed, given the political and social stresses to which the staff is exposed, it is imperative to focus on, to reinvigorate the role of law, and to develop proper procedures, counterbalances, safeguards, and due process. The object of this study is to make a contribution toward these ends. A few words about the scope of this study may be appropriate. It will focus on the professional and higher categories of staff financed under the regular (assessed) budget of the United Nations and working in the Secretariat of the United Nations in New York and in Geneva, the regional economic commissions, the United Nations Conference on Trade and Development, the United Nations Industrial Development Organization, and the United Nations Environment Programme. Th author hopes, however, that this study may also be of some relevance to the professional and higher categories of staff of other United Nations programmes and of the specialized agencies. The professional and higher categories of staff comprise the following: Under-Secretary-General (USG), Assistant-Secretary-General (ASG), Director (D-2), Principal Officer (D-1), Senior Officer (P-5), First Officer (P-4), Second Officer (P-3), Associate Officer (P-2), and Assistant Officer (P-1). In addition. The United Nations staff includes general services (secretarial, technical, and clerical staff) and other categories such as security service, field service, and manual workers with which this study is not directly concerned. The statistical data were obtained by the author from a number of sources in the Secretariat. They do not all refer to the same time and sometimes are based on differing definitions. The author has included such statistical date in this study only in order to indicate general phenomena and trends.

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  Equality and Preferential Treatment

  Thomas Nagel, Marshall Cohen, and Thomas Scanlon

  These essays, with one exception originally published in Philosophy & Public Affairs, consider the moral problems associated with improving the social and economic position of disadvantaged groups. If the situation of women and minorities improves so that their opportunities are equal to those of more favored groups, will they then be in a competitive position conducive to equal achievement? If not, can preferential hiring or preferential admission to educational institutions be justified? The contributors explore the complexities of this problem from several points of view. The discussions in Part I are more theoretical and concentrate on the application to this case of general considerations from ethical theory. The discussions in Part II also take up theoretical questions, but they start from specific problems about the constitutionality and the effectiveness of certain methods of achieving equality and counteracting discrimination. The two groups of essays demonstrate admirably the close connection between moral philosophy and questions of law and policy. The issues discussed include compensation, liability, victimization, the significance of group membership, the intrinsic importance of racial, sexual, or meritocratic criteria, and the overall effects of preferential policies.

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  The Moral Criticism of Law

  David A.J. Richards

  This book was conceived as an introduction to the philosophy of law, to be used, if the reader or teacher so wishes, in tandem with Joel Feinberg and Hyman Gross’s Philosophy of law (Dickenson Publishing Co., Inc., 1975). The issues discussed in this book accordingly were determined and the structure of the discussion shaped, by that fine and admirable anthology. Most importantly, this book shares the basic approach of the Feinberg-Gross anthology, focusing the philosophy of law on the analytic examination of concrete moral-legal problems of a serious and controversial nature. Each book, of course, stands on its own and can be read and understood independently of the other. Nonetheless, together, I believe, they represent a significant new approach to the relation of law, moral philosophy, and philosophical analysis in general. This burgeoning new discipline of law and philosophy is, in my opinion, one of the most promising recent developments in interdisciplinary legal studies. This volume and the Feinberg-Gross anthology are exploratory steps in an enterprise that I believe will in time produce significant contributions to our understanding of the life and practice of the law. In execution, this book is a concrete application of the conception of moral philosophy and law presented in John Rawls’s A Theory of Justice (Harvard University Press, 1971) and my own A Theory of Reasons for Action (Oxford University Press, 1971). Moral philosophy, of a quite abstract theoretical kind, is here put pragmatically to work as the center of the philosophical examination of law. The focus of this book specifically arises from my own recent efforts to bring moral philosophy and law together in a way that I hope is fruitful for both, namely, the philosophical analysis of moral values in constitutional law. Chapter 3’s discussion of obscenity law and free speech first appeared in more extended form in my “Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment” (123 University of Pennsylvania Law Review, 45, (1974)); the discussion of the constitutional right of privacy and sexual deviance is a preliminary sketch of arguments more extensively developed in my “Unnatural Acts and the Constitutional Right of Privacy: A Moral Theory” in 45 Fordham Law Review (no. 6, May 1977). Chapter 4’s examination of school financing is a redaction of my “Equal Opportunity and School Financing: Towards a Moral Theory of Constitutional Adjudication” (41 University of Chicago Law Review 32 (1973)). This book thus draws together my previous work and develops that work in the context of a larger theoretical framework. It was written in the midst of ongoing efforts to develop a comprehensive moral theory of constitutional values. It is important that the reader understand that the discussions in this work are exploratory in nature. I urge this caveat upon the reader’s attention not to escape my responsibility for the view here expressed, but to communicate my own very real sense that while they contain glimmers of some final truth in these matters, these views do not yet articulate that truth in a finished or final way. The comprehensive theory of moral values in constitutional law has yet to be written. . . . This book is intended to afford students and the general public an introduction to the philosophy of law. Accordingly, I try to present here much of the basic material with which any beginning student of the subject should become familiar. A glossary is supplied to clarify and define those terms unfamiliar to the beginning student in philosophy or law which are not sufficiently defined contextually. This book will not present a summary of established conclusions, as one might present in an introduction to organic chemistry or the like. No such established conclusions exist in the philosophy of law. Nor will this book merely summarize standard positions taken and typical arguments made by legal philosophers, although many of these will be discussed. Rather, I intend here both to introduce the reader to the subject matter of the philosophy of law and to do philosophy in this area. Thus, this work is an essay in the basic concerns of the philosophy of law, giving expression to my own views within the context of a general introduction to the subject. The book is structured in this way for reasons fundamental to the aims of philosophical reflection. Philosophy is essentially concerned not with the results of reflection, but this the process of reflection about fundamental conceptual questions in a precise and reasoned way. An introduction to a branch of philosophy should, therefore, not merely pass on information, but aim to stimulate the reader’s interest in and capacity to do more and better philosophical thinking about the subject matter in question. This aim is best accomplished, I believe, by doing philosophy in areas which cry for the illumination which this exciting and powerful intellectual activity may bring. Thus, in this book, the reader will encounter my own attempted answers to many of the fundamental questions of the philosophy of law, perceived in the concrete context of contemporary social controversy—obscenity, sexual deviance, school financing, sex-based discrimination, the elimination of responsibility, therapy versus punishment, the death penalty, and the like. The conclusions regarding these issues are hardly the final truth. In each case, the reasoning behind the conclusions must be carefully examined. This book will have accomplished its purpose not if the reader accepts its conclusions, but only if he or she comes to assess the conclusions in the light of independent, careful, and clear consideration of the underlying reasoning. The capacity for and appreciation of such reasoning is the human depth that we associate with the finest philosophical thought. The depth of such reasoning in the philosophy of law takes the form not only of a more fundamental theoretical understanding, but of an intellectual and moral courage that is remorselessly critical of existing institutions in the light of rationally defensible moral values. The introduction to such reasoning and the invitation to cultivate it are, in my judgment, the introduction to the philosophy of law.

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  Emerson, Haber, and Dorsen's Political and Civil Rights in the United States

  Norman Dorsen, Paul Bender, and Burt Neuborne

  This is the fourth edition of legal and other materials that are designed to be a comprehensive source book for lawyers facing civil liberties issues in their practice and a teaching text for students who are taking courses and seminars in the subject or doing research in it. The book traces its lineage to mimeographed teaching materials prepared at the Yale Law School by Professors Thomas Emerson and David Haber during the late 1940s and to a first edition they published in 1952. A second edition appeared in 1958 and a third, which Professor Norman Dorsen co-authored, in 1967. On the theory that three generations of a book were enough for them, Professors Emerson and Haber (the latter now at Rutgers Law School at Newark) have handed over the responsibility for producing the fourth edition to us. In accepting the responsibility we salute the able and dedicated work of our predecessors. Since the third edition appeared, the scope and volume of cases and secondary material in the field of political and civil rights have increased enormously. A major concession this has drawn from us is the decision to prepare the two volumes of the book consecutively rather than simultaneously, as in earlier editions. Volume II, which will cover all aspects of discrimination and equal protection of the laws, is scheduled for publication in 1977. As with the third edition, there will be biennial supplements to each volume which can be obtained from the publisher or at law school bookstores. The extensive recent developments have also required a fundamental reworking of the book. There are six completely new chapters. Chapter XVII, The Constitutional Litigation Process, is designed to be a uniquely valuable set of materials for the practicing civil liberties lawyer as well as the inquiring student. Also new are Chapter III (Government Secrecy and the Public’s Right to Know); Chapter V (Administration of Justice); Chapter VIII (Commercial Speech); Chapter IX (Access to and Regulation of the Media): and Chapter XVI (The Rights of Special Groups). In addition, a number of other chapters have been substantially rewritten to reflect major changes in the law. These are Chapter II (National Security); Chapter VI (Obscenity); Chapter VII (Defamation); Chapter XII (Privacy); Chapter XIII (The Right of Franchise); and Chapter XV (Rights Within Private Associations). There are also new sections within each of the other chapters. As in the third edition, two different versions of the book are being published—a lawyer’s edition and a law school edition. The latter omits parts of chapters that are of importance to practicing lawyers but which seem to us less likely to relate to course or seminar material. Materials are again organized, except for Chapter XVII, more in terms of specific subject-matter areas than theoretical legal doctrine. Thus, concepts such as clear and present danger and the right of privacy run though a number of chapters. We use this organization to emphasize the concrete issues at stake and to bring to bear on those issues all relevant considerations, whether from legal or other sources. In order to facilitate use of the book along doctrinal lines, however, we have included in Chapter I a section, entitled Judicial Standards and Techniques in the Resolution of First Amendment Cases, which outlines the Supreme Court’s main lines of analysis and keys in to the remainder of the book. We have also tried to make the index and table of contents as complete as possible, and to employ cross-references generously throughout the text. Although we have retained some footnotes attached to extracts that are reprinted, we have omitted many others. Except where we have wished to call an omitted footnote to the reader’s attention, we have not indicated the omissions. Footnotes added by the editors are designated by letters rather than numbers. The book include all relevant Supreme Court opinions through the end of the 1974-1975 Term, which ended on June 30, 1975. In a few places, particularly in Chapter II, there are citations to Notes and References contained in the third edition of this book that are no longer topical but may be of interest to certain lawyers, scholars, and students. The references contained in the lawyer’s edition are intended to be comprehensive, but the burgeoning materials have required some selectivity. Extensive bibliographical references are omitted from the law school edition. While this is a joint enterprise that has benefited from much discussion among us on all aspects of the book, primary responsibility for chapters was allotted as follows: Dorsen: Chapters II, III, V, IX, XIV, and XV; Bender: Chapter VI, VII, VIII, XI, XII, and XVI; Neuborne: Chapters IV, XIII, and XVII. Dorsen and Neuborne shared the responsibility for Chapters I and X.

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  Emerson, Haber, and Dorsen's Political and Civil Rights in the United States

  Norman Dorsen, Paul Bender, and Burt Neuborne

  This is the fourth edition of legal and other materials that are designed to be a comprehensive source book for lawyers facing civil liberties issues in their practice and a teaching text for students who are taking courses and seminars in the subject or doing research in it. The book traces its lineage to mimeographed teaching materials prepared at the Yale Law School by Professors Thomas Emerson and David Haber during the late 1940s and to a first edition they published in 1952. A second edition appeared in 1958 and a third, which Professor Norman Dorsen co-authored, in 1967. On the theory that three generations of a book were enough for them, Professors Emerson and Haber (the latter now at Rutgers Law School at Newark) have handed over the responsibility for producing the fourth edition to us. In accepting the responsibility we salute the able and dedicated work of our predecessors. Since the third edition appeared, the scope and volume of cases and secondary material in the field of political and civil rights have increased enormously. A major concession this has drawn from us is the decision to prepare the two volumes of the book consecutively rather than simultaneously, as in earlier editions. Volume II, which will cover all aspects of discrimination and equal protection of the laws, is scheduled for publication in 1977. As with the third edition, there will be biennial supplements to each volume which can be obtained from the publisher or at law school bookstores. The extensive recent developments have also required a fundamental reworking of the book. There are six completely new chapters. Chapter XVII, The Constitutional Litigation Process, is designed to be a uniquely valuable set of materials for the practicing civil liberties lawyer as well as the inquiring student. Also new are Chapter III (Government Secrecy and the Public’s Right to Know); Chapter V (Administration of Justice); Chapter VIII (Commercial Speech); Chapter IX (Access to and Regulation of the Media): and Chapter XVI (The Rights of Special Groups). In addition, a number of other chapters have been substantially rewritten to reflect major changes in the law. These are Chapter II (National Security); Chapter VI (Obscenity); Chapter VII (Defamation); Chapter XII (Privacy); Chapter XIII (The Right of Franchise); and Chapter XV (Rights Within Private Associations). There are also new sections within each of the other chapters. As in the third edition, two different versions of the book are being published—a lawyer’s edition and a law school edition. The latter omits parts of chapters that are of importance to practicing lawyers but which seem to us less likely to relate to course or seminar material. Materials are again organized, except for Chapter XVII, more in terms of specific subject-matter areas than theoretical legal doctrine. Thus, concepts such as clear and present danger and the right of privacy run though a number of chapters. We use this organization to emphasize the concrete issues at stake and to bring to bear on those issues all relevant considerations, whether from legal or other sources. In order to facilitate use of the book along doctrinal lines, however, we have included in Chapter I a section, entitled Judicial Standards and Techniques in the Resolution of First Amendment Cases, which outlines the Supreme Court’s main lines of analysis and keys in to the remainder of the book. We have also tried to make the index and table of contents as complete as possible, and to employ cross-references generously throughout the text. Although we have retained some footnotes attached to extracts that are reprinted, we have omitted many others. Except where we have wished to call an omitted footnote to the reader’s attention, we have not indicated the omissions. Footnotes added by the editors are designated by letters rather than numbers. The book include all relevant Supreme Court opinions through the end of the 1974-1975 Term, which ended on June 30, 1975. In a few places, particularly in Chapter II, there are citations to Notes and References contained in the third edition of this book that are no longer topical but may be of interest to certain lawyers, scholars, and students. The references contained in the lawyer’s edition are intended to be comprehensive, but the burgeoning materials have required some selectivity. Extensive bibliographical references are omitted from the law school edition. While this is a joint enterprise that has benefited from much discussion among us on all aspects of the book, primary responsibility for chapters was allotted as follows: Dorsen: Chapters II, III, V, IX, XIV, and XV; Bender: Chapter VI, VII, VIII, XI, XII, and XVI; Neuborne: Chapters IV, XIII, and XVII. Dorsen and Neuborne shared the responsibility for Chapters I and X.

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  Blue Cross: What Went Wrong?

  Sylvia A. Law and The Health Law Project, University of Pennsylvania

  For the paperbound edition, Ms. Law reports on significant new developments since the book was first published in June 1974. She sees evidence of some shift in the traditionally close relations between Blue Cross and the hospitals, particularly where state regulatory agencies and consumers have tried to control hospital costs. By and large, however, the crisis in health care delivery continues, and the role of Blue Cross remains, in her view, questionable from the standpoint of public policy.

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  Investment Insurance in International Law

  Theodor Meron

  The practice of insuring investments abroad against the political risks of expropriation, inconvertibility, and war, revolution and insurrections, has evolved as an answer to a number of relatively new problems: the decline of the traditional standards of international law governing the protection of property of foreigners and diplomatic protection of citizens abroad; the inability to effectively protect investments abroad by resorting to the classical principles of the law of responsibility of States for injuries to aliens; and the continuing need for a glow of investments across international boundaries and especially from the developed to the less developed countries. This type of insurance has been one of the principal contemporary instruments and techniques devised in response to the new challenge, i.e. how to provide adequate protections to investors in foreign countries. The present study will consider some major aspects of the insurance of investments abroad, especially from the view pint of the international lawyer. Insurance of commercial risks, including insurance against inflation, will not be considered as it does not normally raise questions of international law. What makes insurance of investments particularly interesting to the international lawyer is the fact that the insurer is often a branch of the Government of the investor or a government corporation. Thus, the burden of compensating the investor often falls on the public treasury of his state. Given the operation of the principle of subrogation, interesting questions arise concerning the role of the insuring agency (the State) as a claimant vis-à-vis the country where the investment was made (the host country). In the course of this study, special attention will be given to the United States system of insuring investments abroad under the Overseas Private Investment Corporation (O.P.I.C.), not only because this is the largest operation of its kind, but also because its vast experience in insurance and in claims offers a particularly wide scope for study and analysis. The work of O.P.I.C. is also well documented and is more easily accessible to scholars. Investment insurance in international law has not been extensively treated in recent legal literature and while several leaned papers on the subject are referred to in the course of this study, the author has not deemed it necessary to prepare a comprehensive bibliography. This study is based primarily on material obtained from O.P.I.C., similar agencies in Canada and in the United Kingdom, the International Bank for Reconstructions and Development (I.B.R.D.) and the Organisation for Economic Co-operation and Development (OECD), on legislation and on congressional documents. We have not attempted to deal with the practice of all the counties which have agencies dealing with the insurance of investments abroad and not even with the practice of all the countries belonging to the OECD. The author hopes that by discussing in depth the United States practice and, in lesser detail, the Canadian and United Kingdom practice, and by presenting the theoretical and general background, he has provided the tools for the study of these and related subjects by scholars and practitioners alike. The abundant documentation contained in this volume has been collected and reproduced with the object of facilitating the task of the scholar and the practitioner by providing him with documents which often are not available in legal libraries. At the same time when this study was under preparation, major changes were taking place on the international investment scene. While in the past investments have flowed almost exclusively from the developed to the developing countries, or from one developed country to another, today, owing primarily to the availability of surplus oil revenues, there has been an increasing flow of petrodollars from developing countries to developed countries, channelled not only into portfolio investment, but also into direct equity investments. These developments have given rise in the United States, which has traditionally maintained an open-door policy towards foreign investments in most areas of economic activity, to various proposals concerning the control of foreign investments, but the petrodollar exporting countries have so far not found it necessary to set up machinery for insuring investments abroad. This may be related to the fact that the petrodollar surpluses are often owned by the State and its agencies, rather than by private investors. Neither has there been a move towards the conclusion of investment guaranty agreements as a means of protecting the investments of the petrodollar exporting countries in the developed countries. The attitude of these host countries towards private investors has apparently been considered as providing sufficient safeguards without having to resort to additional means. Thus, even the agreement concluded by the United States of America and Saudi Arabia on February 27, 1975 on Guaranteed Private Investment concerns only O.P.I.C. insured projects in Saudi Arabia, and not Saudi investments in the United States (the joint communiqué of February 27, 1975 on the first session of the U.S.-Saudi Arabian Joint Commission on Economic Cooperation spoke, however, of consultations regarding significant undertaking in each other’s economies). It will be interesting to see whether, as the volume of petrodollar investments in the developed countries increases, demand will arise to further protect them by means of international agreements and by insurance programmes.

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  The Rights of Candidates and Voters: The Basic ACLU Guide for Voters and Candidates

  Burt Neuborne and Arthur Eisenberg

  Is it constitutional to make a candidate sign a “loyalty oath?” Can a candidate be required to pay a fee to run for office? Here, for the first time, is a concise guide to the rights of candidates at every level of office from municipal school boards to the Presidency. Drawing examples from our present legal system—including actual court cases and post-Watergate legislation—the authors examine residency requirements, age and property qualifications, fees, petitions of nomination, loyalty oaths, party affiliation and party-crossing, campaign contributions and financing, campaign literature and practices, and the sometimes fine lines of difference between what is and is not legal for today’s office-seeker. Also featured is an extensive examination of the controversial Federal Elections Act of 1974 and the challenges that have been raised against it. In addition to the candidates’ rights, this fundamental guide explores the rulings that affect the rights of voters, including residency requirements, literacy tests, mail registration, and redistricting. In an area that has witnessed sweeping changes in the past decade, THE RIGHTS OF CANDIDATES AND VOTERS provides clear, concise, and completely up-to-date information that will prove invaluable to everyone interested in the vital machinery of the democratic process.

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  Econometric Models and Economic Forecasts

  Robert S. Pindyck and Daniel L. Rubinfeld

  Textbook on econometric models and economic forecasts - comprises an introduction to the science and art of building and applying economic models, focussing on models of processes occurring in business economics and the social sciences, describes the range of models (incl. Time series, single-equation regression and multi-equation simulation models), etc., and includes solutions to selected problems. Graphs and statistical tables.

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  Sum and Substance of Civil Procedure

  Jack H. Friedenthal and Arthur R. Miller

  Prior edition of Sum and Substance of Civil Procedure.

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  Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830

  William E. Nelson

  When I began my research for this book several years ago, I hypothesized that the American Revolution was an event of such transcendent importance that it must have affected the course of American law. To text my hypothesis I decided to study the legal system of one American states, Massachusetts, for the fifteen-year period before the coming of independence to observe both the short-run and the long-run impact of the Revolution. My research disclosed that the law of Massachusetts did change substantially in the seventy years between 1760 and 1830 in a variety of ways. The various changes in the law, I became convinced, also reflected more basic changes in American thought and society over the same seventy-year period. Although the evidence was not always as clear of overwhelming as I might have liked, I tried to interpret the historical data before me so as to portray my sense of the social and intellectual change that must have accompanied postrevolutionary legal change. Even for those who disagree with my interpretations, I hope that his book can serve and independent function of making available to legal and historical scholars the vast quantity of source material heretofore buried in courthouse files and archives throughout the Commonwealth of Massachusetts. In my research for this study I sought to read not only all published statutory and judicial material for Massachusetts between 1760 and 1830 but also all available manuscript material, including unpublished judicial opinions, lawyers’ notes, and, most commonly, records of pleadings, judgments, and other papers incorporated into official court files. Much of the manuscript material, especially that contained in the court files, is extremely repetitive and is of little interest to the legal historian. Some of the material, however, is not repetitive. I have tried to cite all the nonrepetitive material either in the text or in the notes and to construct and index that will guide a reader to his topic of interest. I hope that these efforts will enable future students of particular subjects in the legal history of Massachusetts to pinpoint precise sources without having to undertake the same systematic search of all the sources that I did.

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  People's China and International Law: A Documentary Study

  Jerome A. Cohen and Hungdah Chiu

  Jerome Alan Cohen and Hungdah Chiu have presented in a comprehensive form the views of the People’s Republic of China on all the major questions of public international law. The material chosen includes official acts and statements from every level of the Chinese government, editorials and major articles from the People’s Daily, dispatches of the New China News Agency and other government media, the writings of Chinese scholars, and the speeches of China’s leaders. In an extensive introduction, Professors Cohen and Chiu discuss the experience of previous Chinese governments with international law, and the relationship of China’s domestic public order and its foreign policy to its views of international law.

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  Civil Procedure: Cases and Materials

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

  Prior edition of Civil Procedure: Cases and Materials.

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  Pork Barrel Politics: Rivers and Harbors Legislation, 1947-1968

  John A. Ferejohn

  In the late summer or early fall, the Conference Report on the Appropriations Bill for Public Works is considered on the floors of the House and Senate. This bill contains the annual appropriations for the Bureau of Reclamation, the Atomic Energy Commission, the various power administrations and the river basin authorities, as well as the Army Corps of Engineers’ civil construction program. In every recent year the Corps of Engineers’ portion of the bill has contained funds for between 300 and 400 projects spread over perhaps 45 of the 50 states. Every year, too, the House and Senate between them have usually managed to add new Corps of Engineers projects to the public works section of the President’s budget (which has lately totaled around one billion dollars), increasing it by about half a billion dollars. The Public Works Appropriations Bills are criticized as “pork barrel legislation” by some and praised as “development bills” by others, but both groups appreciate the fact that these bills are made to a great extent in the Congress, principally in the various committees that share jurisdiction over the nation’s rivers, beaches, lakes, and harbors, and that over the years they can fairly be said to constitute the policy of the federal government in the area of water resources development exclusive of ware pollution legislation. Each year in the hearing before the appropriation committees and in the floor debates, the senior members of what might be called the water committees—men like Senators Ellender, Cooper, Randolph, Stennis, and Magnuson, and Representatives Kirwan and Evins—congratulate one another on the fine development bill they have produced and praise the worthy flood-control and navigation projects that will soon be built in Louisiana, Kentucky, West Virginia, Mississippi, Washington, Ohio, and Tennessee. The casual observer sees that, yes, the Red River (in Louisiana) has been programmed by the Senate committee with the concurrence of Congress to receive 100 million dollars over the next few years, and that there are ten to 15 projects receiving federal funds in Kentucky as well as large projects in Ohio and Washington. Members of the presidency, congressional opponents, and even some congressional supporters have referred to this bill privately as pork barrel, ad product of logrolling, a “Christmas tree” bill, and a boondoggle for certain powerful members of both houses. Yet each year a bill that looks very much like the one that passed the year before appears in the Congress and is passed without much general debate or comment on its propriety, though with considerable discussion of individual projects. The result is that more cement is poured, more rivers are dammed, and more streams are straightened. And everyone knows that it will all be about the same next year. Is this what really happens? Are a few powerful senators and congressmen actually able to treat the public purse as a development fund for their states or districts? After all, unless these people constitute the majority in the House and Senate, they can be prevented from regularly enacting such legislation by a majority of either chamber. Yet the process continues unchecked in the public works area. This study is an investigation of why such a system exists and how it functions in the federal government.

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  None of Your Business: Government Secrecy in America

  Stephen Gillers and Norman Dorsen

  Bacon said, “All governments are obscure and invisible.” His dictum reflects a long tradition of government secrecy, here and abroad. It stands to reason that a person disposing of weighty and controversial issues gets through the day more easily when his decisions are shrouded from view, particularly from the eyes of those most affected by them. This is true whether the decision-maker is a corporate executive or union leader, and academic administrator or government official. But government officials conduct public business. Secrecy and deviousness, often unjustified in other contexts, are intolerable when national interests of high importance are involved. Although the Constitution does not expressly guarantee American citizens a right to know what their government is doing, the Supreme Court on several occasions has recognized the “right to know” as a general proposition. For example, it has stated that “the Constitution protects the right to receive information and ideas” and that, as far as radio and tv are concerned, “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” But government secrecy and public access to information are not primarily legal questions. They are rather political issues of basic importance to democratic government. They were recognized from the beginning of the nation. Henry Steele Commager, the noted historian, has written: “The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.” Anthony Lewis points out in his Introduction that Vietnam and Watergate are the twin events—he rightly calls them earthquakes—which have focused unprecedented attention on the misuse of executive power and on the secrecy which facilitated these abuses. We have since endured a third earthquake—the disclosure of the illegal financial dealing of Vice President Spiro Agnew, leading to his resignation. And a fourth earthquake may be coming—impeachment of the President. The Vietnam misadventure alone was sufficient to impel the Committee for Public Justice and the Arthur Garfield Hayes Civil Liberties Program to convene a conference of historians, lawyers, journalists, scientists and public officials to discuss the dangers and limits of government secrecy. Watergate broke while the conference was being planned, and the Agnew conviction and resignation came afterward. Neither the organizers of the conference nor the editors of this volume believe that all government business must take place in a fish bowl. There are situations in which secrecy is permissible, even desirable. Thus, government should be able to protect certain military and diplomatic information of potential value to enemies; to safeguard the process of decision-making by protecting confidences in order to encourage frank discussion; and to assure that private information about people is not widely disseminated. The precise boundaries of these and perhaps other exceptions to the general requirement of open government are an important subject of this book. Not all the participants agree on what these boundaries should be. But we should candidly state that the perception of public policy shared by man of the contributors to this volume leads them to favor open government and to define the exceptions narrowly. They are likely to agree, in other word, with the premise of the House Committee on Government Operations, which approved the Freedom of Information Act in 1966: “A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a truism needs repeating. . . .”

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  Blue Cross: What Went Wrong?

  Sylvia A. Law and The Health Law Project, University of Pennsylvania

  This book is a collective effort of the Health Law Project of the University of Pennsylvania. The Project began in the fall of 1970 with a grant from OEO to pay the salaries of four and a half lawyers, a community organizer, a sociologist, a librarian, secretaries, and several students. Our purpose has been to gain an understanding of how health care is delivered and financed in America and to figure out ways in which consumers can have a larger bice in determining the nature of the health services they receive. In the three years of its existence the Project has produced scholarly analyses of major aspects of health services delivery; some examples are studies of emergency room services, a report on health care and conditions in Pennsylvania’s prisons, and a study of class differences in the provision of hospital care. We have prepared teaching materials for use in laws schools to train lawyers to represent health consumers and have encouraged the development of such training. We have done original empirical research. We have developed models for organizing consumers and providing advocacy services by doing such work and analyzing and disseminating the knowledge that we gained. In the past we have gone to court and to state and federal agencies to advocate changes that seemed sensible and legally required. In all of this we have tried to work collectively, with students, lawyers, and other professional and lay people (from members of our Board to member of our secretarial staff) making judgments as to what work should have priority, evaluating work that is in process, encouraging and supporting one another. We have also tried to combine scholarly detachment with the definite point of view that social institutions should be made accountable to the people who use and finance their services.

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  The Rights and Wrongs of Abortion

  Thomas Nagel, Marshall Cohen, and Thomas Scanlon

  During its first two years of publication, Philosophy & Public Affairs contributed to the public debate on abortion a set of remarkable and brilliant articles which examine the basic philosophical issues posed by this controversial subject: whether the fetus is a person, whether it has a right to life, whether a woman has a right to decide what happens in and to her body, whether there is an ethical connection between abortion and infanticide, whether there is any point after conception where it is possible to draw the line beyond which killing is impermissible. These five essays, together here for the first time in a single volume, offer radically differing points of view; they provide the best sustained discussion of these philosophical issues available anywhere. Contents: Judith Jarvis Thomson, “A Defense of Abortion”; Roger Wertheimer, “Understanding the Abortion Argument”; Michael Tooley, “Abortion and Infanticide”; John Finnis, “The Rights and Wrongs of Abortion”; and Judith Jarvis Thomson, “Rights and Deaths.”

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  War and Moral Responsibility

  Thomas Nagel, Marshall Cohen, and Thomas Scanlon

  This remarkably rich collection of articles focuses on moral questions about war. The essays, originally published in Philosophy & Public Affairs, cover a wide range of topics from several points of view by writers from the fields of political science, philosophy, and law. The discussion of war and moral responsibility falls into three general categories: problems of political and military choice, problems about the relation of an individual to the actions of his government, and more abstract ethical questions as well. The first category includes questions about the ethical and legal aspects of war crimes and the laws of war; about the source of moral restrictions on military methods or goals; and about differences in suitability of conduct which may depend on differences in the nature of the opponent. The second category includes questions about the conditions for responsibility of individual soldiers and civilian officials for war crimes, and about the proper attitude of a government toward potential conscripts who reject its military policies. The third category includes disputes between absolutist, deontological, and utilitarian ethical theories, and deals with questions about the existence of insoluble moral dilemmas.

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  Philosophy, Morality, and International Affairs: Essays Edited for the Society for Philosophy and Public Affairs

  Thomas Nagel, Virginia Held, and Sidney Morgenbesser

  The Society for Philosophy and Public Affairs was founded in 1969 as the natural expression of a rising interest in questions of public policy among students and teachers of philosophy. This interest was due partly to a growing conviction that the connections between abstract and practical questions could be effectively drawn, and that the failure to do so could be unfortunate for the pursuit of either interest. The task was a double one: to overcome the detachment of philosophy from concrete social issues and to challenge the widespread complacency about American institutions and practices. The formation of the Society was also due to the concern, outrage, and sense of helplessness aroused in varying degrees among philosophers by the Vietnam War. Philosophy seemed ill-equipped to handle questions raised by the war. Like many Americans, philosophers have tended to react profoundly to that event, and have felt impelled to speak about real circumstances and real policies in order to decide what to believe and how to act. The Society for Philosophy and Public Affairs, in its group meetings and in symposia held at sessions of the American Philosophical Association, has provided a forum for discussions arising from these concerns. In 1972, the New York Group of the Society published a collection of essays entitled Philosophy and Political Action under the editorship of Virginia Held, Kai Nielsen, and Charles Parsons. It was drawn together from papers presented at meetings of the group or written by members and associates. In view of the response to the publication of this volume, the Executive Committee of the national Society issued a call for papers dealing specifically with philosophy and international affairs. It subsequently requested the undersigned editors to bring out the present volume, which draws on the work of members throughout the United States and Canada. All of the essays included here were written expressly for this volume. Some derive from papers originally delivered at meetings of the Society (such as the 1971 Symposium on War Crimes and Moral Responsibility). All of the essays presented here attempt in different ways to reduce the moral and intellectual confusion that so often surrounds discussions of international conflict and international relations. When rationality and decency are absent, as they frequently are in international affairs, the rhetoric of justification may be present, but this will usually involve serious abuses of language and thought. In the attempt by all parties to corner the market in expressions of condemnation and exculpation, terms like “genocide,” “imperialism,” “self-determination,” “freedom,” “legitimacy,” “legality,” “honor,” “justice”—even “war” and “peace”—are bent and distorted. Offenses against language are offenses against thought and defenses against the uncomfortable costs of knowing what one is doing, having to acknowledge it to oneself, and knowing that others know as well. For philosophers this distortion of language is a natural target and the careful dissection and clarification of focal concepts occupy many of the contributors to this volume. But most of the essays do not limit themselves to attacking confusion brought about by the desire to manipulate or by self-deception. Some attempt to analyze terms and theories which have played important roles in social philosophy, legal discussion, and the social sciences. Others make specific proposals for international arrangements and institutions and suggest avenues for further empirical investigations. They are intended as reasoned challenges to widely held political beliefs and are written not merely to help us understand the political world but to suggest changes in it. It is a sad commentary on our situation that some of the essays have to defend the theses that morality and justice ought to play a role in international affairs and that prudence and national self-interest (no matter how defined) ought not to be the ultimate arbiters. It may have been blissful to have been young and philosophical at the dawn of the French Revolution. It is painful to write about international affairs in America now. The current situation reminds us that feelings of international fellowship are rare, that soldiers are willing to kill while their governments deceive, and that myopic self-regard and irrational pride and hatred have an even freer rein in international affairs than they do within national boundaries. The causal relevance of reason, to say nothing of philosophy, seems slight in international affairs. It seems pointless to detect three nonsequiturs and four evasions per dropped megaton. But the efficacy of reasoned criticism, even if slight, cannot be neglected. Rationalization and faulty moral argument, as well as the distortion of language, play a supportive role in the execution of policies even if they do not express the true motives for those policies. People wish to have a satisfactory conception of what they are doing, and if it is denied them the cost of persisting increases. So while it is often impossible to argue people out of a political commitment by showing that it rests on a mistake, it may be possible to undermine their comfort and leave them with fewer resources for representing themselves acceptably. Of course it is not only international terror and violence that are being objected to in these essays. There may be a decrease of violence and also a continuation of unjust international arrangements if the powerful nations impose a peace that is satisfactory to themselves alone. But unjust arrangements induce and possibly sometimes justify violence; hence the quest for peace is at one with the quest for justice. And the delineation of alternative courses of action, the suggestion of more reasonable forms of international behavior, must precede any conscious efforts to lower the level of international violence and horror. These essays, like many of the acts of protest against the war in Southeast Asia, are animated by the conviction that morality has a place in national conduct and international affairs, and they are guided by the experience that protest is not always futile. When people abdicate responsibility to those individuals and institutions with superior power, the door is open to terror and brutality. If, on the other hand, people commit themselves to seek sounder international arrangements, if they are encouraged to rely upon their own considered judgments and to act upon them, then just possibly we or our descendants may, after all, see the development of a humane and stable international order.

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  Labor Relations Law in the Public Sector: Cases and Materials

  Russell A. Smith, Harry T. Edwards, and R. Theodore Clark Jr.

  Several premises underlie the preparation and offering of the materials contained in this volume. The first is that public sector “unionization” and collective bargaining represent the most important development in “labor relations” since the post-Wagner Act period of the 1930s and 1940s. This significance derives both from the sheer magnitude and success of organizing efforts in the public sector and from its major impacts on the management of governmental affairs and public employees at all levels of government—federal, state and local. During the past decade, dramatic changes have occurred in the body of relevant public sector law, as was true in the private sector in the earlier era. These changes have both contributed to and resulted from public sector unionization. While labor relations law in the public sector has naturally drawn heavily on private sector precepts and models, it has also involved major departures, in response to numerous problems peculiar to the public sector. These are not only substantive. In contrast with the preemptive “federalization” in the private sector, the most important body of public sector labor relations law is state and local. Thus, there are wide variations, resting on differing judgmental evaluations and determinations of public policy. Indeed, the states have proven to be “laboratories” for socio-political experimentation in the development of the law in this area. In our judgment, a law school curriculum is incomplete which does not afford students the opportunity to examine in some depth the parameters, important variations and problems of public policy embodied in this area of the law. The traditional law school Labor Law curriculum has given primary attention to the private sector, and the typical Labor Law “casebook” reflects this fact. It is quite apparent now, however, that adequate treatment of both private and public sectors is not feasible in a single volume. Hence a basic objective has been to provide a separate set of teaching materials use in law school and in other educational contexts. We have also sought to achieve a kind of approach and treatment of the relevant materials which will be of interest and value to those directly concerned on a working basis with public sector labor relations (lawyers, administrators, officials of labor organizations and public employers). We have not sought to treat many of the obviously important problems relating to collective bargaining provisions of the numerous practical aspects of labor relations, except to the extent these matters are affected or influenced by the applicable legal structure of rule. In many of these areas, the law does have significant relevance. But it has not seemed to us to be feasible to attempt to deal fully, in a single volume, with the process of collective bargaining or with the more practical aspects of administering labor agreements. In dealing with collective bargaining, therefore, we concentrate on the legal framework and not on specific techniques of collective negotiations or contract administration. Although the body of “law” in the public sector is now substantial, it is still in the formative stage. As a consequence, we have sought to supplement the judicial decisions reported herein with numerous excerpts from other publications and with substantial text and note material written by the editors. It is our hope that this textual material, much of which has been written by some of the outstanding scholars and practitioners in the field, will raise significant policy questions for consideration in connection with the proper course of the development of labor relations law in the public sector.

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  Investigating the FBI

  Stephen Gillers and Pat Watters

  Investigating the FBI I based on a conference on the FBI held at Princeton University, October 29 and 30, 1971, sponsored by the Committee for Public Justice and the Woodrow Wilson School of Public and International Affairs. This book contains edited versions of the papers presented at the conference and significant portions of the dialogue and panel discussions that occurred during the thirteen hours of conference time. The idea of a conference on the FBI was suggested by Professor H. H. Wilson of Princeton’s Politics Department, writing in the February 8, 1971, issue of The Nation. He communicated with Professor Norman Dorsen of the New York University Law School, a member of the Executive Council of the Committee for Public Justice (and now its Chairman). From there, the idea grew rapidly. In the following months, committee members and staff members of the Princeton faculty and others worked to bring some fifty lawyers, scholars, journalists and former government officials together for as thorough a study of the FBI as private citizens could hope to undertake. This book is one result of that effort.

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  The Rights of the Poor

  Sylvia A. Law and Burt Neuborne

  This book was written for the poor, and for those working with them. I have tried to keep the language simple, without being simple-minded. This is always a difficult job, especially for someone with the benefit of legal training. A poor person needs concrete information to obtain the subsistence benefits to hold life together. He or she often also needs help in dealing with the system. The information which this book provides is often not very concrete, because conditions and rules vary so much from place to place, and the rules change from day to day. Help from a friend, a welfare-rights worker, a community organizer, or lawyer must be found at the local level. At best this book is just a starting place for a poor person struggling to get the things which the law guarantees. Richard Nixon’s second term of office has brought important restrictions in the rights of the poor. While Watergate captures national attention and headlines, the Department of Health, Education and Welfare quietly abolishes rights and protections which have been afforded the poor by federal regulation since the New Deal. Repression and cutbacks at the state and local levels are perhaps even more serious. There is disturbing irony in the commercial publication and sale of a book for the poor. If this is to be of any use to the people for whom it is intended, it will be because more affluent people and organizations buy copies and make them available without charge to poor people. . . . Who are the poor in America? Most Americans are poor at one time or another during their lives. Many Americans are poor all of their lives. The United States Department of Labor estimated that in 1970 an urban family of four needs $10,664 to live at a moderate level. At the same time the mean income of black men was $6,773, of white women it was $5,965, and of black women it was $4,943. Thus most American families are officially poor. If you are a woman, or old, or black, the likelihood of being poor is even greater. Poor people are the real majority. What special rights do poor people have? Poor people have the right to receive welfare, free medical care, food stamps, and free or low-cost school lunches. These rights are discussed in this book. In addition, poor people have rights to: public housing, free legal services; go to court without paying court fees in some cases; day care and other social services; unemployment compensation; tuition reductions or scholarships; school breakfasts; and special food programs for the elderly. These rights are not discussed in this book because there is not enough space to talk about all of the rights of all of the poor. Are these legal rights? Yes. All the rights discussed in this book are legal rights. If the department of welfare fails to give you the benefits to which you are entitled, within the required time limits, they are breaking the law. Welfare, free medical care, food stamps, and free school lunches are not charity. They are the legal rights of people who meet the qualifications for them. Every American has the right to fair treatment from the government. You have the right to apply for any benefit, to be informed of the law and be treated in accordance with the written rules and regulations governing the administration of benefits, and to appeal any unfavorable decision made by the administrators. How can people get their rights? There are several organizations throughout the country that help poor people get their rights. The most important of these are organizations made up of poor people themselves. These welfare rights and tenant organizations provide information, help people apply for aid, refer them to lawyers, and put people with similar problems in touch with one another. . . .

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  Cops and Rebels: A Study of Provocation

  Paul G. Chevigny

  I did not read the newspapers on Sunday, August 17, 1969. If I had, I would have found that two people I knew and had once represented in criminal misdemeanor cases, Alfred Cain, Jr., and Ricardo De Leon, had been arrested the day before while driving off the West Side Highway with two other people whom I did not know, Wilbert Thomas and Jerome West. They were said to be members of the Black Panther Party, and it was claimed that they had been caught just in time to prevent an act of political banditry against the New Dunston Hotel in Harlem. They were charged with extremely serious crimes, including attempted murder of a policeman. Even if I had read the newspapers that Sunday, I would not have had any idea that I would become involved in the case. I first began to think about writing this book in the midst of the criminal conspiracy case which came out of that arrest and is at the heart of this book. Because I had known two of the defendants before, my initial purpose was to trace the way these men came to political radicalism and then into conflict with the law. I knew I could do no more than sketch those origins for Ricardo De Leon, because I was only slightly acquainted with him; but the life of Alfred Cain, Jr., who was my client, I thought I could follow more closely. The first part of this book in concerned with the lives of Alfred and his brother Anthony, as young black men in Brooklyn. I had defended them in a criminal case, minor by the standards of the criminal courts but major in their lives. I was prepared to describe this, but I wanted to go to them and their family and find out what other influences had shaped them. In January 1971, after the trials of the conspiracy case were over, I drove to the Cain home in the Bushwick district of Brooklyn with a tape recorder to transcribe memories and opinions from the Cain brothers and their parents. I heard not only about the cases I had worked on, but about schools, the police, racism, and military service. The Cain brothers, like Ricardo De Leon and Jerome West, were not famous men. They were not national leader of the Black Panther Party, and the first part of the book thus traces the background and views of men in the street who adhered to the Black Panther Party. This is not to say that the people in this book are “ordinary,” as people; they are not. But it is important to know how rank-and-file Black Panthers came into the party, how they can by their convictions, and how they defend them. Other people who knew all the principals in the conspiracy case appear here as well: one of those interviewed was indicted separately from Cain, De Leon, and West, in a related case. While the narrative of any one of the principals, taken by itself, may not clearly reveal his character, all the people in the book reflect and comment upon one another. All the narratives taken together make a portrait, I believe, of the livers of young black radicals, and throw some light on what there was in the family, in the state, and in recent history which led them to their position. A tragic sense of life is possible for some of these men, as it is for every black man who chooses to resist his condition: they recognize the odds against them from the state, the risks they must take, and they take those risks because they see no alternative. While Part One is largely a personal and political record, through narrative, trial transcripts, and the ideas of contemporaries and predecessors, Part Two is in a more public voice, being an account, chiefly through trial records, of the conspiracy trials of Cain, De Leon, and West. At its simplest level, Part Two is a detailed study of the jury trial at work in a political case. The words of Part One will not be forgotten by the reader, however, just as the layers never forgot what they learned about the defendants and witnesses outside the courtroom; that knowledge will bring special light to some otherwise veiled points in the testimony at the trial. The conspiracy case was the crossroads between the livers of the three defendants and Wilbert Thomas, the black undercover policeman who joined the Black Panther Party in February 1969 and ultimately testified against the three after their arrest in August 1969. If this were a novel, it might trace the life of Wilbert Thomas in the same detail as that of the Cain brothers, showing how young black men of similar backgrounds (that much is clear from the little we do know) came to be on a collision course; but it is not a novel, and I can at best suggest the similarities and differences.

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  Agency, Associations, Employment, Licensing and Partnerships: Cases, Statutes and Analysis on Enterprise Organization

  Alfred F. Conard, Robert L. Knauss, and Stanley Siegel

  The problems which arise out of the organization of human groups have many of the same fundamental elements, whether those groups take the form of proprietorships, partnerships, corporations, or sodalities. These elements are understood better, and at less cost in time, if they are put together, rather than separated in the traditional courses of agency, partnership, and business corporations. The combined treatment also facilitates including glimpses of the societies, clubs, and unions which are so important a feature of contemporary society. This feature, which characterized the predecessor casebooks on “Business Organization” has been continued and intensified in “Enterprise Organization.” The change in title signifies, among other things, a broadening of scope beyond mere “business.” The most conspicuous innovation in the present volume is a new emphasis on prerequisites which modern states impose on the formation of the simplest business organizations, and even on the lone worker’s pursuit of a vocation. Licensing is rapidly pervading all areas of gainful activity. In addition, few enterprises escape the necessity of filing something about their organization. For generations, law students were taught that corporations were distinguished by the fact that some papers had to be filed before doing business in corporate form. Many states now require partnerships also to file. In the preceding editions, some materials on these topics were inconspicuously inserted in chapters on other subjects. We now draw them together, augment them with materials on corporate filing, and make them into an introductory chapter. We want no student to escape with the idea that, since it’s a free country, an enterprise can be launched without paper work. We are also combatting the idea that an employer can hire whom he wants, indulging his personal preferences among males and females, blacks and white, Baptists and Jews. He must avoid discrimination against any under-represented group; he may even be required to take affirmative action to equalize under-representation. These are not matters merely for specialists in labor law, but part of the A-B-C of setting up an enterprise. We have included in our first chapter a brief confrontation with these problems. In at least one sense, the book is old-fashioned. We present the positive law. It is not enough to suggest a question; we present cases which supply judicial answers. We frequently present paired cases, helping to show where the judicial lines are drawn. When we think a judicial answer is not to be relied on, we add notes of caution. At the same time, we furnish materials for weighing the attractions of other rules. Foreign law notes, economic analyses, legal critiques supply suggestions of alternative solutions and their possible advantages. Two of the three editors will not be using this volume, but another which includes 450 additional pages of material on problems peculiar to enterprise in corporate form. We think it has teaching advantages for those who have 50 to 75 class hours available, and who want to offer a compact introductions to the vast labyrinths of corporation law. Its corporation materials are also available in a separate volume of about 500 pages, for those who want a brief introduction to corporations, preparatory to advanced studies in Corporate Finance, Business Planning or Securities Regulation. Since this volume is a successor to three editions of “Business Organization,” we owe a debt to the users of those editions for their many helpful suggestions, which have entered at innumerable points into this product. We hope that they and their successors will continue generously to share their ideas and critiques.