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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
In this book we offer a unified introduction to the entire area of business and private organization, from the individual proprietorship to the corporation, and from the manufacturing concern to the social club. There are common elements of social policy and ritual formality involved in all these forms of effort. To study them together effects not only a saving of time, but also a broadening of perspective and a deepening of understanding. The combination not only embraces the traditional subjects of “agency,” “partnership” and “corporations,” but also affords glimpses of unions and sodalities which are likely to escape all notice when study is packaged in the curricular capsules sanctified by a century of legal education. Obviously, this book is a compression—a painful one—of a series of subjects each of which cries out for fuller explanation. The compression is in part a response to the pressures of new subjects and new activities in legal education. On the one hand there is a burgeoning of interdisciplinary studies in economics, psychology, sociology and survey research techniques. On the other, there is the rise of practically-oriented activities such as clinics, legal aid and defender programs, and statutory drafting. Some schools have responded to this pressure by simply not teaching the classic problems formerly covered by courses in “agency” and “partnership” and simultaneously ignoring the more current problems in these areas: licensing, fiduciary and ethical problems of business relationships, and limitations on the free employment concept. We have chosen not to ignore these matters, nor to assume that our students would sense instinctively the inherent complexity and the universality of the problems of employment. Can such an assumption survive in the mind of one who has read Justice Holmes’ demonstration that “common sense is opposed to the fundamental theory of agency”? Yet to retain the classic subjects in their classic elaboration, and at the same time to offer a full-scale coverage of the law of corporations, would require some six to eight semester-hours of teaching. The student not specializing in the field should not have to sit so long to acquire a broad view of the organization of enterprise. We have provided an alternative through this condensed treatment, which transports the student through the formative stages of business licensing and regulation, and equality of access to business opportunity; operational questions of enterprise liability for personal and property injuries, employment, representation in business dealings, and fiduciary duties; and organizational issues of formation and financing of partnerships and corporations, financial and control structures, federal securities legislation, and corporate distributions and reorganizations. Along the way are substantial discussions of such issues as the scale of individual, partnership and corporate enterprise; corporate responsibility; and control of enterprises through institutional investment. Our aim is to provide in a single four-semester-hour course a survey of enterprise organization, in enough scope and detail so that the student will be able to recognize and address the problems that he encounters later in his career, whatever his career choice. For those who intend to advise enterprise owners and managers or legislators attempting to control their activities, this survey is only a beginning. Indeed, for such students an introductory course or courses, whatever the title, can never be enough. These materials provide the base on which courses in “investment securities,” “business planning,” “corporate responsibility,” and “multinational enterprise” can be built. Such subjects, involving heavy clinical or interdisciplinary inputs, can only be hinted at in these materials. Our compression, however, makes it possible for the student to reach these courses-possibly several of them--earlier in his law school career. In deciding what a potential lawyer needs to know about enterprise, we have taken a broad view. We start out with the necessity for a license in most of the kinds of business anyone would wish to pursue; this subject has particular relevance to the self-employed “individual proprietor,” whose numbers (in the millions) deserve some wisp of attention in the law school. We include cases involving the impact of labor legislation on business enterprise, and decisions on responsibilities in non-profit membership organizations such as the United Mine Workers and the NAACP. These, too, are “enterprises.” We have realized some economies through simultaneous treatment of common problems of proprietors, partners and corporations. There are not three sections on vicarious tort liability, but just one; there is one exposition, not three, of the inherent or apparent authority of business managers. Fiduciary duties by whatever name called are all merged in a single section. We have continued and extended the comparison of foreign law solutions and the analyses of economic and social functions of rules that characterized predecessor volumes to this book. It hardly needs to be said that the present volume is a successor to the casebook known as “Business Organization” edited in 1965 by Conard and Knauss, and in earlier years (1950, 1957) by Conard. Users of those books will find familiar terrain after they traverse the initial chapter, and they will find a common thread of analysis and approach in the new materials at the end of the book.
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Unquestioning Obedience to the President: The ACLU Case Against the Illegal War in Vietnam
Leon Friedman and Burt Neuborne
This book contains the legal documents in two related cases challenging the constitutionality of the Vietnam War. Congress was deceived about plans to bomb North Vietnam as early as Feb., 1964. Thus the period of congressional deception by the Executive branch lasted from early 1964 until the summer of 1965, when American ground troops began to arrive in force in Vietnam. At that point a new relationship between the President and Congress was created, lasting from May, 1965 until the middle of 1969. This second phase consisted of Congressional acquiescence in military actions in Vietnam. Once the President had secured the Gulf of Tonkin Resolution and commenced the rapid escalation of the war, he thought he would have no difficulty in persuading Congress to pay the increasing bills for the war. He knew that Congress would find it impossible to deny funds for military supplies needed to supply and protect troops in the field.
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China Trade Prospects and U.S. Policy
Jerome A. Cohen, Robert F. Dernberger, and John R. Garson
Few problems in the realm of international relations have seemed more tenacious and complex than that involving relations between the United States and mainland China. The Communist government has now existed for more than twenty years, and during that time America’s contacts with the people of China have been minimal. In recent years, the United States has made certain overtures to the People’s Republic of China, suggesting new possibilities for the future. Thus far, those overtures have been largely ignored. No one can doubt, however, that his is a transitional era for China, with an aging group of leaders dominated by the single figure of Mao Tse-tung now reaching the end of their long tenure in power. In less than ten years, China will be led by men whose names we cannot possible predict today, and their policies, both domestic and foreign, may well determine whether it is to be peace or war for Asia. It is in this context that the National Committee on United States-China Relations began its efforts in 1966. Ours is a non-partisan group composed of individuals taking a wide range of positions on substantive issues. Our central purpose is to explore in as objective and rational a manner as possible all aspects of “the China problem,” including domestic trends in mainland China and various U. S. policy alternatives. In a period marked by extensive emotionalism and when China once again threatens to be used as a tool for internal political purposes, we seek to keep the level of dialogue as high as possible, permitting all positions to be heard. One issue of possible future importance is that of trade between the United States and the People’s Republic of China. As is well known, our government has recently initiated certain modest changes of policy in this respect. It therefore seems appropriate to explore various aspects of this subject at this time. We are particularly fortunate in having Professor Alexander Eckstein supervise and direct these studies and in having the research services of Jerome A. Cohen of the Harvard Law School, Robert F. Dernberger of the University of Michigan, and John R. Garson of the law firm Bingham, Dana and Gould. Each has contributed a major paper on aspects of U. S.-China trade. (The views expressed by them are entirely their own and do not represent those of the National Committee.) The presentations of these three specialists formed the basis for two initial study sessions in New York City, built around a seminar composed of about thirty leading businessmen, government representatives, economists, and scholars, who examined their content in depth. W. Michael Blumenthal, President of Bendix International, chaired the sessions; he was remarkably effective in focusing the group’s attention on the crucial substantive issues. The sessions were so successful that we subsequently held two full-day seminars, the first in San Francisco under the chairmanship of William Roberts, President of Ampex Corporation, and the second in New York under the chairmanship of John Diebold, Chairman of Diebold Group, Inc. At both sessions, general background briefings were set forth and presented to invited representatives of leading corporations. I should reiterate that these sessions were not designed to create support for any single policy, nor did the participants hold a single point of view. Rather, the meetings were in line with the general purpose of the National Committee—to study seriously all issue having to do with China and U. S.-China relations. If these sessions accomplished that purpose, as I believe they did, we are greatly indebted to those who supervised and chaired them, to those who prepared the major papers, and to those who took time from busy schedules to participate in the sessions themselves. We feel that the research papers are sufficiently interesting and important to be presented to a wider audience. Hence, we are making them available in this volume with the hope that they will stimulate the same type of informed discussion that was initiated in San Francisco and New York.
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Getting Justice: The Rights of People
Stephen Gillers
This modest book is meant to give nonlawyers (and lawyers unfamiliar with the area) an introduction to the what and why of the criminal process. These are the things I wanted to know about before law school, but about which I could find no basic book to tell me. I have tried, therefore, consists with accuracy, to be simple and straightforward.
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The Assault on Privacy: Computers, Data Banks and Dossiers
Arthur R. Miller
Have you ever applied for credit, taken an aptitude test, filled out a government form, or completed a job questionnaire? Then a detailed profile of your financial dealings, friendships, political beliefs, sexual habits, and personality "quirks" may be stored in a computerized dossier - a dossier which is not open to your inspection. ITEM - The Associated Credit Bureaus of America maintains files on approximately one out of every two Americans. ITEM - The Army records information on the lawful political activites of numerous U.S. citizens. ITEM - In one year, the Pacific Telephone and Telegraph Co. monitored 27 million private telephone calls in California. "No people in the world," writes distinguished authority on computers and the law Arthur R. Miller, "are scrutinized, measured, counted, and interrogated by as many poll takers, social science researchers, and government officials as are Americans." Vast quantities of data are indeed necessary to the smooth functioning of a modern society. But vast quantities of data - indiscriminately collected, carelessly verified, and stupidly or malevolently utilized - can destroy the concept and the right of personal privacy as we know it. The Assault on Privacy is a startling and thoroughly documented account of the uses and abuses of the new information technology. Citing many actual cases, Professor Miller surveys the diverse areas in which personal privacy is seriously threatened. He reveals the inadequacy of present laws concerning privacy, and he details the strong steps necessary to ensure protection for every individual. In his authoritative dissection of the computerized assault on privacy, the author provides us with a pioneering work of prime importance.
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A Theory of Reasons for Action
David A.J. Richards
This work is an attempt to offer, in an exploratory and constructive spirit, a systematic account of the concept, reasons for action. The main thesis of this study is that there exists an adequate and true theory of the meaning of sentences using ‘reasons for action’ and related terminology—a theory which analyses or elucidates their meaning in terms of certain propositions (which may be truly or falsely asserted), which provided an account of the use of these sentences in performing various acts by speech (e.g. advising), and which clarifies the moving appeal to action which the utterance of these sentences often, or typically, has. Coherent with this general thesis, the work has the theoretical objective of presenting a plausible (not necessarily a true) formulation of such a theory, so that at least some good constructive reasons will have been giving for others to work further in developing a more accurate expression of the truth which is here perhaps only dimly perceived and incoherently expressed. Consonant with the book’s general thesis and theoretical objective, an attempt is made to formulate a structure of principles which will account for reasons for action associated with the concept of rationality (Prat I) and with the concept of morality (Part II). In both parts of the book, the same constructive pattern of argument is systematically applied. First, principles are formulated and explained. Secondly, an attempt is made to show how these principles clarify propositions which certain ‘ought’, ‘under and obligation’, ‘there is good reason’, etc., sentences express. Thirdly, an explanation is sketched regarding how the propositional account elucidates the use of these sentences in accomplishing the various characteristic speech acts that they do accomplish. And fourthly, an attempt is made to explain and clarify the moving appeal to action which the utterance of these sentences typically possess. Throughout, the orientation of this work is tentative and exploratory. No claims to finality or conclusiveness are made. Rather, a general approach to doing normative philosophy is suggested , one which re-examines and questions the fruitfulness of sharp divisions between analytic and substantive inquiries. The reader is invited to consider whether and how this approach may be usefully developed further.
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Contemporary Chinese Law: Research Problems and Perspectives
Jerome A. Cohen
Recently scholars have become increasingly aware that the study of Chinese law can provide new insight into the forces actually at work in Chinese society in different epochs. In an effort to encourage and facilitate the study of this subject, the thirteen essays of this volume deal with the methodology of studying the legal system of the People's Republic, describe the available research materials, and analyze the problems presented in making the materials of Chinese law intelligible to Western readers. Recently scholars have become increasingly aware that the study of Chinese law can provide new insight into the forces actually at work in Chinese society in different epochs. In an effort to encourage and facilitate the study of this subject, the thirteen essays of this volume deal with the methodology of studying the legal system of the People's Republic, describe the available research materials, and analyze the problems presented in making the materials of Chinese law intelligible to Western readers. They also review foreign works on Chinese law and explore the difficulties involved in translation and in comparing the Chinese system to our own and to that of the Soviet Union. Mr. Cohen's thoughtful introduction provides an excellent survey of the worldwide development of studies of Chinese law. It also delineates the nature of the essays that he and the eleven other scholars have contributed to the volume.
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The Dynamics of China's Foreign Relations
Jerome A. Cohen
Even before the Great Proletarian Cultural Revolution burst upon the scene in 1966, students of Chinese foreign policy were struggling to explain what many perceived to be the beginning of a decline in Perking’s international position during the 1960s. Was it wise for China’s Communist leaders to permit their country to become profoundly alienated from its Soviet elder brother? What was the rationale for China’s virtually simultaneous loss of friendship of India, the other major state with which it shared an extensive territorial boundary? Why, especially in view of the Sino-Soviet dispute, had Peking not responded to the modest initiatives belatedly taken by Washington to moderate the legacy of Sino-American hostility bequeathed by the 1950s? How should one interpret the PRC’s generally unsuccessful efforts to sow revolution in the fertile soil of Africa, Asia and Latin America? An obvious theme of such inquiries concerned the extent to which the apparent deterioration of China’s relations with a given country or area reflected factors peculiar to the relationship involved rather than factors common to the overall conduct of China’s foreign policy. Understandably, the advent of the Cultural Revolution and the more strident policy that Peking adopted toward most countries during that period made it tempting for observers to emphasize the new “general line” rather than the particular features of its application to concrete situations. Now that the paroxysm has passed, and Peking has begun to moderate certain aspects of its foreign policy again, it seems useful to devote further attention to case studies of China’s foreign relations that reveal the dynamics of China’s unique interaction with different areas and that adopt time frames of sufficient duration to permit us to view recent events in appropriate perspective. This, at least, is the premise upon which the following essays rest. They seek to examine specific problems that the PRC has encountered in some of the principal areas of the world with which it is concerned and to place those problems in the broader context of the PRC’s overall relationship to each area. All but one of these essays were originally prepared for presentation at the annual meeting of the Association for Asian Studies, held in San Francisco, April 3-5, 1970. In the first essay, Professor George Ginsburgs, of the Graduate Faculty of the New School for Social Research, analyzes the nature of the Sino-Soviet dispute over certain islands in the Amur and Ussuri Rivers, the evidence of the armed clashes to which it has given rise, and the reasons that each side may have had for instigating those clashes. After scrutinizing the subtleties and style of the debate, Professor Ginsburgs concluded that the dispute over the islands has contributed relatively little to Sino-Soviet hostility and that it is unlikely either side wishes to go to ware over so trivial an issue; nonetheless, each fins it advantageous to maintain its participation in a carefully calibrated contest over the islands. The consequences of border clashes with India that actually developed into serious conflict in 1962 constitute the subject of Professor Arthur A. Stahnke’s study of Chinas’ policies toward the South Asian subcontinent during the past decade. Professor Stahnke, of the Government Department of Southern Illinois University (Edwardsville), reviews the PRC’s support for Pakistan as part of its effort to isolate India diplomatically, and traces the successful comeback that India staged with the aid of the Soviet Union and the United States, which minimized the significance of Pakistan’s friendship with China and isolated the PRC. Professor Gene T. Hsiao, a colleague of Professor Stahnke at Southern Illinois University, explores the more unconventional triangular relationship that exist among Peking, Tokyo and Taipei. Focusing on the specific problem of trade, he describes Chinese Communist attempts to exact political gains from a Japan that enjoys the best of both Chinese worlds by doing business with the mainland, which it refuses to recognize diplomatically, as well as with Taiwan, which it continues to recognize. This account makes clear the relativelyhigh degree of flexibility and toleration with which, during most periods, Peking has reacted to Japan’s dexterity in steering between the two sides of the Taiwan strait. If the PRC has sometimes been willing to subordinate politics to economics in its relations with Japan, my own study of Peking’s attitude toward trade with the United States reveals no similar ambivalence. During the mid-1950s, when the new revolutionary regime persistently sought to persuade Washington to establish a variety of contacts with it and thereby gradually enhance its legitimacy, as one of the steps on the route to normalization of relations it tried in vain to eliminate the American embargo. In 1960, however, the PRC abandoned this unsuccessful gradualist approach as a “waste of time” and announced that the reestablishment of trade and other contacts would have to follow rather than precede resolution of the major political questions plaguing Sino-American relations. Thus, during the past decade, when it was the United States that adopted a gradualist approach and sought to establish contacts with china, including limited trade, Washington was consistently rebuffed by Peking, which preferred to await the withdrawal of American support from the Nationalist government on Taiwan and a return to the American (pre-Korean war) positions that Taiwan was part of China. The two final essays in this volume discuss Chinese policy toward Africa and Latin America, areas which, in the early 1960s, the PRC regarded as ripe for revolutionary change. Professor George T. Yu, of the University of Illinois, summarized the intensive and frequently effective PRC activity in Africa from 1960 to 1965, and the subsequent overall decline of Peking’s influence despite continuing success with a few governments and with national liberation movements in several other countries. In evaluating China’s ability to compete with the USSR and the United States in Africa, he concluded that China has been severely handicapped by its limited capacity to provide economic aid. Nevertheless, as the case of Tanzania indicates, the PRC owes its success in several countries to skillful use of its small aid program, combined with deft political maneuvering. Elsewhere, especially among the suppressed black majorities of Southern Africa, its anti-status quo orientation and its support of the doctrine of revolutionary armed struggle have proved its most reliable assets. Daniel Tretiak, senior political scientist of the Advanced Studies Group-Westinghouse, explains China’s lack of success in fomenting revolution in Latin America in terms of a classic pattern of interaction that he discerns between a new revolutionary nation-state and, on the one hand, the principal status quo members of the international community, and, on the other, revolutionary leaders in foreign countries governed by nonrevolutionary regimes. The high level of verbal support Peking gave to revolutionary leaders in Latin America reinforced the cycle of mutual hostility existing between revolutionary China and status quo United States. But it also reinforced the foreign revolutionary leaders’ expectations of substantial material aid from China, expectations that were doomed to disappointment because of the revolutionary nations-state’s need to give higher priority to other demands upon its scarce resources. Moreover, despite the low level of actual support it offered and despite that fact that contemporary Latin American conditions differ markedly from earlier Chinese conditions, Peking sought to impose the Chinese revolutionary model upon foreign revolutionary leaders. The Chinese indeed seem to have demonstrated as little sensitivity and understanding toward social revolutionaries seeking national independence in Latin America and the Soviet Union did in a previous era in China. The dominant theme common to these essays is largely implicit. Although three years of Cultural Revolutions had an immediate and damaging impact upon China’s relations with many countries, one can infer from these essays that this was not invariably the case and that, at least with respect to the particular areas studied, the long-range effects of the Cultural Revolution are likely to be relatively inconsequential. During the Cultural Revolution China’s foreign policy leaders seemed to be engaged in a systematic attempt to alienate most of the world, an attempt that enabled both the American and Soviet propaganda machines to foster the image of an elite gone mad. Yet this volume, written in early 1970, less than a year after the Cultural Revolution can be said to have ended, conjures a very different image of Chinese statesmen. It suggests that they can be farsighted or fallible, militant or flexible, subtle or insensitive, skillful or inept. But nowhere in this collection is there evidence that they are irrational, and perhaps the clearest impression is that, rhetoric to the contrary, they are a very cautious lot.
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The Possibility of Altruism
Thomas Nagel
Just as there are rational requirements on thought, there are rational requirements on action. This book defends a conception of ethics, and a related conception of human nature, according to which altruism is included among the basic rational requirements on desire and action.
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Police Power: Police Abuses in New York City
Paul G. Chevigny
This is not a book about sensational police scandals, either of corruption or of the third degree. It does not deal, and is not intended to deal, with the macabre excesses of the police as they are occasionally recorded in the newspapers, but rather with more routine denials of due process of law by false arrest, by unlawful search, and by “summary punishment”—police brutality. Most of the policemen in these cases are not detectives but patrolmen, involved in street-corner incidents. What I hope to tell is the genesis of these abuses and the reasons why so little is done to stop them. On the other hand, this study is not a general survey of police work. It does not recount the many brilliant investigations by detective, the acts of heroism of plainclothesmen in trying to decoy muggers, that were contemporary with the abuses recorded in this book. If it is not a “balanced” account, it was never intended to be one. This book is directed to finding out what is wrong, and the reasons for what is wrong, with law enforcement, chiefly in the streets. It concentrates upon police abuses in New York City during the two-year period of 1966 and 1967. The restriction to New York immediately raises a question about the general applicability in other communities of the patterns and conclusions described here. On the one hand, New York is the largest urban complex in the country, and it presents the most severe problems; on the other, the New York City Police Department has long had a reputation as one of the best departments in the country. I think it is clear from other, more general studies than this, which will be cited in succeeding chapters, that the problems explored here are more pronounced in other cities. New York may not be typical, but its police problems are typical of the police problems of the nation. I first became concerned with police abuses in 1965 while I was working in a neighborhood law office in Harlem. Although I had listened to a number of gruesome stories about the police, I could not really begin to grasp what the problem was until I had tried some criminal cases from the ghetto. The saddest of these cases concerned a Harlem window washer and his wife, a barmaid. On the wife’s night off, they were having drinks in a bar where she worked, and at the end of the evening, she went out into the street to hail a cab. A policeman, mistaking her flashy clothes for those of a prostitute, ordered her to move on. A vituperative argument ensued, and the wife was knocked down with a punch in the eye. When the husband ran out of the bar with a friend to protest, he was also knocked down. The wife was charged with assault and the husband with disorderly conduct (breach of the peace). A law student working in my office sat in that bar one night for six hours, hoping to find witnesses, and finally succeeded in giving subpoenas to three. But on the day of the barmaid’s trial, not one of them came to court—not on that day nor on any of the three days to which the trial was subsequently adjourned. At her husband’s trial, the friend who had run out into the street with him testified in his defense that there had been no breach of the peace. The friend’s credibility was poor, not only because he was a friend but because he had a criminal record; the magistrate found the husband guilty and gave him a suspended sentence. After his trial, the husband said, “You know, I’m pretty good with my hands. I bet I could have taken that cop. But when he punched me, I just lay there and thought, “Hell, I’ll go downtown and tell it to the judge.’ Well, I did tell it, but that cop lied, and the judge didn’t believe me. Next time anyone punches my wife, and, I’m going to take him.” The window washer probably would not have done what he threatened; he was too respectable and civilized a man. But the important thing was that he had learned to believe there was no way to get justice except with his hands. Similar criminal cases which I handled in 1965—of disorderly conduct, of assault, and often of resisting arrest—were just as discouraging; I lost four within the space of a few weeks. The result was that when I first heard about a plan for the New York Civil Liberties Union to study police abuses, I wanted nothing to do with it. I could imagine nothing more depressing than more of the same, over a period of two years. I had to see other lawyers win a few of these cases, and win a few myself, before I became convinced that such a project was useful; that it was sometimes possible to get witnesses to come to court to persuade judges to acquit.
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Wright and Miller's Federal Practice and Procedure
Charles A. Wright and Arthur R. Miller
Comprehensive and authoritative coverage of all aspects of federal civil, criminal and appellate procedure, including rules of civil, criminal, and appellate procedure, rules of evidence, the federal judicial system, jurisdiction of all federal courts, venue, removal of cases, res judicata, relation of state and federal courts, multidistrict litigation, and more. Provides extensive analysis of each rule as interpreted and applied by the federal courts and affected by related statutes and rules. Includes official forms adopted with the rules. Contains numerous tables and couples key words, ideas, and legal concepts to index and cited decisions, statutes, and other relevant materials.
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The Criminal Process in the People's Republic of China, 1949-1963: An Introduction
Jerome A. Cohen
The revolutionary triumph of communism in China in 1949 made the world's most populous country the subject of a gigantic political, social, and economic experiment. China also has been the subject of a significant legal experiment. Is the People's Republic of China an example of “’lawless unlimited power’ expressing itself solely in unpredictable and patternless interventions” in the lives of its people? Has the People’s Republic sought to attain Marx's vision of the ultimate withering away of the state and of the law? Has Mao Tse-tung preferred Soviet practice to Marxist preaching? If so, which Soviet model has he chosen to follow - that of Stalin or that of Stalin's heirs? To what extent has it been possible to transplant a foreign legal system into the world's oldest surviving legal tradition? Should today's Chinese legal system 'be viewed as a unique amalgam of Communist politics and Chinese culture? To what extent has the system demonstrated a capacity for change since 1949? What has been the direction of that change, and what are the prospects for the future? Western legal scholars are merely beginning to wrestle with such large questions, and at this stage one can only suggest hypotheses and raise problems for future research. This volume represents the fruits of a preliminary inquiry into one aspect of contemporary Chinese law—the criminal process. The emphasis is on the process itself, but a good deal of attention is necessarily devoted to substantive criminal law as well as to the modes of its application. The volume consists of three parts. The first is an introductory essay that provides an overview of the evolution and operation of the criminal process from 1949 through 1963. The second part, which constitutes the bulk of the book, systematically presents primary source materials that permit more detailed consideration of problems raised in the introduction. These materials include relevant excerpts from legal documents such as the Constitution, statutes, and other rules and regulations of the People's Republic; from official policy statements; from a treatise on criminal law that has been prepared to assist Chinese judicial officials; and from articles in Chinese law reviews, academic and popular journals, and national and local newspapers. In order to shed light on the law in action as well as the law on the books, I have also included many selections from the written and oral accounts of persons who have lived in or visited the People's Republic. Finally, to suggest the historical and comparative perspective essential for further understanding, I have reprinted at the beginning of Part II a brilliant but little-known essay by Professor Benjamin I. Schwartz, and in various places have reprinted other historical and comparative materials. It is my hope that Part II, from which I have taught my classes at Harvard Law School for the past three years, may be useful for purposes of instruction at the many other law schools and universities that have become interested in Communist law in general and Chinese law in particular. It may also constitute a helpful sourcebook for scholars of Chinese affairs and for comparatists in several academic disciplines. Because existing English translations of Chinese legal materials have been not only limited in quantity but also inadequate in quality, considerable effort has been made in this volume to provide translations that are accurate and yet not unduly clumsy. This has not been a simple job. Franz Schurmann has pointed out that the categories and language of Chinese Communist ideology are precise and carefully used by those who purvey the ideology. Unfortunately, Chinese Communist legal terminology has not attained the same degree of precision, and it is not unusual, especially in local newspapers, for legal terms to be employed loosely or opaquely. Moreover, given the outside observer's limited access to the contemporary Chinese legal system, it would hardly be surprising if he failed to grasp the meaning assigned to certain legal terms, including those that have been invoked by previous regimes but that now have new meanings. The principal contribution of Part III is an English-Chinese glossary of the major legal and institutional terms translated in Part II. This glossary does not in any sense purport to be a dictionary. It merely indicates the English terms that have been found to suit the meanings of the Chinese terms in the particular contexts in which they appear. Although the English equivalents given are certainly not the only ones that could have been devised, they are, it is hoped, adequate to the extremely difficult task of finding linguistic analogies between the terms used by systems as different as the Anglo-American and the Chinese Communist. To the extent permitted by the Chinese text, these equivalents have been consistently employed throughout. Thus, for example, each time the Chinese term tiao-chieh wei-yuan-hui appears, it has been rendered as “mediation committee” rather than as “conciliation committee,” “reconcilement commission,” or “arbitration council”; on the other hand, the term shen-p'an appears sometimes as “adjudication” and at other times as “trial,” depending upon the particular context. Part III also contains a bibliography of the sources drawn upon in Parts I and II and a modest number of English language books and articles that are pertinent to an understanding of the criminal process in mainland China. The extracts in Part II appear without their original footnotes except where I have considered the footnotes to be of particular importance. I have presented the English translations of other students only where the original Chinese text has not been available to me. The titles or positions by which the authors of extracts are sometimes identified are those they held at the time the given extract was published. The Chinese characters in the glossary were inscribed by Mr. Wang Yeh-chien, and the glossary was typed by Mrs. Bertha Ezell. I am greatly indebted to David Finkelstein for his talented and unflagging assistance in translation.
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Civil Procedure: Cases and Materials
John J. Cound, Jack H. Friedenthal, and Arthur R. Miller
We believe that a course in civil procedure should be one of the most exciting and entertaining intellectual experiences in a student's law-school career. This book has been planned and executed in that belief. Moreover, our primary purpose has been to produce a device for teaching rather than a tool for research, and several consequences have flowed from this choice. We have looked for 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 have interested and involved him. In developing this book, we also were aware that other things being equal the modern student will pay greater attention to a recent case than to an older one, even though the latter case may be hallowed by decades of citation. To be sure many of the famous landmarks will be found in these pages, but the great majority of the cases are of recent date. 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 analysis 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 Ten, and in briefer introductions to other sections of the book, we have tried to tell the student where he is going, and through extensive cross-referencing and questions we have tried to force him to review where he has 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 such as jurisdiction over the subject matter in which we believe the comparative approach has more limited utility than an in depth exploration of a single system. A careful attempt has been made to strike a balance between exploration of underlying philosophical problems and analysis of day-to-day matters that arise frequently in office practice or in the courts. Our theory is that a mixture of both is necessary to give students a comprehensive understanding of procedure. How else can they learn why, even today, after so many years of study, revision, and reform, major proposals for alteration of adjective law are still being made, and, undoubtedly, will continue to be made in the years to come? In addition, considerable use has been made of historical material, not only when it is directly relevant to today's system, as in the study of the right to jury trial, but also in contexts in which it is necessary for a true grasp of the basic problems. Because courses in civil procedure vary greatly not only as to the hours allotted but also as to whether they are mandatory or optional and as to the year during which students are expected to take them, the materials in this volume 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 designed to raise the basic problems of a procedural system, to illustrate the interplay among its various aspects, and to high- light many of the points in the earlier text. An effort has been made to select cases that can be handled with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let the student form some idea as to the nature of the litigation “forest” before attempting to make him 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 the student 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, the first year student is given some “breathing time” in which to absorb enough substantive law from his torts, contracts, and property courses to enable him to grasp the significance of such matters as “pleading a cause of action,” “contributory negligence,” and “joint and several interests.” Finally, the authors have concluded that despite its conceptual difficulty, personal jurisdiction is a much more teachable and exhilarating introduction to civil procedure than is pleading. The chapter on jurisdiction includes an extensive treatment of the federal courts. An investigation of a single system in detail seems the best way to impress the student 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 casebooks do) would only lead to the introduction of this material in driblets by lecture during the study of modern pleading and other subjects with no substantial saving in time and probably at a cost in comprehension. At the same time we have eschewed the temptation to overcompensate for the disappearance of courses in equity; we have not attempted to cover the substantive doctrines of that discipline in a historical note. Although we believe history is invaluable to the study of modern procedure, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The treatment of parties has been divided between Chapter Six and Chapter Fourteen. The problems of proper parties, impleader, joinder of claims, and counterclaims are considered together immediately after pleading, because they are an indispensable part of the pretrial process of clarifying the issues and readying the case for disposition. The procedures relevant to more complex litigation have been split off, to avoid a needlessly long interruption in the chronological development of the course. Moreover by delaying their consideration until the end of the course, the study of class actions and intervention is usefully illuminated by the earlier coverage of res judicata in Chapter Thirteen. 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 the student is able to see the different solutions put forth for particular procedural problems and is induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. The decision to place comparative materials in the Supplement presented us with the difficult question of choice between materials to be kept in the text and those to be put into the Supplement. Our decision, based largely on the calculation that the least confusion would result from placing all of the material in one place, was to put virtually all statutory and rule material in the Supplement where it can be readily located through the Supplement's separate index. Whatever inconvenience may follow from the use of two books seems to us more than compensated by presenting this material in a form in which it can be studied side by side with the cases themselves. All teachers of civil procedure are well aware of how difficult it is for a student to grapple with problems in the abstract; for example in the field of pleading he may have only a vague notion of what a pleading looks like. The Supplement therefore also contains an illustrative problem, showing how a case develops in practice and samples of the documents that might actually have formed a portion of the record. It is important to note that these samples are not designed as models to be emulated. To the contrary, they often contain defects intended to induce the student to criticize them in light of knowledge he has 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. In all cases we have provided the reader with a sufficient reference to enable him to consult the original source if he is so motivated. With regard to footnotes: the same numbering appears in the casebook as appears in the original source; editors' footnotes are indicated by letters.
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Pleading, Joinder and Discovery: Cases and Materials
John J. Cound, Jack H. Friedenthal, and Arthur R. Miller
This book, which covers all of the stages of litigation before trial, is based upon the authors’ Cases and Materials on Civil Procedure. Although the full-year first-year course in civil procedure has gained in popularity, many law schools find advantageous the presentation of pleading and related pretrial matters in a separate course. The pleading course is sometimes a first-year offering designed to acquaint new law students with the basic aspects of procedure while saving trials and appeals for later consideration in a more practice-oriented setting; in other schools pleading is reserved for seniors to take advantage of their more fully-developed substantive-law background. We believe that this book will fit either type of course in that its approach is suitable for first year students while its contents will challenge even seniors. The first chapter 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. Although this discussion may be unnecessary in an advanced course, we believe it is an important function of any procedure course that 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 number of illustrative cases designed to raise the basic problems with which the procedure before trial is concerned. An effort has been made to select cases that can be handled with relative dispatch so that the introduction does not become a de facto study of the entire course. In general, Chapter One is intended to let the student form some idea as to the nature of the litigation “forest” before attempting to make him master of any of its “trees.” A course that deals with any aspect of civil procedure must involve some knowledge of personal jurisdiction and jurisdiction over the subject matter. We have felt it necessary then to offer materials from which this knowledge can be gained, although the coverage is considerably less extensive than that in our larger book and most of the material on the jurisdiction of the federal courts that appears there has been excised. Because students using this book frequently will have derived knowledge of jurisdiction in other courses, we have been faced with the question whether these materials should be relegated to an appendix. Our decision has been to include them at that point at which we believe they are best taught if they are to be taught in the course at all; on the other hand, the chapter may be skipped entirely without disturbing the continuity of the book. We also have treated in this way another tangential area, which is essential to the understanding of many questions of procedure before trial-the problem of ascertaining the applicable law. Much of this material is presented in a textual note, because we recognize how little time can be devoted to this topic in a course largely devoted to pleading, joinder, and discovery. We have concluded that to omit a plenary section on common-law pleading, the forms of action, equity, and the nineteenth century reforms 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. Although we believe history is invaluable to the study of modern procedure, however, the modern pleading chapter has been planned as a choate whole, and does not require the coverage of the earlier background chapter. The treatment of parties has been divided between Chapter Six and Chapter Eleven. The problems of proper parties, impleader, joinder of claims, and counterclaims are considered together immediately after pleading, because they are an indispensable part of the pretrial process of clarifying the issues and readying the case for disposition. The procedures relevant to more complex litigation have been split off, to avoid a needlessly long interruption in the chronological development of the course. Our primary purpose, as in our larger book, has been to produce a device for teaching rather than a tool for research. We have looked for 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. 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 analysis survives best when presented in a clear and simple environment. The danger is not of patronizing students, but of losing them. We have not concentrated on the law of any one jurisdiction and in general, the book proceeds on a comparative basis. There is, however, 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. The materials in this volume refer to and are augmented by the Supplement prepared for our larger book, which contains not only the federal statutes and rules governing procedure, but also comparative state provisions. In some cases other materials, such as notes of Advisory Committees, also are included. Thus at a glance the student is able to see the different solutions put forth for particular procedural problems and is induced to explore the reasons why one rule has not been universally acclaimed as “superior” and adopted by all jurisdictions. The decision to place comparative materials in the Supplement presented us with the difficult question of choice between materials to be kept in the text and those to be put into the Supplement. Our decision, based largely on the calculation that the least confusion would result from placing all of the material in one place, was to put virtually all statutory and rule material in the Supplement where it can be readily located through the Supplement's separate index. Whatever inconvenience may follow from the use of two books seems to us more than compensated by presenting this material in a form in which it can be studied side by side with the cases themselves. Included in the Supplement is an illustrative problem, showing how a case develops in practice and samples of the documents that might actually have formed a portion of the record. We have hoped in this way to reduce the extent to which a student frequently finds procedural material maddeningly abstract. Although this problem was prepared to cover the entire range of litigation, it proceeds in chronological order, so that those portions of the problem relating to litigation before trial may be identified easily. It is important to note that the documents accompanying the problem are not designed as models to be emulated. To the contrary, they often contain defects intended to induce the student to criticize them in light of knowledge he has 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. In all cases we have provided the reader with a sufficient reference to enable him to consult the original source if he is so motivated. With regard to footnotes: the same numbering appears in the casebook as appears in the original source; editors' footnotes are indicated by letters.
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New York Civil Practice
Jack B. Weinstein, Harold L. Korn, and Arthur R. Miller
New York Civil Practice: CPLR, 2nd Edition, more commonly known as Weinstein, Korn & Miller, is recognized by the courts and the market as the leading treatise on NY civil procedure and litigation. Weinstein, Korn & Miller makes the in-depth analysis of eminent experts accessible to civil practitioners. It provides comprehensive answers to all procedural questions, including not only a coherent statement of the current law but also an analysis of how the law is interpreted and applied and how it has evolved. Clear organization, mirroring that of the CPLR, and cross-references to applicable forms in Bender's Forms for the Civil Practice (Vols. 1-16), make it easy to find the topic of interest and complete the task at hand.
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