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Executive Seminar Readings on Justice and Society
David A.J. Richards
The Seminar on Justice and Society, for which these materials have been prepared, is an important development in the Executive Seminar series of the Aspen Institute. The Institute had its origins in the Goethe Bicentennial Celebration in 1949. The first program activity the following year was the Executive Seminar, which brought together leaders from business, labor, the media and the academic and public sectors of society to discuss the relevance of the seminal ideas of mankind to the unsettle and unsettling issues of the day. The program has been so successful that 15 to 20 Executive Seminars are now offered each year. More recently, the format has been adapted to a Seminar on The Corporation and Society, which is offered several times a year. The Program on Justice, Society and the Individual, the sponsor of the new Seminar on Justice and Society, was established in 1975 as one of the five Thought-Leading-to-Action programs of the institute. Issues of social justice, fairness and individual freedom have always been central to the Institute. The creation of the Justice Program provided a specific focus for those issues as an integral part of all Institute activities. The work of the Justice Program is especially relevant to the Institute’s present overarching concern for sustained examination of the crucial issues of Governance: how societies and their institutions, public and private, national and international, can better respond to the often conflicting pressures for justice, fairness and efficiency. The Justice Program in mindful of the word of Judge Learned Hand: “If we are to keep our democracy, there must be on commandment: Thou shalt not ration justice.” In that spirit, the Justice Program endeavors to clarify the concept of justice in modern society, enlarge pubic understanding of the history and meaning of justice and seek practical applications of justice in an interdependent nation and world. The five major categories of Justice Program activities are Conflict Resolution; Criminal Justice, Understanding and Improving the Justice System; Justice and Ethical Values, and Human Rights. The seminar on Justice and Society builds upon the methods of the Executive Seminar and The Corporation and Society Seminar and draws upon the ongoing work of the Justice Program and the Institute-wide activities relating to Governance. The objective is to provide an opportunity for reflective discussion of significant issues of justice, illuminated by a humanistic viewpoint. Participants include members of the judiciary, lawyers in the private and public sectors, law teachers, and nonlawyers who bring to the discussions the perspective of an informed public. The idea of a Seminar on Justice and Society was first suggested by Mr. Justice Harry Blackmun of the Supreme Court of the United States following his enthusiastic participation in an Executive Seminar. The proposal was shaped under the supervision of Robert B. McKay, the Director of the Justice Program, and Alice H. Henkin, the Associate Director. The readings were prepared by Professor David A. J. Richards of New York University School of Law. This Seminar is an essential building block for all activities of the Institute with special relevance to Governance. . . . The Justice and Society Seminar is intended to examine in a broadly humanistic perspective the role of justice in society, particularly in the form of a discussion of contemporary and classical readings. It is hoped that these reading may stimulate self-critical reflection on the values of justice and the role those values should play in legal institutions and on the part of lawyers and others in the making of a decent society. The Table of Contents indicates the range of subjects and perspectives that we hope will engage the participants’ moral imagination. The anthology begins with background reading to be read prior to the Seminar. They include major statements regarding the concept of justice and alternative attempts to translate that concept into principles of social action. These readings are intended to provide a general review of philosophical traditions regarding justice which will then be more concretely examined in the course of the Seminar itself. One of the main objectives of this anthology is to suggest the fruitfulness of re-engaging general philosophical perspective with critical reflection on exigent matters of social and political concern. The anthology is divided into several topics and subdivided into eleven days. The readings for each section are prefaced by a note which attempts to tie together the issues posed by the readings. The Seminar is intended as an exercise in reciprocity and dialogue among equals, and the readings are designed to afford a common basis for such discussion. But each participant is free to bring his or her own sense of which issues most critically bear discussion. The reading thus provide a background for such exchanges; they do not necessarily define their scope or content or emphasis. This first Seminar on “Justice and Society” is experimental. The direction, the mix of participants, the orientation of the material and, especially, the choice of readings themselves will be evaluated and reassessed during the sessions and in a concluding twelfth session. Therefore, the participants in the inaugural Seminar are collaborators with the Justice Program and are invited to share with the Institute both the challenge of a major new initiative and the constructive excitement of making improvements for the future.
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Collective Bargaining and Labor Arbitration: Materials on Collective Bargaining, Labor Arbitration and Discrimination in Employment
Donald P. Rothschild, Leroy S. Merrifield, and Harry T. Edwards
We have sought in this volume to provide teaching materials for use primarily in laws schools, but also in schools of business administration, departments of economics and other college and university departments where there is advanced curricular attention to labor and industrial relations. The typical basic course in “Labor Law” or “Labor and Industrial Relations” cannot, without undue dilution, deal adequately with the problems associated with the negotiation and enforcement of the collective bargaining agreement, as well as the current “external” law affecting collective bargaining. We think this subject is worthy of independent examination by law student san others who contemplate careers in labor relations law or practice, and even by students who are preparing for some other vocation in view of the increasing importance, in today’s pluralistic society, of the process of informal dispute settlement. The subtitle of this volume indicates that our materials deal with “collective bargaining, labor arbitration and discrimination in employment.” Actually, because of the usual constraints inherent in the preparation of course materials, and having in mind certain primary objectives, we have found it necessary or desirable to give relatively greater emphasis to certain aspects of the broad subject range of the subtitle than to others. With respect to negotiation, we concentrate on the “how to” aspects of the process, because of the prolix materials dealing with the conceptual basis of bargaining. With respect to the administration of collective bargaining agreements, we emphasize the arbitration process because of its general acceptance and the stature accorded to it by the developing federal labor law. Our treatment of the Agreement itself has been substantially reduced from the first edition, because of the inherent complexity of the subject matter, such as seniority, and the many forms of compensation (e.g., incentives, fringes, pensions, etc.). Since the last ten years have brought considerable attention to the critical areas of discrimination in employment, we have added a new dimension to our materials covering its impact on collective bargaining, We feel that the challenge of the next decade to the process will come from its capacity to resolve the issues raised in this section. Since our first edition, we have been able to experiment with the pedagogical problems inherent in using these materials for an elective course. Our usage, along with the constructive criticism that we have received from some of our users, has convinced us of the importance of the subject matter in the materials, If not on the form of its presentation. Our goal in this edition is to provide materials that will assist the student tin understanding the process of negotiation, and the drafting and administration of collective bargaining agreements. Secondly, we feel that it is of utmost importance in such a course to present the current challenges to the system posed by the significant issues in laws which are “external” to the process itself. We hope that those using this second edition will be aware of what Professor Russell A. Smith, to whom this book is dedicated, calls the “agenda items” in collective bargaining, as well as to the pressure in our society impacting on the process. Frankly, we feel that this awareness is more significant than the pedagogical impediments which naturally flow from such an ambitious exposition.
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Essays on the Law and Economics of Local Governments
Daniel L. Rubinfeld
In the past several years, the study of law has become increasingly prevalent among economists, while the discipline of economics (as well as other social sciences) has increasingly come under scrutiny by legal scholars. In fact the range of subject matter included under “law and economics” is rather broad, and many of the underlying methodological issues are relevant for the study of disparate areas in both law and economics. The five papers include in this volume are an outgrowth of interest in the relationship between law and economics among economists and lawyers, with a specific, substantive interest in the economics of state and local governments. These papers were originally presented at the October, 1978 meeting of the Committee of Urban Public Economics (COUPE) held at Harvard Law School. The conference was organized by A. Mitchell Polinsky and Daniel L. Rubinfeld, and was supported financially by the Urban Institute. While each of the five papers touches, to ne extent or another, on the subject matter of local public economics, the range of materials and issues is extremely broad. Three of the conference papers are essentially normative essays.
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Prosecutorial Discretion and Federal Sentencing Reform
Stephen J. Schulhofer
The proposed Federal Criminal Code passed by the Senate in the last Congress—S. 1437—contains provisions that would radically alter the structure of the federal sentencing process. The bill would create a United States Sentencing Commission that would promulgate guidelines to be used by trial judges in determining sentences. The Sentencing Commission would also promulgate guidelines for the United States Parole Commission to use in determining whether an eligible prisoner should be released on parole. The bill is intended to narrow the discretion heretofore exercised by judges and the Parole Commission, in order to “avoid . . . unwarranted sentence disparities.” It is by no means clear, however, that narrowing the discretion of judges and the Parole Commission would reduce disparities or control the total amount of discretion exercised in the criminal justice system. The reforms proposed in S. 1437 could actually aggravate the problems of discretion and sentencing disparities, because the enormous discretion exercised by prosecutors would not be brought under direct control. If judicial discretion were greatly reduced, the prosecutor's decisions regarding charge and plea agreements would be much more important in determining ultimate punishment. Although the possibility for abuse and arbitrary results at the judicial and parole stages would be greatly reduced, so would the possibility that judges or parole officials could counteract extreme decisions at the charging stage. As a result, it is possible (and some observers think likely) that the proposed system would generate even greater disparities than those resulting from our present system of three separate—but to some extent, offsetting—levels of discretion. Moreover, even if overall disparity did not increase, the quality of the discretion exercised might be adversely affected because, in effect, discretion would be transferred from federal district judges to assistant United States attorneys. No matter how conscientious they are, assistant United States attorneys are almost uniformly far younger and less experienced than district judges, and their decisions are typically far less visible. The present study was designed to explore the extent of these dangers and to develop proposals for minimizing them. The report identifies three principal approaches that the Sentencing Commission could take in promulgating guidelines under S. 1437. Guidelines restricting judicial discretion (with or without sentencing provisions designed to minimize the importance of factors within prosecutorial control) seem most faithful to the spirit of S. 1437. But paradoxically, they seem likely to generate sentencing disparities more pronounced and less justified than those arising under current law. Guidelines preserving judicial discretion are technically permitted by S. 1437, though they seem essentially contrary to its spirit. Such guidelines could reduce the incidence of extreme disparities and effect modest, though by no means revolutionary, improvements in the sentencing system. Approaches controlling charging and sentencinq discretion can be effectively implemented only with amendments to S. 1437, but these approaches offer the best hope for achieving a substantial reduction in sentencing disparities, as well as better assurance of sound decisions in individual cases. The report evaluates in particular detail two methods for controlling both charging and sentencing discretion. The first, a policy basing the sentence upon the “real” offense rather than the formal offense of conviction, appears unwise and ultimately unworkable. The second method, involving formal guidelines to regulate charge-reduction decisions and explicit concessions for defendants pleading guilty, seems both sound in principle and workable in practice. The final chapter of this report describes a guideline model reflecting the latter method. Charge-reduction guidelines of the kind proposed would provide a basis for effective control of discretion and substantial reduction of sentencing disparity. Such guidelines also appear capable of significantly improving the fairness of the plea negotiation process and the general quality of sentencing decisions.
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Michigan Business Corporations
Stanley Siegel, Stephen H. Schulman, and Cyril Moscow
This work provides a complete discussion of the Michigan Business Corporation Act with legislative history, source comments, reporter's dissent, and in depth analysis. A complete collection of official and unofficial forms is included in the book.
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Class Notes: A Novel
Catharine R. Stimpson
Class Notes is a bittersweet and witty novel of a young girl coming of age in America, on both the opposite edges of the continent. Her path to womanhood lies on a collision course between the fifties and the sixties, and their impact would change her and America forever. Harriet Elizabeth Springer is raised in a Pacific Northwest fishing town in a home torn between her father's limited pragmatism and her mother's ambitious idealism. Handsome, intelligent, restless, she yearns to belong, but the rules baffle her, the boys shun her, and Northville stifles her. Nearly everyone in Northville was pleased to have settled there for life. I clamored to get out, to a place where people read books before the Reader's Digest condensed them. So, armed with one State Good Citizenship Award and three Miss Sweetheart Intelligence Prizes, Harriet leaves hayrides and heavy petting for the domain of the rich and the worldly-wise. If Northville was the final bastion of the fifties, eastern, exclusive Harwyn College was the outpost of liberalism. There, her circle numbers the flighty Naomi from Uruguay; big, bold marriage-shy Amarillo from Texas; and the inevitable French seducer, Jean Maurin. And most diquieting and mysteriously compelling of them all is the beautiful army brat, Sloan Trouver, who draws Harriet into choices that she and the decade still spoke of in whispers. The most trying testing ground of all proves to be New York City, where Harriet goes in search of a career. She anxiously experiments with liberal politics and controversial sexual liaisons. But most important, she learns the pain and satisfaction of making solitary decisions and of finding a meaning for her womanhood that the world was only on the brink of embracing.
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Pain and Profit: The Politics of Malpractice
Sylvia A. Law and Steven Polan
Medical malpractice is a problem that has come of age. In the past few years, it has demanded the urgent attention of the legislatures of every state, the state departments of health and insurance, the United States Congress, and many other private and public agencies. When these agencies and organizations were confronted with a sudden crisis arising from spiraling insurance premiums and insurance unavailability, they naturally looked to available sources of knowledge and information to see what might be done. Often the primary sources of information and ideas were the special-interest groups: the trial lawyers who make their living representing patients or doctors in malpractice cases; organized medicine; and insurance trade associations and companies. Everyone recognizes that information provided by special-interest groups is bound to reflect and protect the interests of the group presenting it. But in this situation there are few alternative sources of information and ideas. Certainly, patients as a group do not have anyone to speak for them, either as people who are at risk of injury through medical treatment, or as the people who ultimately bear the costs of rising malpractice premiums. Often, conscientious and competent doctors are ill-advised and ill-served by the leaders of organized medicine who purport to represent them in the media and the legislatures. Lawyers, most of whom have little or no knowledge of the laws and procedures which bear on medical malpractice, are often represented only by those groups that have staked out a particular economic niche in the medical-liability market. What results is an astounding amount of misinformation for popular and professional consumption. Well-motivated, highly intelligent physicians can hardly speak with their lawyer friends about this issue. Scarcely anyone trusts the insurance companies, though no one has much specific knowledge of how they operate. Professional polarization sets in. There is little worthwhile interchange. This book is written for the many decent and conscientious lawmakers, regulators, and health administrators who must formulate policies in relation to medical malpractice and who need concise, accurate, and documented information and ideas in order to question, evaluate, and challenge the proposals which are inevitably pressed upon them by the special-interest groups. It is written for the many doctors who recognize that they are being unfairly penalized for their colleagues’ derelictions and feel powerless to change this situation. Finally, it is written for the consumers of health services who wish to know what the malpractice “crisis” is really all about, and how it affects them. One of the few disinterested sources of information and ideas about the medical malpractice problem is the 1973 Report of the HEW Secretary’s Commission on Medical Malpractice. This is an excellent collection of data and ideas, but, unfortunately, it has not been disseminated and read as widely as it should be. Our book presents the major information and recommendations of the HEW Report, updates its data where that is possible, and sometimes takes issue with its approaches and conclusions. We hope that this book will make the important information gathered and presented in that 1973 Report more accessible. Much has happened in relation to medical malpractice since 1973, and we analyze those developments. We do not represent any special interest or preconceived point of view. On the other hand, we believe that we do have some qualifications to speak with authority on these issues. Although both of us are lawyers, neither of us has ever represented a patient or a physician in a medical malpractice case. The freedom to acquire specialized knowledge, without the bias and distortion which inevitably result when the acquisition of knowledge is financed to serve the interests of a particular group, is the special privilege and joy of working in an academic setting. New York University Law School has provided us with the intellectual, financial, logistical, and secretarial support which mad this book possible. We both have long-standing interest and involvement in the developing area of the law which attempts to analyze and understand the legal structures that determine the shape of the medical-care delivery system in the United States. Sylvia Law teaches torts, or the law of personal injuries, of which medical malpractice is one branch, health law, and insurance. From 1970 to 1973, she worked with the Health Law Project of the University of Pennsylvania, a group funded by the government and private foundations to develop materials for teaching law students and lawyers the basic legal structures of medical-care delivery systems. Steven Polan became involved in problems of the organization of medical-care delivery while working for Congressman Bob Eckhardt and pursued these interests through his law-school career, both through academic work and as a staff assistant to the Health Committee of the City Council of New York. He now works as a lawyer and health specialist with Carol Bellamy, President of the N.Y. City Council. We hope that this book is in the best tradition of responsible scholarship. Scholarly work demands an openness to the complexities of differing points of view, and documentation and evaluation of sources of knowledge. We have tried to provide them. But we do not believe that scholarly analysis must be confined to subjects which are esoteric, narrow, or banal. We hope that readers will find this book interesting, lively, and a useful resource in dealing with a major social issue of the day. The theme of the book is that the causes of the malpractice crisis are multifaceted, hence solutions must be sought on many different fronts. The roots of the crisis run deep in the basic economic structure and moral assumptions of three major American institutions: medicine, the law, and the insurance industry. Therefore, solutions must of necessity address fundamental problems. Limited reforms are possible, and are suggested. But minor reforms, if they are to be effective even as stopgap measures, must be consonant with more fundamental solutions. As we will show, many of the recent attempted “reforms” are at best useless, and at works will exacerbate existing problems. For these reasons, the malpractice crisis is not likely soon to disappear or be solved. Although the focus of this book is medical malpractice insurance, much of the analysis is also applicable to other fields. After an introduction to general principles of liability, the first major section of the book discusses the ways in which the market for medical services and the organization and regulation of those services contribute to the rising costs of malpractice insurance. The second large section discusses the role of lawyers in the court system. The third and final section examines the insurance industry. In recent years, there have been large increases in the cost of all forms of liability insurance: product-liability insurance; the malpractice insurance of lawyers and other professionals; automobile-liability insurance. The information and analysis presented in the last two thirds of the book may be helpful in understanding the reasons for increases in the costs of liability insurance in areas other than medical malpractice. The major work was done in 1975 and 1976, and includes new developments through November 1977.
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Environmental Law and Policy: Readings, Materials and Notes
Richard B. Stewart and James E. Krier
The second edition of Environmental Law and Policy represents a substantial restructuring as well as updating of the first edition prepared by Professor Krier in 1971. This revision is entirely my responsibility, although Prof. Krier has contributed many useful suggestions and insights. The arrangement of the materials chapters has been substantially altered; relevant statutes and decisional law has been updated through the spring of 1978; and the coverage of economic analysis, water pollution control regulation, and the National Environmental Policy Act has been greatly expanded. Despite these changes, the basic aim and strategy of the first edition is maintained. As Professor Krier noted in the preface to the first edition, any effort in a work of this scope to teach the student or convey to the reader all relevant “black letter” environmental law—decisions, statutes, and regulations—would be doomed to failure. The domain of environmental law is too vast and variegated to be neatly reduced. Also, any effort at a comprehensive restatement of environmental law would soon become obsolescent. The events in the seven years since the first edition amply demonstrate the rapid pace of change in judicial decision, legislative enactment, and administrative regulation and decision in this field. These characteristics pose problems of exposition to which introductory environmental law books often respond in one of two ways. One approach is to assemble a brief sampling of materials from each of many different fields of environmental law, such as air and water pollution control, land use, management of mineral, timber, and other natural resources, occupational health and safety, and so on. The second approach, which is followed in this book, is to develop a general analytical framework for understanding many types of environmental problems and the responses of the legal system to such problems, and to elaborate and apply the general framework through concrete emphasis on one or two particular fields of environmental law. The goal of this approach is to give the reader and student a general and enduring understanding of the fundamental features of and issues in environmental law without sacrificing the realism and insight fostered by a more detailed focus on particular cases and problems. The general framework which the book attempts to develop is reflected in the chapter organization. Chapter One provides and introduction to the nature of environmental problems, while Chapter Two surveys the possible causes of those problems. Chapter Three draws heavily on economic analysis in viewing the origins of environmental problems in conflicting claims on natural resources and highlighting the important role of the legal system in resolving such conflicts. The limitations of economic analysis and the relevance of other social goals to environmental problems are also addressed. The remaining chapters examine the different ways in which the legal system might deal with environmental problems. Chapter Four examines the strengths and drawbacks of the common law system of private civil litigation. Legislative and administrative regulation, which is today the dominant response of the legal system to environmental problems, is examined in Chapter Five. Chapter Six reviews a number of alternatives to regulatory controls—such as subsidies, pollution charges, transferable property rights in pollution, and administrative compensation schemes—that are likely to be more widely used in the future. Chapters Seven and Eight deal with judicial control of administrative agencies whose policy choices have environmental impacts. Chapter Seven examines the application of general principles of administrative law to environmental controversies, while Chapter Eight examines the National Environmental Policy Act. Chapter Nine briefly examines alternative mechanisms for funding environmental advocacy. A unifying concern of the entire work is the comparative performance of alternative legal institutions in responding to environmental resource conflicts, particularly in cases where use of environmental resources such as air of water provides tangible short-term benefits to well organized interests but threatens more diffuse, uncertain and long-term harms to the natural environment or to loosely organized environmental interests. In developing a framework for addressing this basic issue, the materials—particularly Chapters One, Four, and Five—focus on the problem of air pollution as a case in point. Air pollution is particularly well suited for this purpose, because it represents one of our most important and difficult set of environmental problems, and because the response of the legal system to air pollution is more fully developed than in many other areas. In addition, the links between air pollution control and other environmental problems, such as land use, are becoming more and more apparent. However, the materials in this book are not limited to air pollution problems. Regulation of water pollution is examined in Chapter Five, and the later chapters involve a broad variety of environmental problems. The book is designed to serve, standing by itself, as a text suitable for an introductory environmental course of two to three hours. However, many teachers familiar with other aspects of environmental law may wish to supplement the book with their own materials on water law, noise, land use planning, resource management, toxic substances, and so forth. It is my hope that the basic structure of this book is sufficiently general to facilitate such supplementation. The emphasis in the book on economic analysis of environmental problems and environmental law bears discussion. It is my own view that environmental law badly needs a unifying analytic framework, and that the focus of economics on conflicting resource uses provides at least a partial answer to that need. The economics materials in this book have been carefully written on the assumption that the reader has no technical economics background, and I am confident that the writings and ideas used are within the grasp of any college-educated person. Moreover, the book is also designed so that those instructors who do not find it profitable to emphasize economic analysis can avoid such emphasis by omitting all or portions of Chapter Three. Beyond the focus on economics in Chapter Three and elsewhere, the books as a whole devotes considerable attention to general policy and institutional analysis of environmental problems in addition to specific legal doctrine and rules. There are fewer cases here than one ordinarily finds in a law school course book, and many of them are included as much for data about problems as they are for pronouncements about doctrine. In addition, there are large doses of what I hope to be explanatory materials, as well as extensive references to relevant literature. Because environmental law is so rapidly changing, and because the interrelation between law and other disciplines is so apparent in the environmental field, I think it essential that students of environmental law be exposed to these broader perspectives in order to be effective in whatever role they come to play in the environmental field in the future. At the same time, I hope that the attention to more general policy and institutional analysis will encourage use of the book by nonlawyers with an interest in environmental policy questions. As previously noted, Professor Krier has provided me with many helpful suggestions and needed encouragement in my preparation of the second edition, which retains much of the material and the pioneering conceptual framework utilized by him in the first edition.
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Agency, Associations, Employment, Licensing and Partnerships: Cases, Statutes and Analysis
Alfred F. Conard, Robert L. Knauss, and Stanley Siegel
This volume is an abridgement of the second edition of Enterprise Organization (1977) edited by Conard, Knauss and Siegel, (1st edition 1972), which was a successor to the casebook Business Organization (1965) edited by Conard and Knauss, and in earlier years (1950 and 1957) by Conard. Starting with its first edition the emphasis of this casebook has not been on traditional doctrines-agency, partnership, corporations—but on the functional problems of doing business in an organized society. The focus is on business relationships—one person working for, or doing business through, another; two or more persons doing business together. The legal problems include the effect of these relationships on third parties, and the rights and obligations between the parties themselves. In deciding what a potential lawyer needs to know about business organizations or enterprises we have taken the broad view. After an introductory chapter on forms of organizations, we start 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 attention in law schools. The next several chapters deal with relationships which are common to enterprises of nearly every size, from the proprietorship with a single employee to the corporation with a hundred thousand. Topics include enterprise liability for personal and property injuries, employment, representation in business dealings, and fiduciary duties. In analyzing these issues the nature of the employer or principal (proprietor, partner or corporation) is of little importance in determining the rights and responsibilities of third parties injured by or dealing through agents. The form of business entity is important in these areas to determine whether individual members can limit their liability, and the case materials provide opportunities to explore this question. This edition concludes with material relating to the special problems of partnerships. This volume continues the policy of the earlier editions in respect to notes. Those which every student should read are in large readable type. Those which are designed to invite optional investigation are in small type and are labelled “references”. In most references, a few words in parentheses indicate what line of inquiry the citation pursues. The citations do not purport to be exhaustive; nor to be uniformly important. They are an attempt by the editors to pass on to student and teacher some of the leads which they have necessarily uncovered in a systematic study of cases and periodical literature over a period of years. We have continued and extended the comparison of foreign law solutions and the analysis of the economic and social functions of rules that characterized predecessor volumes of this book.
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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 into relationships involving other forms of organization which are likely to escape all notice when study is packaged in the curricular capsules sanctified by a century of legal education. In deciding what a potential lawyer needs to know about enterprise, we have taken a broad view. We start 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, as well as to corporations of all sizes. The next several chapters deal with relationships which are common to enterprises of nearly every size, from the proprietorship with a single employee to the corporation with a hundred thousand. The legal problems include the effect of these relationships on third parties, and the rights and obligations among the parties themselves. Topics include enterprise liability for personal and property injuries, employment, representation in business dealings, and fiduciary duties. Following material relating to special problems of partnerships, the focus of the rest of the book is on topics that primarily involve corporations. These include financial and control structures, federal securities legislation, corporate responsibility, and corporate distributions and reorganizations. 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 and apparent authority of business managers. Fiduciary duties by whatever name called are all merged in a single section. In these materials the nature of the employer or principal may be of little importance in determining the rights and responsibilities of third parties injured by or dealing through agents. The form of business entity is important in these areas to determine whether individual members can limit their liability, and the case materials provide opportunities to explore this question. This volume continues the policy of the earlier editions in respect to notes. Those which every student should read are in large readable type. Those which are designed to invite optional investigation are in small type and are labelled “references”. In most references, a few words in parentheses indicate what line of inquiry the citation pursues. The citations do not purport to be exhaustive, nor to be uniformly important. They are an attempt by the editors to pass on to student and teacher some of the leads which they have necessarily uncovered in a systematic study of cases and periodical literature over a period of years. We have continued and extended the comparison of foreign law solutions and the analysis of the economic and social functions of rules that characterized predecessor volumes of this book. The present volume is the second edition of ENTERPRISE ORGANIZATION (1972) which was a successor to the casebook known as BUSINESS ORGANIZATIONS, edited in 1965 by Conard and Knauss, and in earlier years (1950 and 1957) by Conard.
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Poems of Three Generations
Richard Stafford Cripps, Peggy Appiah, Kwame Anthony Appiah, and Abena Appiah
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Problems, Readings and Materials on the Lawyer as a Negotiator
Harry T. Edwards and James J. White
It is commonplace for law teachers to eschew any interest in answers and to present the students only with the questions. This book is no exception to that proposition. Negotiation is such a rich and varied process that it confounds attempts at useful generalization. Nearly all of the books that have been written about the process promise more than they deliver; either their statements about the art of negotiation are so general that they are not helpful or, if specific, are wrong at least with respect to some negotiations in some circumstances. Thus, we present an even weaker case than does the usual law professor; we not only disclaim any capacity to give the answers, we are not sure even that we have the right questions. The book is really a reader which can be used for a variety of purposes. We intend to use it in law school courses devoted exclusively to the study of negotiations. In Chapter 1 we present our arguments to support the proposition that something useful can be learned and taught about negotiations. We will not repeat those arguments here. The book can also be used for continuing legal education courses for lawyers and can serve for a portion of courses dealing with clinical law, labor law, trial practice and courses on the legal profession. For the most part, we believe that the book is best used in conjunction with the problems that are contained in the teacher's manual. Our experience suggests that a student's interest in and appreciation of negotiating problems is heightened by the kind of intense experience that a negotiation with his peers for a grade may present. In addition, of course, the book can be used simply as an introduction to the art of negotiation and to some of the literature concerning negotiation. Some may try to self-teach themselves; surely a careful consideration of these materials will add to one's negotiating skill even without the assistance of a formal course. The reader will find that the chapters are neither parallel nor symmetrical. Some are rather theoretical and others are only nuts and bolts. Some contain rather elegant analyses of the negotiating art; others are much more pragmatic and practical. We hope that the chapters on “Ethical Considerations for the Negotiator” and “Cultural Aspects of Negotiation” will cause the student to consider the variety of problems in those areas that he will face as a negotiator. We have found great difficulty in drawing the line between permissible puffing and impermissible lying in negotiating contexts. Our classroom experience suggests that every conscientious negotiator must eventually resolve the honesty question for himself. The materials presented in Chapter 8 present the lying issue in rather stark terms and should cause the student to come to grips with it. Of considerable and perhaps increasing significance is the question of cultural, racial and sexual bias. Of course such questions are two- fold. First one needs to consider how others will react to him be- cause of his sex, race, or cultural background, and second he needs to consider how that background has conditioned his own thinking and has made him a better or worse negotiator. This area has produced a large and conflicting folklore; here we do little more than scratch the surface on what we perceive to be a problem of extensive proportions. Finally, we hope that one who opens this book in the year 2004 will regard it as an outdated relic best left in the archives of legal literature. It is not our purpose here to offer a major theoretical or empirical study dealing with the art of negotiation. Rather, we have attempted to collect and comment upon some of the most significant works thus far produced in this field of study. We hope to stimulate lawyers', law teachers' and law students' interest in the art of negotiation and we look forward to the day when our understanding of the negotiation process will be much more comprehensive than it is today. We well appreciate that some of what we have done may appear clumsy or superficial; we do not apologize for it, for someone must start the process, and we will welcome those who can provide more and better insights.
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I'd Rather Do It Myself: How to Set Up Your Own Law Firm
Stephen Gillers
No one will understand the loneliness and the fears. Or, when it comes, the exhilaration. One morning in the second month you may leave for work morbid and depressed. You realize that you’re spending more time dreaming about clients than getting them. You are sure you are headed for economic ruin. But then, you return home thoroughly elated. A wholly unforeseen $3,500 retainer has fallen—a gift from heaven—unto your desk. A week later you are depressed again because a similar large fee has not unexpectedly turned up. You suddenly realize that in the past few days you’ve multiplied $3,500 by 53 weeks at least a dozen times. Your spouse, your parents, your children, your friends will all sympathize. They will tell you building a practice takes time, which, of course, you always knew but never appreciated. They will allay your fears and cheer away your depression. Or, at least, they will try. They will look sad when you are sad and happy when you look happy, even though they are never quite sure which it will be at any one time, or what it is that makes your moods swing from one extreme to that other in less time than it takes a certified check to clear. But, finally, no one, except perhaps a partner, if you have one, or another lawyer who has recently done what you are doing, will understand what is happening to your soul. This book will try to help. There are other cooks and articles on running law firms—mainly large ones—on financial management, on law office economics and so on. But there are very few books, if any, that discuss in intelligent detail the comparatively brief but so crucial period of time beginning about six months before you actually sent our your announcements and continuing through the end of first year or two of your own practice. This is a bit odd because established lawyers are often happy and eager to give advice to newcomers starting their own practice. Even lawyers with busy schedules will usually find time to tell the five or ten major lessons they learned—often the hard way—in their first year on their own. In fact, they will say how they wish there had been more people whom they could have asked and books they could have read. But then, sort of like the bar examination or the draft, once you get past it, you forget how strongly you once felt that something should be done to change it. So the information acquired by a new practitioner gets lost as he or she gets older and encounters the rush of a developing practice. It is passed on, if at all, only though a kind of piecemeal oral traditions that is often composed of facile and perplexing warning like “Don’t Take Anything That Comes in the Door” and “In The Beginning, I Charged Too Little.” I began my own practice in 1973 for reasons I will shortly discuss. They may or may not be your reasons. It doesn’t matter. Once you’re in, like a six-foot person in Seven feet of water, it’s less important how you got there than how you’re going to keep afloat. When I started, I talked to two or three others who had already done what I hoped to do, and I looked around for a book to tell me more. I found none. In the years since, I wrote three or four articles for the New York Law Journal and Juris Doctor about different aspects of going it alone (that is, all alone or with a partner or two, but without an “organization” behind you) and spoke to many others. I eventually came to feel that some of the ideas I had written about and much more that I had learned from friends should be put in a single accessible place. This is it. None of us knows everything there is to know about setting up one’s own practice, and we never will. Furthermore, despite the tendency to universalize one’s own experiences, I appreciate that my practice may be idiosyncratic and, in any event, is certainly not a model all should follow. I therefore rely quite heavily in the pages ahead on the experience, lessons and tales of others who have been gracious enough to provide me, through oral or written interviews, with an embarrassment of detail for this book. The book is as much theirs as mine. But even the combined wisdom contained here is not the “true” way to get into the law business. There will always be a people for whom a technique or approach long since rejected by conventional wisdom will nevertheless work handsomely. That does not mean you can skip over all the squares, go directly to Boardwalk and start building hotels. Even Picasso learned how to paint conventional pictures before he was able to change the rules. This book is written for you if you are in your first year or two of your own practice, or thinking about it. It does not matter if you are going to be an entertainment lawyer, a criminal lawyer or practice only before the United States Supreme Court. Lawyers starting their own firms of any kind will find much useful information here, most of it from others who have done the same thing. There are also pointers this book does not have. It does not have a list of the five best ways to keep your ledger books or the six mistakes never to make while negotiating a separation agreement. Your accountant will tell you how to keep your books, and there are enough treatises around to tell you about separation agreements. This book will, however, talk about the wisdom of having an accountant, and it will have something to say about buying treatises and having access to a law library. Nor will this book help you with questions that will arise only in the fifth year of your own practice or when you have nine partners (whichever comes first). By then your situations will have changed totally and your needs will be entirely different. What this book does try to do can best be illustrated with a brief story told by two friends of mine who recently left employed positions to open their own firm. In the first few months of practice many of their former colleagues came to visit, amazed at what they had done. My friends were bombarded with demands for information. One particularly inquisitive visitor began asking grandiose questions about capitalization, the partnership agreement, different fee arrangements and the like. When the tour of the office came to the supply room, the visitor immediately shifted his attention and asked, “How did you know what quality paper to buy?” The point is that when you first begin, there seems to be nothing but questions, needing quick answers, wherever you turn; and although the questions range from the grandiose to the mundane, they are all somehow crucial. You must know both wat kind of fee to charge and what kind of paper to buy. Suddenly, everything literally depends on the answer. “If I don’t know the kind of paper to buy, or the kind of photocopier to get or where to find a part-time secretary, then I can’t practice law. And, my God, I don’t know.” While I can’t promise to cover all the questions in either category—the grandiose or the mundane—I do hope to foresee many of them. But, far more important, I hope to convey an attitude, a way of responding to situations and thinking about your new position that will make many of the questions and answers fall more easily into place. The first chapter of this book discusses the first question one must ask when considering his or her own practice: What are the reasons to do it, and what are the reasons not to do it? The balance of the books is divided into seven chapters and seven broad subject areas: finances, including capital costs, overhead and possible income scenarios for the first year; feeing, a discussion of how to set a fair fee and get paid; clients, including how to get them and live with them (obviously you won’t live very long without them); the office, including selection of space, equipment and supportive services; operating procedures, a discussion of some fundamental office procedures to consider at the start, at least until you begin to develop your own system; structure of practice, including solo practice, partnerships and professional corporations; and, finally a chapter I have called Matters of Style and Substance. This latter chapter is a collection of some useful information, not easily categorized, which I have acquired or which has been passed on to me in the course of researching this book. One might think of the information here as the collected Old Wives’ Tales of private practitioners, but it is actually substantially less exotic and I hope more helpful. Some of the information concerns matters of style and some concerns matters of substance. It is a brief chapter of experiences that have been instructive for other and so worth passing on. This volume, and any future editions of it, is for lawyers from lawyers. It could not have been written without the generous contributions I have received from colleagues, some of whom have been acknowledged earlier. I conclude with a plea that you do for future readers what others have don for you and me. If you have or have had experiences in starting your own firm that you believe might be instructive or that contradict, extend or illuminate any of the advice given here, send them to me for use in future editions. Such material must be shared.
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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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