Faculty Books & Edited Works

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Sum and Substance of Civil Procedure

Jack H. Friedenthal and Arthur R. Miller

Prior edition of Sum and Substance of Civil Procedure.
Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830

William E. Nelson

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and judicial material for Massachusetts between 1760 and 1830 but also all available manuscript material, including unpublished judicial opinions, lawyers’ notes, and, most commonly, records of pleadings, judgments, and other papers incorporated into official court files.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

Jerome A. Cohen and Hungdah Chiu

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

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

Prior edition of Civil Procedure: Cases and Materials.
Pork Barrel Politics: Rivers and Harbors Legislation, 1947-1968

John A. Ferejohn

In the late summer or early fall, the Conference Report on the Appropriations Bill for Public Works is considered on the floors of the House and Senate. This bill contains the annual appropriations for the Bureau of Reclamation, the Atomic Energy Commission, the various power administrations and the river basin authorities, as well as the Army Corps of Engineers’ civil construction program. In every recent year the Corps of Engineers’ portion of the bill has contained funds for between 300 and 400 projects spread over perhaps 45 of the 50 states. Every year, too, the House and Senate between them have usually managed to add new Corps of Engineers projects to the public works section of the President’s budget (which has lately totaled around one billion dollars), increasing it by about half a billion dollars. The Public Works Appropriations Bills are criticized as “pork barrel legislation” by some and praised as “development bills” by others, but both groups appreciate the fact that these bills are made to a great extent in the Congress, principally in the various committees that share jurisdiction over the nation’s rivers, beaches, lakes, and harbors, and that over the years they can fairly be said to constitute the policy of the federal government in the area of water resources development exclusive of ware pollution legislation. Each year in the hearing before the appropriation committees and in the floor debates, the senior members of what might be called the water committees—men like Senators Ellender, Cooper, Randolph, Stennis, and Magnuson, and Representatives Kirwan and Evins—congratulate one another on the fine development bill they have produced and praise the worthy flood-control and navigation projects that will soon be built in Louisiana, Kentucky, West Virginia, Mississippi, Washington, Ohio, and Tennessee. The casual observer sees that, yes, the Red River (in Louisiana) has been programmed by the Senate committee with the concurrence of Congress to receive 100 million dollars over the next few years, and that there are ten to 15 projects receiving federal funds in Kentucky as well as large projects in Ohio and Washington. Members of the presidency, congressional opponents, and even some congressional supporters have referred to this bill privately as pork barrel, ad product of logrolling, a “Christmas tree” bill, and a boondoggle for certain powerful members of both houses. Yet each year a bill that looks very much like the one that passed the year before appears in the Congress and is passed without much general debate or comment on its propriety, though with considerable discussion of individual projects. The result is that more cement is poured, more rivers are dammed, and more streams are straightened. And everyone knows that it will all be about the same next year. Is this what really happens? Are a few powerful senators and congressmen actually able to treat the public purse as a development fund for their states or districts? After all, unless these people constitute the majority in the House and Senate, they can be prevented from regularly enacting such legislation by a majority of either chamber. Yet the process continues unchecked in the public works area. This study is an investigation of why such a system exists and how it functions in the federal government.
None of Your Business: Government Secrecy in America

Stephen Gillers and Norman Dorsen

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

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

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

Thomas Nagel, Marshall Cohen, and Thomas Scanlon

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

Thomas Nagel, Marshall Cohen, and Thomas Scanlon

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

Thomas Nagel, Virginia Held, and Sidney Morgenbesser

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

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

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

Stephen Gillers and Pat Watters

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

Sylvia A. Law and Burt Neuborne

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

Paul G. Chevigny

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

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

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

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

In this book we offer a unified introduction to the entire area of business and private organization, from the individual proprietorship to the corporation, and from the manufacturing concern to the social club. There are common elements of social policy and ritual formality involved in all these forms of effort. To study them together effects not only a saving of time, but also a broadening of perspective and a deepening of understanding. The combination not only embraces the traditional subjects of “agency,” “partnership” and “corporations,” but also affords glimpses of unions and sodalities which are likely to escape all notice when study is packaged in the curricular capsules sanctified by a century of legal education. Obviously, this book is a compression—a painful one—of a series of subjects each of which cries out for fuller explanation. The compression is in part a response to the pressures of new subjects and new activities in legal education. On the one hand there is a burgeoning of interdisciplinary studies in economics, psychology, sociology and survey research techniques. On the other, there is the rise of practically-oriented activities such as clinics, legal aid and defender programs, and statutory drafting. Some schools have responded to this pressure by simply not teaching the classic problems formerly covered by courses in “agency” and “partnership” and simultaneously ignoring the more current problems in these areas: licensing, fiduciary and ethical problems of business relationships, and limitations on the free employment concept. We have chosen not to ignore these matters, nor to assume that our students would sense instinctively the inherent complexity and the universality of the problems of employment. Can such an assumption survive in the mind of one who has read Justice Holmes’ demonstration that “common sense is opposed to the fundamental theory of agency”? Yet to retain the classic subjects in their classic elaboration, and at the same time to offer a full-scale coverage of the law of corporations, would require some six to eight semester-hours of teaching. The student not specializing in the field should not have to sit so long to acquire a broad view of the organization of enterprise. We have provided an alternative through this condensed treatment, which transports the student through the formative stages of business licensing and regulation, and equality of access to business opportunity; operational questions of enterprise liability for personal and property injuries, employment, representation in business dealings, and fiduciary duties; and organizational issues of formation and financing of partnerships and corporations, financial and control structures, federal securities legislation, and corporate distributions and reorganizations. Along the way are substantial discussions of such issues as the scale of individual, partnership and corporate enterprise; corporate responsibility; and control of enterprises through institutional investment. Our aim is to provide in a single four-semester-hour course a survey of enterprise organization, in enough scope and detail so that the student will be able to recognize and address the problems that he encounters later in his career, whatever his career choice. For those who intend to advise enterprise owners and managers or legislators attempting to control their activities, this survey is only a beginning. Indeed, for such students an introductory course or courses, whatever the title, can never be enough. These materials provide the base on which courses in “investment securities,” “business planning,” “corporate responsibility,” and “multinational enterprise” can be built. Such subjects, involving heavy clinical or interdisciplinary inputs, can only be hinted at in these materials. Our compression, however, makes it possible for the student to reach these courses-possibly several of them--earlier in his law school career. In deciding what a potential lawyer needs to know about enterprise, we have taken a broad view. We start out with the necessity for a license in most of the kinds of business anyone would wish to pursue; this subject has particular relevance to the self-employed “individual proprietor,” whose numbers (in the millions) deserve some wisp of attention in the law school. We include cases involving the impact of labor legislation on business enterprise, and decisions on responsibilities in non-profit membership organizations such as the United Mine Workers and the NAACP. These, too, are “enterprises.” We have realized some economies through simultaneous treatment of common problems of proprietors, partners and corporations. There are not three sections on vicarious tort liability, but just one; there is one exposition, not three, of the inherent or apparent authority of business managers. Fiduciary duties by whatever name called are all merged in a single section. We have continued and extended the comparison of foreign law solutions and the analyses of economic and social functions of rules that characterized predecessor volumes to this book. It hardly needs to be said that the present volume is a successor to the casebook known as “Business Organization” edited in 1965 by Conard and Knauss, and in earlier years (1950, 1957) by Conard. Users of those books will find familiar terrain after they traverse the initial chapter, and they will find a common thread of analysis and approach in the new materials at the end of the book.
Unquestioning Obedience to the President: The ACLU Case Against the Illegal War in Vietnam

Leon Friedman and Burt Neuborne

This book contains the legal documents in two related cases challenging the constitutionality of the Vietnam War. Congress was deceived about plans to bomb North Vietnam as early as Feb., 1964. Thus the period of congressional deception by the Executive branch lasted from early 1964 until the summer of 1965, when American ground troops began to arrive in force in Vietnam. At that point a new relationship between the President and Congress was created, lasting from May, 1965 until the middle of 1969. This second phase consisted of Congressional acquiescence in military actions in Vietnam. Once the President had secured the Gulf of Tonkin Resolution and commenced the rapid escalation of the war, he thought he would have no difficulty in persuading Congress to pay the increasing bills for the war. He knew that Congress would find it impossible to deny funds for military supplies needed to supply and protect troops in the field.
China Trade Prospects and U.S. Policy

Jerome A. Cohen, Robert F. Dernberger, and John R. Garson

Few problems in the realm of international relations have seemed more tenacious and complex than that involving relations between the United States and mainland China. The Communist government has now existed for more than twenty years, and during that time America’s contacts with the people of China have been minimal. In recent years, the United States has made certain overtures to the People’s Republic of China, suggesting new possibilities for the future. Thus far, those overtures have been largely ignored. No one can doubt, however, that his is a transitional era for China, with an aging group of leaders dominated by the single figure of Mao Tse-tung now reaching the end of their long tenure in power. In less than ten years, China will be led by men whose names we cannot possible predict today, and their policies, both domestic and foreign, may well determine whether it is to be peace or war for Asia. It is in this context that the National Committee on United States-China Relations began its efforts in 1966. Ours is a non-partisan group composed of individuals taking a wide range of positions on substantive issues. Our central purpose is to explore in as objective and rational a manner as possible all aspects of “the China problem,” including domestic trends in mainland China and various U. S. policy alternatives. In a period marked by extensive emotionalism and when China once again threatens to be used as a tool for internal political purposes, we seek to keep the level of dialogue as high as possible, permitting all positions to be heard. One issue of possible future importance is that of trade between the United States and the People’s Republic of China. As is well known, our government has recently initiated certain modest changes of policy in this respect. It therefore seems appropriate to explore various aspects of this subject at this time. We are particularly fortunate in having Professor Alexander Eckstein supervise and direct these studies and in having the research services of Jerome A. Cohen of the Harvard Law School, Robert F. Dernberger of the University of Michigan, and John R. Garson of the law firm Bingham, Dana and Gould. Each has contributed a major paper on aspects of U. S.-China trade. (The views expressed by them are entirely their own and do not represent those of the National Committee.) The presentations of these three specialists formed the basis for two initial study sessions in New York City, built around a seminar composed of about thirty leading businessmen, government representatives, economists, and scholars, who examined their content in depth. W. Michael Blumenthal, President of Bendix International, chaired the sessions; he was remarkably effective in focusing the group’s attention on the crucial substantive issues. The sessions were so successful that we subsequently held two full-day seminars, the first in San Francisco under the chairmanship of William Roberts, President of Ampex Corporation, and the second in New York under the chairmanship of John Diebold, Chairman of Diebold Group, Inc. At both sessions, general background briefings were set forth and presented to invited representatives of leading corporations. I should reiterate that these sessions were not designed to create support for any single policy, nor did the participants hold a single point of view. Rather, the meetings were in line with the general purpose of the National Committee—to study seriously all issue having to do with China and U. S.-China relations. If these sessions accomplished that purpose, as I believe they did, we are greatly indebted to those who supervised and chaired them, to those who prepared the major papers, and to those who took time from busy schedules to participate in the sessions themselves. We feel that the research papers are sufficiently interesting and important to be presented to a wider audience. Hence, we are making them available in this volume with the hope that they will stimulate the same type of informed discussion that was initiated in San Francisco and New York.
Getting Justice: The Rights of People

Stephen Gillers

This modest book is meant to give nonlawyers (and lawyers unfamiliar with the area) an introduction to the what and why of the criminal process. These are the things I wanted to know about before law school, but about which I could find no basic book to tell me. I have tried, therefore, consists with accuracy, to be simple and straightforward.
The Assault on Privacy: Computers, Data Banks and Dossiers

Arthur R. Miller

Have you ever applied for credit, taken an aptitude test, filled out a government form, or completed a job questionnaire? Then a detailed profile of your financial dealings, friendships, political beliefs, sexual habits, and personality "quirks" may be stored in a computerized dossier - a dossier which is not open to your inspection. ITEM - The Associated Credit Bureaus of America maintains files on approximately one out of every two Americans. ITEM - The Army records information on the lawful political activites of numerous U.S. citizens. ITEM - In one year, the Pacific Telephone and Telegraph Co. monitored 27 million private telephone calls in California. "No people in the world," writes distinguished authority on computers and the law Arthur R. Miller, "are scrutinized, measured, counted, and interrogated by as many poll takers, social science researchers, and government officials as are Americans." Vast quantities of data are indeed necessary to the smooth functioning of a modern society. But vast quantities of data - indiscriminately collected, carelessly verified, and stupidly or malevolently utilized - can destroy the concept and the right of personal privacy as we know it. The Assault on Privacy is a startling and thoroughly documented account of the uses and abuses of the new information technology. Citing many actual cases, Professor Miller surveys the diverse areas in which personal privacy is seriously threatened. He reveals the inadequacy of present laws concerning privacy, and he details the strong steps necessary to ensure protection for every individual. In his authoritative dissection of the computerized assault on privacy, the author provides us with a pioneering work of prime importance.
A Theory of Reasons for Action

David A.J. Richards

This work is an attempt to offer, in an exploratory and constructive spirit, a systematic account of the concept, reasons for action. The main thesis of this study is that there exists an adequate and true theory of the meaning of sentences using ‘reasons for action’ and related terminology—a theory which analyses or elucidates their meaning in terms of certain propositions (which may be truly or falsely asserted), which provided an account of the use of these sentences in performing various acts by speech (e.g. advising), and which clarifies the moving appeal to action which the utterance of these sentences often, or typically, has. Coherent with this general thesis, the work has the theoretical objective of presenting a plausible (not necessarily a true) formulation of such a theory, so that at least some good constructive reasons will have been giving for others to work further in developing a more accurate expression of the truth which is here perhaps only dimly perceived and incoherently expressed. Consonant with the book’s general thesis and theoretical objective, an attempt is made to formulate a structure of principles which will account for reasons for action associated with the concept of rationality (Prat I) and with the concept of morality (Part II). In both parts of the book, the same constructive pattern of argument is systematically applied. First, principles are formulated and explained. Secondly, an attempt is made to show how these principles clarify propositions which certain ‘ought’, ‘under and obligation’, ‘there is good reason’, etc., sentences express. Thirdly, an explanation is sketched regarding how the propositional account elucidates the use of these sentences in accomplishing the various characteristic speech acts that they do accomplish. And fourthly, an attempt is made to explain and clarify the moving appeal to action which the utterance of these sentences typically possess. Throughout, the orientation of this work is tentative and exploratory. No claims to finality or conclusiveness are made. Rather, a general approach to doing normative philosophy is suggested , one which re-examines and questions the fruitfulness of sharp divisions between analytic and substantive inquiries. The reader is invited to consider whether and how this approach may be usefully developed further.
Statistical Analysis of Economic and Financial Data

Daniel L. Rubinfeld
Contemporary Chinese Law: Research Problems and Perspectives

Jerome A. Cohen

Recently scholars have become increasingly aware that the study of Chinese law can provide new insight into the forces actually at work in Chinese society in different epochs. In an effort to encourage and facilitate the study of this subject, the thirteen essays of this volume deal with the methodology of studying the legal system of the People's Republic, describe the available research materials, and analyze the problems presented in making the materials of Chinese law intelligible to Western readers. Recently scholars have become increasingly aware that the study of Chinese law can provide new insight into the forces actually at work in Chinese society in different epochs. In an effort to encourage and facilitate the study of this subject, the thirteen essays of this volume deal with the methodology of studying the legal system of the People's Republic, describe the available research materials, and analyze the problems presented in making the materials of Chinese law intelligible to Western readers. They also review foreign works on Chinese law and explore the difficulties involved in translation and in comparing the Chinese system to our own and to that of the Soviet Union. Mr. Cohen's thoughtful introduction provides an excellent survey of the worldwide development of studies of Chinese law. It also delineates the nature of the essays that he and the eleven other scholars have contributed to the volume.
The Dynamics of China's Foreign Relations

Jerome A. Cohen

Even before the Great Proletarian Cultural Revolution burst upon the scene in 1966, students of Chinese foreign policy were struggling to explain what many perceived to be the beginning of a decline in Perking’s international position during the 1960s. Was it wise for China’s Communist leaders to permit their country to become profoundly alienated from its Soviet elder brother? What was the rationale for China’s virtually simultaneous loss of friendship of India, the other major state with which it shared an extensive territorial boundary? Why, especially in view of the Sino-Soviet dispute, had Peking not responded to the modest initiatives belatedly taken by Washington to moderate the legacy of Sino-American hostility bequeathed by the 1950s? How should one interpret the PRC’s generally unsuccessful efforts to sow revolution in the fertile soil of Africa, Asia and Latin America? An obvious theme of such inquiries concerned the extent to which the apparent deterioration of China’s relations with a given country or area reflected factors peculiar to the relationship involved rather than factors common to the overall conduct of China’s foreign policy. Understandably, the advent of the Cultural Revolution and the more strident policy that Peking adopted toward most countries during that period made it tempting for observers to emphasize the new “general line” rather than the particular features of its application to concrete situations. Now that the paroxysm has passed, and Peking has begun to moderate certain aspects of its foreign policy again, it seems useful to devote further attention to case studies of China’s foreign relations that reveal the dynamics of China’s unique interaction with different areas and that adopt time frames of sufficient duration to permit us to view recent events in appropriate perspective. This, at least, is the premise upon which the following essays rest. They seek to examine specific problems that the PRC has encountered in some of the principal areas of the world with which it is concerned and to place those problems in the broader context of the PRC’s overall relationship to each area. All but one of these essays were originally prepared for presentation at the annual meeting of the Association for Asian Studies, held in San Francisco, April 3-5, 1970. In the first essay, Professor George Ginsburgs, of the Graduate Faculty of the New School for Social Research, analyzes the nature of the Sino-Soviet dispute over certain islands in the Amur and Ussuri Rivers, the evidence of the armed clashes to which it has given rise, and the reasons that each side may have had for instigating those clashes. After scrutinizing the subtleties and style of the debate, Professor Ginsburgs concluded that the dispute over the islands has contributed relatively little to Sino-Soviet hostility and that it is unlikely either side wishes to go to ware over so trivial an issue; nonetheless, each fins it advantageous to maintain its participation in a carefully calibrated contest over the islands. The consequences of border clashes with India that actually developed into serious conflict in 1962 constitute the subject of Professor Arthur A. Stahnke’s study of Chinas’ policies toward the South Asian subcontinent during the past decade. Professor Stahnke, of the Government Department of Southern Illinois University (Edwardsville), reviews the PRC’s support for Pakistan as part of its effort to isolate India diplomatically, and traces the successful comeback that India staged with the aid of the Soviet Union and the United States, which minimized the significance of Pakistan’s friendship with China and isolated the PRC. Professor Gene T. Hsiao, a colleague of Professor Stahnke at Southern Illinois University, explores the more unconventional triangular relationship that exist among Peking, Tokyo and Taipei. Focusing on the specific problem of trade, he describes Chinese Communist attempts to exact political gains from a Japan that enjoys the best of both Chinese worlds by doing business with the mainland, which it refuses to recognize diplomatically, as well as with Taiwan, which it continues to recognize. This account makes clear the relativelyhigh degree of flexibility and toleration with which, during most periods, Peking has reacted to Japan’s dexterity in steering between the two sides of the Taiwan strait. If the PRC has sometimes been willing to subordinate politics to economics in its relations with Japan, my own study of Peking’s attitude toward trade with the United States reveals no similar ambivalence. During the mid-1950s, when the new revolutionary regime persistently sought to persuade Washington to establish a variety of contacts with it and thereby gradually enhance its legitimacy, as one of the steps on the route to normalization of relations it tried in vain to eliminate the American embargo. In 1960, however, the PRC abandoned this unsuccessful gradualist approach as a “waste of time” and announced that the reestablishment of trade and other contacts would have to follow rather than precede resolution of the major political questions plaguing Sino-American relations. Thus, during the past decade, when it was the United States that adopted a gradualist approach and sought to establish contacts with china, including limited trade, Washington was consistently rebuffed by Peking, which preferred to await the withdrawal of American support from the Nationalist government on Taiwan and a return to the American (pre-Korean war) positions that Taiwan was part of China. The two final essays in this volume discuss Chinese policy toward Africa and Latin America, areas which, in the early 1960s, the PRC regarded as ripe for revolutionary change. Professor George T. Yu, of the University of Illinois, summarized the intensive and frequently effective PRC activity in Africa from 1960 to 1965, and the subsequent overall decline of Peking’s influence despite continuing success with a few governments and with national liberation movements in several other countries. In evaluating China’s ability to compete with the USSR and the United States in Africa, he concluded that China has been severely handicapped by its limited capacity to provide economic aid. Nevertheless, as the case of Tanzania indicates, the PRC owes its success in several countries to skillful use of its small aid program, combined with deft political maneuvering. Elsewhere, especially among the suppressed black majorities of Southern Africa, its anti-status quo orientation and its support of the doctrine of revolutionary armed struggle have proved its most reliable assets. Daniel Tretiak, senior political scientist of the Advanced Studies Group-Westinghouse, explains China’s lack of success in fomenting revolution in Latin America in terms of a classic pattern of interaction that he discerns between a new revolutionary nation-state and, on the one hand, the principal status quo members of the international community, and, on the other, revolutionary leaders in foreign countries governed by nonrevolutionary regimes. The high level of verbal support Peking gave to revolutionary leaders in Latin America reinforced the cycle of mutual hostility existing between revolutionary China and status quo United States. But it also reinforced the foreign revolutionary leaders’ expectations of substantial material aid from China, expectations that were doomed to disappointment because of the revolutionary nations-state’s need to give higher priority to other demands upon its scarce resources. Moreover, despite the low level of actual support it offered and despite that fact that contemporary Latin American conditions differ markedly from earlier Chinese conditions, Peking sought to impose the Chinese revolutionary model upon foreign revolutionary leaders. The Chinese indeed seem to have demonstrated as little sensitivity and understanding toward social revolutionaries seeking national independence in Latin America and the Soviet Union did in a previous era in China. The dominant theme common to these essays is largely implicit. Although three years of Cultural Revolutions had an immediate and damaging impact upon China’s relations with many countries, one can infer from these essays that this was not invariably the case and that, at least with respect to the particular areas studied, the long-range effects of the Cultural Revolution are likely to be relatively inconsequential. During the Cultural Revolution China’s foreign policy leaders seemed to be engaged in a systematic attempt to alienate most of the world, an attempt that enabled both the American and Soviet propaganda machines to foster the image of an elite gone mad. Yet this volume, written in early 1970, less than a year after the Cultural Revolution can be said to have ended, conjures a very different image of Chinese statesmen. It suggests that they can be farsighted or fallible, militant or flexible, subtle or insensitive, skillful or inept. But nowhere in this collection is there evidence that they are irrational, and perhaps the clearest impression is that, rhetoric to the contrary, they are a very cautious lot.
The Possibility of Altruism

Thomas Nagel

Just as there are rational requirements on thought, there are rational requirements on action. This book defends a conception of ethics, and a related conception of human nature, according to which altruism is included among the basic rational requirements on desire and action.