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Torts
Sylvia A. Law
Tort law determines when a person who suffers injury can obtain redress from the actor who caused the harm. Torts are private legal actions in which one person seeks a remedy, usually money, for damages caused by another. As Professor Hughes observes in Chapter 1, tort law is the classic common law subject, developed by judges in the context of resolving concrete disputes. The common law tradition is built upon social custom and experience, rather than upon abstract ideals or universal principles. The creation of tort law is highly decentralized and dynamic. Diversity amongst the states is far greater in tort law, than, for example, in contracts or criminal law, where national uniform acts and model codes, promulgated by national professional associations and adopted by state legislatures, now dominate the law. The harms people cause one another are as diverse as human experience. The losses currently protected by American tort law include injury to life, health, family members, physical integrity, property, peace of mind, reputation, procreative capacity, and opportunity for advantageous trade relations. The concept of injury, like all of tort law, varies from state to state, and it has contracted and expanded in response to changing social experience and perception. The central question in each tort case is: ‘when should the law require people to pay for injuries they cause to others?’ In answering that question, the law takes into account the many purposes served by tort liability including: (a) compensation for the person injured; (b) deterrence of accidents or behavior thought to be socially unreasonable; (c) assigning costs of accidents to the activities that generate them; (d) social recognition of moral right and wrong. These objectives of tort law often conflict. If compensation is the primary goal, the law should not necessarily care whether or not the actions causing the injury were reasonable or moral. A child injured at birth is no less deserving of compensation to care for her in the future because the doctors and hospital exercised great care than if they acted carelessly. In either case, someone will have to bear the costs; the question is who should it be. If compensation is our sole social purpose, it is probably more efficiently achieved through social insurance. Conversely, if deterrence of unreasonably risky behavior is the law's primary goal, social response should turn on the probability of injury rather than the happenstance of whether the injury happens to be unusually grave or fortunately trivial. Further, all of the reasons supporting tort liability conflict with a social desire to promote enterprise, innovation, and economic progress, free from excess concern about potential liability for injury to others. Although most tort law is developed by judges in the process of deciding disputes about particular injuries, legislatures, both state and federal, also contribute to the development of tort principles in several ways. First, legislatures set regulatory or criminal standards for reasonable behavior, and those standards are adopted by common law courts. For example, at one time there were no fixed speed limits for carriages and autos. Common law judges and juries made individualized determinations about what was reasonable in all circumstances. As state legislatures adopted rules for the regulation of traffic, common law courts used those legislative rules to determine what was reasonable. Legislation impacts on tort law in yet a second way. Legislatures can reverse common law courts' judgments, rejecting either particular rules or supplanting a whole area of the law. For example, as we discuss later, in the 1920s most state legislatures rejected the common law approach to workplace accidents and substituted an administrative system of workers' compensation. In the federal system, Congress can override both state legislatures and state courts. For example, when Congress sought to promote the private development of nuclear power, it encouraged business to undertake this project by providing a system of limited no-fault compensation to replace state tort liability. For another example, when Congress requires uniform federal warnings about the dangers of particular products, it sometimes preempts state laws that impose different warning requirements. American tort law includes three basic types of conduct giving rise to liability: negligence, intentional torts, and strict liability. In each area, tort law has been an historic battlefield of changing social concepts of a good society and strong economy. While the branches intertwine, each classically grapples with particular questions, and each typically is invoked to deal with distinctive human problems. The rest of this chapter will discuss these three major branches of tort liability and then consider some contemporary disputes about tort law.
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Comments on Rajan and James
Geoffrey P. Miller
Rajan’s chapter extends the author’s prior theoretical and empirical work on bank entry into the securities business. Here, he offers a balanced and thoughtful account of the normative case for and against such entry. To his credit, Professor Rajan avoids the temptation to support one side or the other in this debate. Theoretical arguments can be developed both for and against universal banking, but everything depends on the magnitude of the effects, and on this, Rajan observes, we have very little evidence. Legislatures and courts, unlike scholars, must have a bottom line—whether or not to permit a form of universal banking in the United States. Professor Rajan’s recommendations seem eminently sensible. In the United States, with a highly efficient economy—and, I would add, an effective and vigorously enforced antitrust policy – there is no need to limit bank entry into securities (putting aside the “too big to fail” problem). If universal banking is not efficient, it will not survive in the competitive marketplace. On the other hand, in developing economies, Professor Rajan observed that one cannot necessarily rely on market forces to generate efficient outcomes. He suggests that the better approach might be to start out with specialized banks in order to allow the development of a vigorous, competitive, independent securities industry. It should be noted that Professor Rajan’s tentative endorsement of universal banking in the United States would not appear to require significant changes in governing law. His concern is for securities firms making commercial loans, and there is nothing in the Glass-Steagall Act that prohibits such an activity. The Glass-Steagall Act regulates overlaps between deposit banking and securities underwriting, but does not prohibit securities firms from making loans.
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Settlement of Litigation: A Critical Retrospective
Geoffrey P. Miller
“If someone sues you, come to terms with him promptly while you are both on your way to court; otherwise he may hand you over to the judge, and the judge to the constable, and you will be put in jail. I tell you, once you are there you will not be let out till you have paid the last farthing.” Matthew 5:25 Few topics in the area of civil procedure arouse greater interest, or stimulate more ingenuity in the design of legal rules, than settlement of litigation. As the costs of litigation have grown, settlement outside of court becomes more appealing. If only parties could be induced to resolve their disputes privately, social resources could be directed to purposes more useful than litigation. Settlement is cheap; litigation is expensive. Since both accomplish the same result – resolution of a controversy between parties – proper social policy would seem to encourage settlement and discourage litigation. As illustrated by the quotation from the gospel, the desirability of settlement has been recognized for thousands of years. Yet parties continue to bring lawsuits and to carry them through to final judgment by a judge or jury, notwithstanding the costs they incur by doing so. Why do more cases not settle, and what, if anything, should the legal system do to induce a higher rate of settlement? The present article examines these questions by means of a review of current literature in the economics of civil litigation. Part I of the paper introduces the standard economic model of litigation developed over the past twenty years. Part II considers possible reasons why cases do not settle despite the implication of the standard model that parties can ordinarily make themselves considerably better off by settling rather than going to trial. Part III addresses the public policy considerations for and against settlement. Part IV considers a number of existing or proposed devices designed to enhance the probability of settlement.
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Universality and the Reflective Self
Thomas Nagel
Christine Korsgaard has provided us with an illuminating analysis of the problem of the normativity of ethics. She observes that it is the reflective character of human consciousness that gives us the problem of the normative—the fact that unlike other animals, we can fix our attention on ourselves and become aware of our intentions, desires, beliefs, and attitudes, and of how they were formed. But it is not awareness alone that does it; a further aspect of our reflective consciousness is involved, which can appropriately be called freedom. Here is what she says: “Our capacity to turn our attention on to our own mental activities is also a capacity to distance ourselves from them, and to call them into question . . . Shall I believe? Is this perception really a reason to believe? . . . Shall I act? Is this desire really a reason to act?” The new data provided by reflection always face us, in other words, with a new decision. The normative problem does not arise with regard to everything we observe about ourselves: we cannot decide whether or not to be mortal, for example (though we may have to decide how to feel about it). It is only beliefs, and acts, or intentions that face us with the problem of choice, and it is in our response to this problem that values and reasons reveal themselves. Korsgaard's account of the normativity of ethics, and her criticisms of rival accounts, appear within the framework of this conception of the human mind and the human will. I should like to explore her view by considering how she would answer the following three questions, which the reflective conception naturally poses: 1 Why does the reflective self have to decide anything at all, either granting or withholding endorsement, instead of remaining a passive observer of the beliefs and actions of the non-reflective self? 2 Why, when it decides, must it try to do so on the basis of reasons, which imply generality, or something law-like? 3 How does it determine what those reasons are? The third question of course comprehends all of moral theory and epistemology, but I plan to discuss only the general character of the answer.
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Property
William Nelson
The United States is thought to be a nation in which private property is scrupulously protected from public seizure and control. However, much of the law of property, and hence this chapter, focuses on the powers of government that have the potential to erode that protection. Both federal and state constitutional law give government extensive power over private property. Moreover, state and local governments with some frequency have enacted legislation extending their power to its limits. After fully exploring the breadth of government's power, we shall return at the end of this chapter to the means by which property rights are protected. Government, as we shall see, can exert power over property in three different ways. First, it can impose a tax on property. Real property taxes, in fact, constitute an important form of taxation in America, where most local governments derive the largest portion of their revenue from taxes imposed on lands and buildings within their jurisdiction. Secondly, government may use its power of eminent domain to seize individual pieces of property needed for public purposes, as long as it pays just compensation to the owner. Thirdly, government has enormous power to regulate how owners use their property. This chapter is structured around an analysis of each of these three powers: taxation, eminent domain, and regulation. Before turning to the law of real estate taxation, however, it is necessary to make a few preliminary observations about who can own interests in property and about the nature of the interests they can hold.
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Taxation
Deborah H. Schenk
In the United States, taxes are imposed at multiple levels for a number of purposes. The government levies the vast majority of taxes in order to provide revenue to operate. But the tax system also can be utilized to compensate the government for using certain of its facilities (‘user fees’), to provide incentives to engage in certain activities, or to penalize those who take certain actions. The federal government of the United States is the world's largest taxing authority, raising hundreds of billions of dollars in taxes every year. The chief source of revenue is the federal income tax imposed on individuals and certain entities. Other federal taxes include estate and gift taxes, excise taxes, and social insurance taxes. The latter, which is now 15.3 percent of salary (one-half paid by the employer and one-half paid by the employee) is used to fund the social security program, to which all employees and employers contribute to provide retirement security and medical insurance. Excise taxes are imposed on many goods, such as tobacco, alcohol, gasoline, telephone service, airplane tickets, and luxury goods. Although a gift tax theoretically is levied on all completed gifts, and an estate tax is levied on the value of property transferred at death, there are very large exemptions, and, thus, those taxes apply only to the very wealthy. Unlike many other industrialized countries, the United States does not have a value added tax. It also does not levy a property tax, a wealth tax, or a sales tax. Each of the fifty states has the power to tax. Most states have an income tax similar to the federal income tax. In addition, many states also impose real property taxes, excise taxes, inheritance taxes and sometimes wealth taxes. State sales taxes are also a significant source of revenue. Many large cities also impose income taxes, as well as sales taxes. Each state or city can impose its own taxes as well as develop its own rules. Most states also tax corporations. Sometimes the tax is an income tax, but often it is a franchise tax, based on the right to be chartered in the state. Although taxes at all levels are significant and may affect how and where business is done, the federal income tax is the most important. It affects not only all United States citizens, residents, and businesses, but also foreign individuals and businesses who have some connection with the United States. Thus, most of the remainder of this chapter is devoted to that tax. The federal estate and gift taxes, which impose taxes on transferred wealth, are described in section XII below.
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Confessions and the Court
Stephen J. Schulhofer
In a series of cases beginning in 1936, the Supreme Court held that the admission in a state criminal trial of an “involuntary” confession violates due process. The early cases required exclusion of such confessions primarily (and perhaps exclusively) because of their unreliability, but as the course of adjudication proceeded, it became clear that confessions would be held “involuntary” and hence inadmissible, even when their reliability was clearly established. Indeed in 1961, in Rogers v. Richmond, the Supreme Court held that a court assessing a voluntariness claim could not even consider the fact that the police tactics would not tend to produce a false confession. The Court did not, however, get very far in its efforts to articulate precisely what factors did render a confession involuntary or what policies supported the exclusion of involuntary confessions. The opinions condemned “overbearing the will,” as revealed by “the totality of the circumstances.” They justified the condemnation as a response to “fundamental unfairness” or because “ours is . . . not an inquisitorial system.” There was virtually nothing more to go on. In 1961, Justice Frankfurter, in an ambitious attempt to lay bare the fundamentals, identified two competing policies: first, that “questioning suspects is indispensable to law enforcement” and thus “whatever reasonable means are needed to make the questioning effective must be conceded to the police”; but second, that “the terrible engine of the criminal law is not to be used to overreach individuals who stand helpless against it. . . . [M]en are not to be exploited for the information necessary to condemn them. . . . He described the voluntariness test as an effort to strike a balance between these two opposite “poles.” Adding up the diverse strands of criticism developed by [Yale] Kamisar and others, one finds roughly six defects in the due process voluntariness test: 1. The standard left police without needed guidance. Because of its vagueness and its insistence on assessing “the totality of the circumstances,” the voluntariness standard gave no guidance to police officers seeking to ascertain what questioning tactics they could use. Indeed, at the critical point when the police sensed that a suspect was about to “crack,” they were enjoined to be on guard against both “overbearing the will” and losing their chance by lessening the tension or pressure; in many common situations the message of the due process test was not just vague but inherently contradictory. Under these circumstances, moreover, exclusion of improperly obtained confessions was an unsatisfactory remedy: the defendant's physical or psychological injury was not redressed, the exclusion did virtually nothing to deter similar police abuses in the future, and society lost the benefit of a statement that might have been obtained anyway had the police been forewarned to avoid the tactics eventually ruled improper. 2. The standard impaired the effectiveness and the legitimacy of judicial review. The vagueness of the voluntariness test spawned several interrelated difficulties for the courts. Not only were conscientious trial judges left without guidance for resolving confession claims but they were virtually invited to give weight to their subjective preferences when performing the elusive task of balancing. Judges unsympathetic to constitutional values, or concerned about the release of a dangerous offender, might not adhere to the evolving constitutional standard. Appellate courts theoretically could correct erroneous trial court judgments, but similar attitudes inclined many appellate judges to permit interrogation tactics that should have been condemned under applicable Supreme Court precedent. The ambiguity of the due process test and its subtle mixture of factual and legal elements discouraged active review even by the most conscientious appellate judges. Moreover, when higher courts did attempt to address confessions questions, they found themselves so wholly at sea that the appearance of principled judicial decision-making inevitably suffered, whether or not they chose to hold the confession inadmissible. The Supreme Court, which has special reasons to guard the objectivity and perceived legitimacy of its processes, was particularly vulnerable to institutional damage on this ground. Had the Court been willing to hear more confessions cases, the threat to its legitimacy and prestige probably would have been aggravated by the very actions that were at the same time necessary to exert more effective control over the lower courts. 3. Application of the standard was fatally dependent upon resolution of “the swearing contest.” Even if the content of the voluntariness test had been more precise, its application would remain dependent on fact-finding about events that inevitably occurred in secret, with the suspect isolated and often disoriented, distraught, or confused. At trial, there was little to prevent police from describing the interrogation in terms consciously or unconsciously slanted to favor admissibility of the confession. The defendant could do little more than present his version, leaving it to the judge or jury to decide the relative credibility of the two sides to this “swearing contest.” And there was next to nothing to prevent judges and juries from systematically resolving credibility issues in favor of the police. Under these circumstances no one could know whether the “facts” evaluated in court corresponded to the events that actually had occurred in the interrogation room. 4. Considerable interrogation pressure was allowed. Although the amount of pressure to confess tolerated by the courts seemed to be steadily diminishing, the voluntariness test clearly did authorize considerable pressure. Indeed, the conception of voluntariness indirectly encouraged police to pressure suspects because it viewed police efforts to persuade a reticent suspect to talk as legitimate and highly desirable. Of course, defenders of the voluntariness test did not regard this particular feature as a defect. But for those who supported the principle of the fifth amendment privilege against compulsory self-incrimination, and who failed to see why “compulsion” within the meaning of the privilege should be narrowly defined as a formal, legal obligation to speak, the allowance of substantial police pressure under the voluntariness test was anomalous and wrong. 5. The weak were manipulated. The voluntariness test ostensibly took account of special weaknesses of the person interrogated, but because it did permit the use of substantial pressures, suspects who were ignorant of their rights, unsophisticated about police practices and court procedures, easily dominated, or otherwise psychologically vulnerable were more likely to be on the losing end of a successful police interrogation. Indeed even in theory, the voluntariness test favored the more sophisticated suspect because it probably did not permit greater-than-average pressure against the stronger- than-average defendant. The appearance of advantage for the more sophisticated took on overtones of discrimination against racial minorities or the poor. The point was . . . that we do (and should) find it unseemly for government officials systematically to seek out and take advantage of the psychological vulnerabilities of a citizen. 6. Physical brutality was not adequately checked. Of course, the voluntariness test prohibited physical violence and other extreme forms of abuse. But by permitting the use of “some” pressure, this approach encouraged the questioning process itself. Indeed, while courts occasionally mentioned a preference for evidence produced “by the independent labor of [police] officers,” the voluntariness test reinforced the idea that an effective police officer is one who succeeds (by “fair” means) in obtaining a confession from the suspect. Unfortunately, after several hours of questioning, “slowing mounting fatigue does . . . play its part” in weakening the officer. It should not have been surprising that sincere, dedicated investigators, intent on solving brutal crimes, occasionally lost their tempers.
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Plea Bargaining as Disaster
Stephen J. Schulhofer
Constitutional and doctrinal objections aside, plea bargaining seriously impairs the public interest in effective punishment of crime and in accurate separation of the guilty from the innocent. Unlike most defenders of American plea bargaining, Dean Robert Scott and Professor William Stuntz acknowledge these dangers. They pay close attention to prior research that has identified structural flaws in the bargaining system, and they make imaginative use of economic analysis to extend that work and reinforce its conclusions. But Scott and Stuntz do not take the next logical step and join those who have advocated the abolition of bargaining. Rather, they argue that abolition would make matters worse and that modest reform of the bargaining process can significantly reduce its harmful effects. Unfortunately, the Scott and Stuntz proposals only nibble at the edges of the problem. Their suggested reforms would have little impact on the inefficiencies and injustices of the American plea bargaining system. One might still choose to preserve rather than abolish bargaining, however, if Scott and Stuntz are right that abolition would aggravate existing problems. It is this feature of their argument that is most important, most original, and ultimately most disappointing. The Scott and Stuntz analysis does not successfully establish that abolition of bargaining would disadvantage the innocent. I argue, to the contrary, that abolition would serve both justice and efficiency.
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Reconsidering Miranda
Stephen J. Schulhofer
Few decisions of the Warren Court have attracted as much attention and controversy as its 1966 ruling in Miranda v. Arizona. Miranda relied upon the fifth amendment privilege against compulsory self-incrimination to impose limits on custodial police interrogation. Recently Miranda has become the focus of renewed debate. The Department of Justice, in a 120-page report endorsed by Attorney General Edwin Meese III, attacks the Miranda decision as an illegitimate act of judicial policy-making that the Court should now overrule. Talk about "overruling" Miranda usually obscures the fact that Miranda contains not one holding but a complex series of holdings. To assess the soundness of the Justice Department's case, we need to begin by considering the . . . two holdings in depth.
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The Fifth Amendment at Justice: A Reply
Stephen J. Schulhofer
Mr. Markman's response to “Reconsidering Miranda” misses the article's central point, which was to offer a theory of fifth amendment compulsion and to consider the legitimacy of Miranda within the framework of that theory. While Markman offers no affirmative theory of what compulsion means, we can learn a good deal from his discussion of what compulsion does not mean. One theory, that compulsion requires a formal obligation backed by sanctions, was a mainstay of pre-Miranda arguments that the privilege against self-incrimination was irrelevant to police interrogation. Markman agrees with me that Miranda's rejection of this theory was “obviously correct.” Another candidate is the theory that compulsion requires “physical violence or other deliberate means calculated to break the suspect's will.” Again Markman agrees that my rejection of this view is "obviously correct.” Why, then, does Markman challenge the view of compulsion offered in Miranda and in my article? The historical materials cannot bear the weight Markman places upon them. He emphasizes that preliminary examinations of suspects had been “a basic feature of criminal procedure [since the sixteenth century] and remained so until the mid-nineteenth century.” But his own sources stress that the preliminary examination of the sixteenth and seventeenth centuries relied upon compulsory process and often upon torture. The existence of such practices casts no doubt on my claim that the fifth amendment was intended to prohibit “pretrial examination by magistrates . . . under formal process” or other compulsion. Moreover, mid-nineteenth-century willingness to tolerate “aggressive” interrogation, with no warnings and no right to avoid questioning, is not helpful in interpreting the intended content of fifth amendment “compulsion.” Turning again to Markman's own sources, we find that such practices were either perceived as contrary to the privilege or were reconciled with it on the sole ground (properly rejected by Markman) that compulsion required a formal obligation to respond.
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Federal Regulation of Securities
Helen S. Scott
The capital markets of the United States provide mechanisms for the purchase and sale of instruments, broadly known as securities, which represent claims of a contractual nature against the company that sells or issues the instrument and which is generally referred to as the ‘issuer’. Equity and debt instruments which can have standardized characteristics, and thus can be widely traded by the public, are used by business enterprises as sources of funds. The use of securities represents one of the available financing devices to corporations generally, regardless of whether the instruments are publicly tradable. There are many marketable (but not widely traded) securities that have terms which are individually tailored to particular transactions or interests. Because one or more classes of security (usually stock) will also possess the power to vote, securities may also be designed and issued for the purpose of allocating control of the entity. There are several different types of public markets for securities in the United States. Stock exchanges are the oldest public markets. They are private enterprises, with members who buy their memberships in the form of ‘seats’. The issuer of securities which are to be traded on a stock exchange must meet the listing requirements of the exchange, enter into a contract with the exchange, called a ‘Listing Agreement’, and pay listing fees to the exchange. Listing requirements typically include a minimum amount of assets, a minimum number of shares outstanding, and certain governance structures. Public trading of securities off the exchanges is done in the ‘over-the-counter’ (OTC) market. The principal OTC market is NASDAQ, the National Association of Securities Dealers Automated Quotation System, which is divided into several tiers, the largest of which is the National Market System. NASDAQ is run by the NASD, which is a trade association composed of virtually all the brokers and brokerage houses in the United States The stock exchanges and the NASD support themselves by member fees and ‘listing fees’ paid by companies whose securities they trade. The primary source of profits to members of both the stock exchanges and the NASD is the money they make from trading securities, either for their customers or for their own accounts. The greater the number of listings a market has, or the bigger the listings in terms of company size and market capitalization, the greater the trading volume is likely to be, and the more money the members will make. As a result, there is considerable competition among the various markets for listings. The stock exchanges, of which the New York Stock Exchange is the largest in the United States, are called ‘auction’ markets. All buyers' and sellers' orders are brought together in a single place and are matched in an auction-type setting, resulting (theoretically, at least) in the best price to the parties, and in the least volatility in prices because any particular price change should be only an incremental change from the prior price. To facilitate this auction, the exchanges have firms called ‘specialists’ through whom all buy and sell orders flow. Each listed security is assigned to a particular specialist. Although the specialist doesn't have to be involved in all matches between buyers and sellers, it can be and it must be there to ‘create an orderly market’ when there are temporary order imbalances. Thus, if there are more buyers than sellers for a few hours, the specialist is required to sell shares of the stock as a principal (rather than a broker) to keep the market from swinging wildly. Most transactions on the exchanges, however, are done by brokers who act as agents for customers and are paid through commissions on the sales. Transactions on the exchanges are reported as they occur, so the actual sales price for the last prior transaction is easily available. Unlike the exchanges, the over-the-counter markets do not have a centralized trading location. Instead, transactions are executed over phone lines and on computer screens. These markets are ‘dealer’ markets, because each trade is executed with a dealer (a market professional acting as a principal) on one side, whose profit is not a commission, but a ‘spread’. NASDAQ has moved to real-time trade reporting, so trades are reported as they are on the exchanges.
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Corporations and Other Business Organizations
Stanley Siegel
This chapter will provide a brief overview of the forms of business association in the United States, including a discussion of the law that govern their structure and the procedures to be followed for their organization. Detailed discussion will be limited to selected topics involving organization, operation, and reorganization of business corporations. Business enterprises in the United States are organized principally in one of four forms: the proprietorship; the general partnership; the limited partnership; and the corporation. A fifth form, used originally in the nineteenth century, which may become increasingly important in the forthcoming years, is the limited liability company. The laws that govern establishment of each of these enterprises and the relationships among their participants are, with two important exceptions, state laws. The choice of the form of the organization, as well as the choice of the state law under which it will be established, is made by the original organizers. The largest business enterprises in the United States are, with few exceptions, corporations, most-though not all-of which are owned by large numbers of stockholders. However, for economic and organizational reasons, the proprietorship and partnership forms (as well as the limited liability company) remain very important. Probably the most significant reason for the continued use of partnerships is a particular feature of United States tax law: while the distributed income (dividends) of corporations is taxed twice (once at the corporate level, and once again at the stockholder level), the distributed income of partnerships is taxed only once. Avoidance of this multiple tax burden is the principal reason why some forms of business, such as real estate enterprises (e.g. office buildings, rental apartment complexes, and shopping centers), motion picture production ventures, and natural resource exploration projects, are widely organized as limited partnerships. Professional service organizations, including doctors, dentists, accountants, and lawyers are also often organized as partnerships, although a substantial number of professionals have established ‘professional corporations’ as a means of obtaining certain tax benefits and providing a degree of limitation of liability. Start-up companies are often formed as proprietorships or general partnerships, and while many remain in those forms, those that become sizeable are often eventually incorporated. The various forms of business enterprise may be used as components of a larger structure, in which a corporation, partnership, or limited liability company may be a parent, a subsidiary, or an intermediate holding company.
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Environmental Law
Richard B. Stewart
In the United States, as in other nations, environmental law is a new field that has mushroomed over the past 30 years in response to rising public and political concerns over environmental degradation. The field is comprised of three basic components: control of pollution, wastes, and other side-effects of industrial processes and products; management of natural resources; and regulation of land use, infrastructure, and development. While the basic goals of environmental protection have enjoyed broad public support, the means for achieving them have proved controversial. The United States has a highly developed and complex system of environmental law. Over 35,000 United States lawyers specialize in environmental law. United States environmental law relies heavily on administrative regulation, a strong federal government role, and the use of procedural formalities, public participation, and court review to control administrative decision-making and ensure that legislative mandates for environmental protection are carried out. The growth of United States environmental law has been stimulated by important legal innovations, including environmental impact assessment, the use of rule-making procedures that rely on public comment to help develop administrative standards and regulations, sweeping liability programs to deal with toxic wastes and oil spills, and the grant by courts, statutes, and regulations of broad rights to environmental advocates to participate in agency decision-making procedures and obtain judicial review. Many of these innovations have been followed by other nations. United States environmental programs have made considerable progress in protecting health and the environment. At the same time, they have been strongly criticized in recent years as overly legalistic, excessively costly, unduly rigid, and productive of conflict and litigation rather than cooperative problem-solving. There is increasing recognition of the limits of the dominant ‘command and control’ system of centralized regulation, and growing interest in the use of alternative approaches, including economic incentives for environmental protection.
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Environmental Law
Richard B. Stewart
In the United States, as in other nations, environmental law is a new field that has mushroomed over the past 30 years in response to rising public and political concerns over environmental degradation. The field is comprised of here basic components: control of pollution, wastes, and other side-effects of industrial processes and products; management of natural resources; and regulation of land use, infrastructure, and development. While the basic goals of environmental protection have enjoyed broad public support, the means for achieving them have proved controversial. The United States has a highly developed and complex system of environmental law. Over 35,000 United States lawyers specialize in environmental law. United States environmental law relies heavily on administrative regulation, a strong federal government role, and the use of procedural formalities, public participation, and court review to control administrative decision-making and ensure that legislative mandates for environmental protection are carried out. The growth of United States environmental law has been stimulated by important legal innovations, including environmental impact assessment, the use of rule-making procedures that rely on public comment to help develop administrative standards and regulations, sweeping liability programs to deal with toxic wastes and oil spills, and the grant by courts, statutes, and regulations of broad rights to environmental advocates to participate in agency decision-making procedures and obtain judicial review. Many of these innovations have been followed by other nations. United States environmental programs have made considerable progress in protecting health and the environment. At the same time, they have been strongly criticized in recent years as overly legalistic, excessively costly, unduly rigid, and productive of conflict and litigation rather than cooperative problem-solving. There is increasing recognition of the limits of the dominant ‘command and control’ system of centralized regulation, and growing interest in the use of alternative approaches, including economic incentives for environmental protection.
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Multiculturalism and Mélange
Jeremy Waldron
In order to think clearly about multicultural education, we need to think what it is for a person to grow up and form an identity in a culturally plural society. Official prescriptions for the study of history and social studies give a lot of attention to the multiplicity of cultures in the United States; but they say much less about what that diversity implies for the identities of particular individuals. This is a pity because questions about community and identity are complex and illuminating, and the array of possible answers poses an interesting challenge to our preconceptions about the role of culture in individual lives. Does cultural plurality at the social level imply cultural plurality in the constitution and identity of each individual member of the society? Or does it rather presuppose cultural homogeneity at the individual level, so that even though the society emerges as a patchwork, each constituent person or group is cut from whole cloth? If “[t]he United States is a microcosm of humanity today,” does that make each citizen also a microcosm, so that she reflects in her relationships, aspirations, and experiences a little of each of the country's constitutive cultures? Or is the United States a microcosm in which the integrity of each person's identity is secured by the culture and ethnicity of some group in particular? The questions are not just about the existing characteristics of a multicultural society; they are also about what a society of this kind should aspire to. The aim, we are told, is to reconcile national unity with respect for difference: e pluribus unum. Does the hope for this unity-in-diversity lie in the synthesis that each individual forges among the various cultural experiences and encounters that make up her life? Or is it to be purely a social and political synthesis, welded externally among culturally disparate individuals and groups? If the latter, how is the social synthesis to be sustained? How, for example, can it be rooted in the consciousness of the various persons that make up the society in question without at the same time undermining and compromising the integrity of the particular cultures and ethnicities that secure each person's identity? How, as a matter of identity, can one belong to one culture in particular and still be a good citizen of a multicultural society?
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Property Law
Jeremy Waldron
Philosophical thought about the law of property covers two types of issues. First there are analytic issues, about the meaning and use of the most important concepts in property law, such as “private property,” “ownership,” and “thing.” The second type of issue is normative or justificatory. The law of property, as we know it, involves individuals having the right to make decisions about the use of resources—the land and the material wealth of a country—without necessarily consulting the interests and wishes of others in society who might be affected. So what in general justifies giving people rights of this kind? And specifically, what principles justify the allocation of particular resources to particular owners? The two sets of issues are of course connected, for the point of sharpening our analytical understanding of concepts like “ownership” is to make clearer what is actually at stake when questions of justification are raised.
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Rights and Needs: The Myth of Disjunction
Jeremy Waldron
The idea of legal rights today enjoys virtually universal appeal, yet all too often the meaning and significance of rights are poorly understood. The purpose of this volume is to clarify the subject of legal rights by drawing on both historical and philosophical legal scholarship to bridge the gap between these two genres—a gap that has divorced abstract and normative treatments of rights from an understanding of their particular social and cultural contexts. Legal Rights: Historical and Philosophical Perspectives shows that the meaning and extent of rights has been dramatically expanded in this century, though along with the widespread and flourishing popularity of rights, voices of criticism have increasingly been raised. The authors take up the question of the foundation of rights and explore the postmodern challenges to efforts to ground rights outside of history and language. Drawing rich historical analysis and careful philosophical inquiry into productive dialogue, this book explores the many facets of rights at the end of the twentieth century. In these essays, potentially abstract debates come alive as they are related to the struggles of real people attempting to cope with, and improve, their living conditions. The significance of legal rights is measured not just in terms of philosophical categories or as a collection of histories, but as they are experienced in the lives of men and women seeking to come to terms with rights in contemporary life. Contributors are Hadley Arkes, William E. Cain, Thomas Haskell, Morton J. Horwitz, Annabel Patterson, Michael J. Perry, Pierre Schlag, and Jeremy Waldron. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.
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Financial Responsibiity
José E. Alvarez
The purpose of these volumes is to examine, explain and appraise contributions made by the United Nations system to international law and the law-creating process. The work assesses the effect UN institutions have had on the law-making process, and the extent to which that law has been accepted by and evidenced in contemporary state practice. It is divided into three main parts. The first examines the practical as well as conceptual aspects of the UN system as a source of law. The second part deals with different fields of activity which have become the subjects of legal rules and processes. Areas covered include human rights, use of force and economic relations. In addition, topics that have not previously been examined in such a comprehensive manner, such as shipping, aviation, and private international law, are also discussed. The third part covers the internal law of the UN system—international civil services and financial contributions.
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Legal Issues
José E. Alvarez
An annual publication of the United Nations Association of the United States of America.
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A Long Way From Home: Richard Wright in the Gold Coast
Kwame Anthony Appiah
A collection of Critical Essays reflecting both older and newer perspectives. Will also contain an introduction by the editor (a respected scholar in the field), a chronology of the author's life, and an annotated bibliography.
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Geist Stories
Kwame Anthony Appiah
In recent years, the idea of multiculturalism has become a powerful—and controversial—influence in a variety of social and cultural territories. In the academic world it has profoundly influenced curriculum and scholarship in the humanities, particularly in traditionally Eurocentric disciplines such as comparative literature. It was hardly surprising, then, that the 1993 report "Comparative Literature at the Turn of the Century"—which endorses a multicultural orientation for the discipline—generated an unprecedented level of interest. The third such report on professional standards issued by the American Comparative Literature Association since 1965, it continues to be the subject of lively discussion and debate. At issue is not only the definition of a discipline but also the cultural function of literary study in general. This book brings together the three ACLA reports (issued in 1965, 1975, and 1993), three responses to the latest report presented at the 1993 MLA convention (by K. Anthony Appiah, Mary Louise Pratt, and Michael Riffaterre), and thirteen additional position papers by prominent scholars in the humanities.
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Philosophy and Necessary Questions
Kwame Anthony Appiah
Centered on one ethnic group, this anthology provides a comprehensive collection of essays on African philosophy. Unlike most texts in the field, this book works to address fundamental issues about life and knowledge and it covers both traditional and current areas of philosophical research such as metaphysics, epistemology, feminism, and business ethics.
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Race
Kwame Anthony Appiah
Since its publication in 1990, Critical Terms for Literary Study has become a landmark introduction to the work of literary theory—giving tens of thousands of students an unparalleled encounter with what it means to do theory and criticism. Significantly expanded, this new edition features six new chapters that confront, in different ways, the growing understanding of literary works as cultural practices. These six new chapters are "Popular Culture," "Diversity," "Imperialism/Nationalism," "Desire," "Ethics," and "Class," by John Fiske, Louis Menand, Seamus Deane, Judith Butler, Geoffrey Galt Harpham, and Daniel T. O'Hara, respectively. Each new essay adopts the approach that has won this book such widespread acclaim: each provides a concise history of a literary term, critically explores the issues and questions the term raises, and then puts theory into practice by showing the reading strategies the term permits. Exploring the concepts that shape the way we read, the essays combine to provide an extraordinary introduction to the work of literature and literary study, as the nation's most distinguished scholars put the tools of critical practice vividly to use.
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Script Reading
Kwame Anthony Appiah
Worlds Envisioned brings into dialogue the works of the Italian artist Alighiero e Boetti and Ivoirian artist/author Frédéric Bruly Bouabré, who share a fascination with taxonomy and the inversion of epistemological conventions.
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Why Africa? Why Art?
Kwame Anthony Appiah
This volume provides a global vision of the art of Africa through a host of colourful images of the finest known objects from the continent's cultural heritage. It examines African art geographically in a "grand tour" that divides the continent into seven areas. Beginning with ancient Egypt and Nubia, it moves down the eastern coast through Ethiopia and the Sudan—including the island of Madagascar—to Southern Africa, then up through the Congo and Central Africa to the Guinea Coast and the countries of the Sahara. Finally, it moves to North Africa, before returning to Egypt in its later Christian and Islamic periods. Within each of these seven chapters, objects are illustrated in chronological order, demonstrating the extraordinary range of styles inspired by different religions and cultures realized in a variety of materials from dung to gold. The artifacts comprise ornaments and jewellery, textiles, snuff bottles, Tutsi basketry from Rwanda, and sculpture, including the finest bronzes, terracottas and wood carvings from all periods. The book details the archaeological, historical and cultural background of every illustrated object and relates individual pieces to the people who made them. From ancient Egypt comes the Battleground Palette from 5000 B.C. This ceremonial palette depicts a battle on one side and an elegantly carved scene of grazing animals on the other. The book pictures a lyre from the southern Sudan that is over three feet high and profusely decorated with coins, beads, and shells. Also included is the oldest human artifact found on Earth—a handmade stone tool 1.6 million years old from Olduvai Gorge in Tanzania. If the scope of the book spans a whole continent, the source of the objects is transcontinental. Works of art from the finest public and private collections in Europe, America and the rest of the world are juxtaposed with the best from Africa itself. This book is published to coincide with "Africa 95", the first nationwide celebration of the arts of Africa ever to be held in Great Britain. Patrons of "Africa 95" are Her Majesty The Queen, President Nelson Mandela, and President Leopold Sedar Senghor. As the birthplace of the human race, Africa has a cultural history of unparalleled length; the book reflects this vast time span and the diversity of the art of the continent.
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