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  Crime and Tort: Old Wine in Old Bottles

  Richard A. Epstein

  The relationship between crime and tort is much vexed in the judicial and academic literature. Most people recognize that the two systems of individual responsibility have much in common, but that much, too, separates them. In this essay I wish to investigate the reasons why the two rules of tort and crime should overlap and diverge, and then, having established the general framework, to show how it applies to key substantive questions about individual responsibility that must be confronted in both systems. With the general part of the explanation completed, I want to turn to the question of under what circumstances, if any, the victim of a crime should be entitled to compensation (sometimes called "restitution") in a criminal proceeding from his assailant.

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  Voting Theory, Union Elections, and the Constitution

  Richard A. Epstein

  In his paper, "Some Procedural Aspects of Majority Rule," Professor Kramer has discussed the ways in which the general notion of due process maybe applied to the rules of order used by parliamentary bodies. In the course of that paper, he has elaborated a notion of majority will that he claims has general acceptance in political theory. In this paper, which began as a comment upon his, I shall use his account of the majority will to discuss in the particular context of labor law two distinct but closely related issues. The first of these concerns the degree to which procedures adopted in certification elections—those which determine which union, if any, in a given bargaining unit should represent the workers in that unit—should conform to his account of the majority will. The second of these questions is, whether as a constitutional matter there is any violation of the due process clause when the federal government sanctions union elections that do not adopt the account of majority will that he proposes. In order to set the stage for an examination of these two issues, it is first necessary to set out in brief form the account of the majority will adopted by Kramer and the reasons why it should be preferred to other accounts that might be substituted in its place.

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  Commentary: The Fragmentation of Value

  Thomas Nagel

  The conflicts between disparate values, claims, and interests described in Stephen Toulmin's paper are not limited to the professions. They belong to a broader category of practical and moral problems that merits attention: the problems created by a disparity between the fragmentation of value and the singleness of decision. Members of the professions serve the interests of their clients in ways that cannot be immediately and directly evaluated by the clients, because they involve special knowledge and uncertainty and delay in the achievement of results. Therefore clients cannot regulate professional activity in detail. Professional codes are designed for the conspicuous self-regulation of such activities and services, so that the public can submit to professional ministrations with reasonable confidence. If the justification for that confidence is sometimes doubted in the case of medicine, it is because the public recognizes the variety of claims on a physician, from within and without, and sees that the patient's interests have a great deal to compete with. A realistic professional code will reflect these conflicts. It may tum out, however, that they are not most fairly dealt with by a system of professional self-regulation. Leaving aside the economic interests of physicians, the main competitors of the individual patient's interests are medical research and medical education, both of which serve the interests of future patients but may involve risk and sacrifice of comfort to the one who is serving as a subject. Some such distribution of burdens is necessary, but its shape is too often determined by factors like poverty and ignorance. Some people have no choice about the terms under which they will undergo medical treatment. There is a case for external regulation both of how patients may be used for research and training, and of which patients are thus used. But I am going to discuss the problem of practical conflict more generally, with only occasional reference to the biomedical professions. By a practical conflict I do not mean merely a difficult decision. Decisions may be difficult for a number of reasons: because the considerations on different sides are very evenly balanced; because the facts are uncertain; because the probability of different outcomes of the possible courses of action is unknown. A difficult choice between chemotherapy and surgery, when it is uncertain which will be more effective, is not an example of what I mean by practical conflict, because it does not involve conflict between values which are incomparable for reasons apart from uncertainty about the facts. There can be cases where, even if one is fairly sure about the outcomes of alternative courses of action, or about their probability distributions, and even though one knows how to distinguish the pros and cons, one is nevertheless unable to bring them together in a single evaluative judgment, even to the extent of finding them evenly balanced. An even balance requires comparable quantities. The strongest cases of conflict are genuine dilemmas, where there is decisive support for two or more incompatible courses of action or inaction. In that case a decision will still be necessary, but it will seem necessarily arbitrary. When two choices are very evenly balanced, it doesn't matter which choice one makes, and arbitrariness is no problem. But when each seems right for reasons that appear decisive and sufficient, arbitrariness means the lack of reasons where reasons are needed, since either choice will mean acting against some reasons without being able to claim that they are outweighed. Whether the conflict is a true dilemma or just a decision involving disparate values, it seems reasonable to propose, as Toulmin does, that to deal with it one must establish priorities among the conflicting claims. However, it is not clear how this can be done, or even what form the priorities would take. (It is unlikely, for example, that an absolute ranking of values into an order of precedence could be correct: even if X usually takes priority over Y, some large weight of Y will outweigh some small weight of X.) And the problem cannot even be addressed until we know more about the claims or values that give rise to the conflicts we are trying to resolve. My own view is that a general system of priorities, whether or not it involves the reduction of apparently disparate values to a common denominator, is not the appropriate method for dealing with these problems. But I shall argue for the point only after saying something about the sources of practical conflict, and how they can be classified.

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  Poverty and Food: Why Charity is Not Enough

  Thomas Nagel

  Although the world food situation raises acute problems of distributive justice, they are not comparable to problems about how to distribute a definite quantity of food that is already on hand to numerous hungry victims of a natural calamity. Because of the significant effects of distribution on production, and the impossibility of separating the distribution of food from that of wealth in general, there is no isolable question of justice about redistribution of food from the haves to the have-nots. In a sense, therefore, the ethical aspects of this topic can be discussed only as part of the general problem of global economic inequality. In a money economy, anything can be exchanged for anything else, and the issue of the distribution of food is inseparable from that of the distribution of transistors or power plants. Nevertheless there is a reason for thinking about the larger question in terms of food. Food is basic. It is the last thing an individual can afford to give up, if he can afford nothing else, and this means that in the current world situation we are not dealing with an abstract problem of inequality, but with something more specific and acute. If everyone in the world had at least a minimally adequate standard of living, there would still be ethical problems about the justice of big differences in wealth above that minimum as there are, for example, about the distribution of wealth within the United States. But whatever may be said about this general problem, the inequalities that appear in the distribution of food on a worldwide scale are of a very different kind, and raise a different issue. They are, to be sure, basically inequalities in wealth rather than in food; but inequalities in wealth and income which result in starvation or severe malnutrition for some are in a different moral class from those inequalities higher on the scale that result in luxuries and multiple dwellings for some and marginal poverty for others. When the subject is enough to eat rather than a yacht, the difference between haves and have-nots goes beyond the general problem of equality and distributive justice. It is an extreme case, involving extreme needs.

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  Property Values and the Benefits of Environmental Improvements: Theory and Measurement

  A. Mitchell Polinsky and Daniel L. Rubinfeld

  Attempts to measure the benefits of environmental improvements encounter a problem common in economics: the difficulty of determining the values of goods and services not directly traded in markets. Although consumers are thought to value the environment highly (a term used generically to include air, water, land, visual aesthetics, and so on), there are no directly observable market prices which can conveniently be interpreted as the consumer’s marginal willingness to pay for environmental attributes. Four approaches have been employed to overcome this problem: Health studies, which seek to determine the relationship between improvements in the environment and human health and then place a dollar value on these health improvements; Cost studies, which seek to ascertain the extra costs created by environmental disamenities, such as the physical damage to buildings caused by polluted air; Wage rate studies, which seek to determine the wage differences among urban areas that are necessary to compensate a given quality of labor for urban disamenities; and Property value studies, which seek to determine the relationship between property values and environmental amenities in order to predict the change in aggregate property values (interpreted as willingness to pay) resulting from an environmental improvement. This paper is limited to a discussion of what can be learned about the benefits of environmental improvements from property value studies. The question of whether the benefit measure derived from this approach should be added in part or in while to the benefits derived from the other approaches is left unanswered. In section 2 the essential issues involved in property value studies are explored in detail. Section 3 presents a nontechnical version of a model that can be used to determine property values in an urban area. In section 4 the model is used to analyze and at least partially answer the questions raised in section 2. In the process, a new procedure is suggested for measuring the benefits of environmental improvements. In section 5 a numerical illustration using this procedure is undertaken for St. Louis and compared with the estimates obtained by other methods.

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  The Development of Administrative and Quasi-Constitutional Law in Judicial Review of Environmental Decisionmaking: Lessons From the Clean Air Act

  Richard B. Stewart and P. Spector

  A Report to the U.S. Environmental Protection Agency From the Committee on Environmental Decision Making, Commission on Natural Resources, National Research Council.

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  Workshop, The Death Penalty

  Peggy C. Davis, John Roberts, Hugo Adam Bedau, and Bill Owens

  The Proceedings of a Symposium on Criminology and the Criminal Justice System: Old and New' were prepared from a transcription of what actually took place on 6 April 1974.

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  On the Effects of Aid to Nations in Arms Races

  John A. Ferejohn

  Monograph on mathematical analysis and models in international relations—contains 18 contributions dealing with theories of international relations, probability models, simulation and decision making, and presents applications to selected international problems, such a inter-nation alliances, conflict behaviour, arms and OPEC. Graphs and references.

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  Energy and the Environment

  Marc J. Roberts and Richard B. Stewart

  After a decade during which expenditures for environmental protection enjoyed great popularity, Americans now seem to be increasingly unsure of how to strike the right balance between environmental quality objectives and other social goals. The significant rise in oil prices brought about by the concerted actions of the oil-exporting nations, coupled with a period of near-record inflation and unemployment, has led to a general reexamination of priorities. How much can the United States afford to pay for environmental protection? To what extent do environmental and energy goals conflict? Is the world really running out of resources, and if so should America Develop or conserve its own energy supplies? In this chapter we shall examine some of the critical policy problems and options posed by these questions and raise several more general points about the nature of the choices now confronting the nation. We can view the economy as producing three kinds of outputs: energy, environmental quality, and all other goods and services. In the absence of improvements in efficiency, the more we want of any one of these the less we can have of the others. For example, given the current high price of world oil, we can have more energy at lower fuel costs by switching to coal-burning power plants. But we will pay for that either by increased air pollution or by reducing the production of other goods and services and devoting those resources instead to the production of “scrubbers” to clean power plant smokestack emissions. If, on the other hand, we can find ways to increase the efficiency with which the nation produces energy and environmental quality, we can achieve to some extent all our goals simultaneously. A basic conclusion of this chapter is that there are a number of ways to improve current public policies in both the environmental and energy areas so that we can more nearly reach our goals for both with less adverse impact on other aspects of our living standards than would be possible under current policies. But if we are to achieve such gains the United States must make more carefully considered choices both of standards and goals for domestic energy production and environmental quality and of the policy instruments used to reach those goals. And while we will argue here for the importance of proceeding in ways that minimize costs, in making these basic choices considerations other than economic efficiency must also be taken into account. In particular, energy and environmental policies can have important effects on the distribution of income. Higher energy prices, for example, would conserve energy and reduce air pollution but have a particularly acute impact on the living standards of the poor and near poor. Deregulation of the current controlled prince of natural gas would increase supplies of a particularly clean source of energy but sharply raise costs for those homeowners who years ago chose to buy a gas-heated home. There is also a question of the distribution of income among generations. Some environmental decisions are virtually irreversible, so their potential costs to future generations, whose steward we are, must be of concern. National security and foreign policy objectives are another consideration. Too often uneconomic policies that favor special producer interests are adopted in the name of national security. It is nevertheless a legitimate concern that we not become too dependent on unreliable overseas sources for our energy supplies. It may therefore be necessary to take some steps in the energy area that might not be warranted on economic efficiency grounds alone. Finally, some of the decisions we make about energy and the environment have long-run effects on the nature of technological progress and even on our basic goals and preferences. It is probably true that the more experience people have with a clean environment or an unspoiled wilderness, the more highly they come to value them. And unless the economic system provides substantial rewards for cleaning up pollution, we will not channel inventiveness and scientific effort into finding ways of doing so. This examination of the interaction between energy and environmental problems is divided into two sections. In the first we consider the criteria that should influence policy decisions – economic efficiency, income distribution, personal preferences, technology, and national security—and then discuss the problem of setting national goals and standards and the alternative kinds of policy instruments available to achieve those goals. In the second section we treat specific suggestions for improving current energy and environmental policies in there major areas: more effective and less costly energy conversion techniques; more cost-effective ways of meeting environmental goals; and means of reducing the environmental costs of domestic energy production.

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  The Impact of Private Sector Principles in the Public Sector: Bargaining Rights for Supervisors and the Duty to Bargain

  Harry T. Edwards

  Monographic compilation of conference papers on current issues in labour relations, trade union power, trade unionism and labour policy in the USA—includes references and statistical tables. Frank W. Pierce Memorial Conference held at Cornell University in Ithaca, NY, November 16 and 17, 1973.

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  Resource Efficiency in the Public Sector

  John A. Ferejohn

  J.A. Ferejohn presents alternative criteria that can be used to assess the efficiency of government decisions regarding the use of their resources.

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  Comment

  Thomas Nagel

  While the most conspicuous departures from self-interest in economic transactions are no doubt caused by folly rather than by altruism, some form of consideration for the welfare of others certainly plays a significant role in economic life. I shall discuss three kinds of cases: (1) The contribution of support to an institution or practice from which the contributor benefits, even though his benefit is not contingent on his contribution; (2) the attempt to pursue and avoid certain causal relations between one's own welfare and that of others; (3) the inclusion of altruistic motives within the scope of a service offered for sale. I shall close (4) with some remarks about the generality of altruism and the factors that restrict its operation.

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  Observations on a Distributive Theory of Policy Making: Two American Expenditure Programs Compared

  Barry S. Rundquist and John A. Ferejohn

  Why government policies take the form they do is a question that has long interested political scientists and is currently the focus of widespread research efforts (Heclo, 1972; Tribe, 1972; and Bauer and Jergen, 1969). There are essentially three basic approaches to this question: the environmental, the structural, and a combination of these two approaches. The first, evidenced in other papers in this volume, attempts to explain government outputs without discussing the structure of government decision-making. Implicit in this approach is the assumption that governmental decision-makers respond directly, whether rationally or like billiard balls, to environmental influences. The second approach would explain outputs only in terms of government decision-making. The implicit assumption in this approach is that decision-makers can produce outputs that differ from those imposed upon them by their environment. The third approach attempts to explain the outputs of government as a function of both government structure and environmental influences. This approach assumes that if decision-making were organized differently, different influences in the government's environment would be able to affect policy decisions, and consequently government policy would take a different form. This paper takes a prevalent theory following from this third approach and examines it in the light of data on two expenditure programs.

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  Freud's Anthropomorphism

  Thomas Nagel

  Freud was a materialist, and at an early stage of his psychological inquiries attempted to construct an explicitly physiological psychology based on the interaction of neurons. This attempt, by now well known under the title “Project for a Scientific Psychology,” was abandoned shortly after Freud sent the draft to Fliess in October 1895. And when he learned in 1937 that Marie Bonaparte had unearthed the manuscript, he sought to have it destroyed. His subsequent theories were of an entirely different character, for they contained only psychological terminology and did not refer explicitly to neuron interaction. Nevertheless, there is a good deal of structural continuity between the earlier and later views, and Freud continued to be convinced that the psychic apparatus which he was investigating and describing in mentalistic terms was in its true nature a physical system-though too little was known about neurophysiology to permit anyone to think about psychology in physical terms. That is why Freud felt it necessary to abandon the line of investigation represented by the Project.

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  Property Taxation, Full Valuation, and the Reform of Educational Finance in Massachusetts

  Daniel L. Rubinfeld

  This paper is concerned with school finance in Massachusetts. Consideration is given to the existing situation and possible reforms. Normative implications as to who should control educational provisions and decision-making should not be drawn from this paper. Numerous proposals were simulated, but it was decided that the simplest and most straightforward proposals were best suited for expositional purposes. It will be assumed, for example, that all revenues for the reform of educational finance come from the state administrated property tax. It is likely that when and if reform does occur in Massachusetts and in other states, alternative tax tools will be used. Focus on the property tax does not imply that it need be the sole source or even the source of a large portion of the revenues. Alternative reform procedures worthy of serious consideration include the use of income and sales taxes, redefinition of school district boundaries and the direct federal takeover of substantial portions of school funding.

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  Linguistics and Epistemology

  Thomas Nagel

  There is some reason to believe that Chomsky’s views about the innate contribution to language-acquisition have a bearing on epistemological issues: on disputes over the existence of a priori knowledge, for example. Certainly if he is right, grammar provides a striking example of strong innate constraints on the form of human thought, and a natural object of philosophical fascination. I do not propose to discuss the correctness of Chomsky’s view concerning the importance and size of that innate contribution, or the adequacy of the support offered for it. The object of this paper is to investigate what epistemological consequences Chomsky’s empirical hypotheses about language-learning have, if they are correct. The discussion will divide into two parts. First, I shall consider how Chomsky’s hypotheses are most appropriately formulated, and specifically how the concept of knowledge can enter into their formulation. Second, I shall consider the bearing of these hypotheses on the epistemological status of our knowledge of natural languages, and also what they suggest about other kinds of knowledge, particularly those sometimes thought to be a priori.

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  Lewis F. Powell, Jr.

  Burt Neuborne

  Supreme Court Justices, at least in the modern era, have not been drawn from the ranks of the nation's preeminent practicing lawyers. The path to the Court has not been a brilliant career in private practice, but rather success in politics or government service. Earl Warren and Hugo Black came to the Court directly from electoral politics. William O. Douglas, Byron White, Arthur Goldberg and William Rehnquist held appointive office in the executive branch immediately preceding appointment. William Brennan, Potter Stewart, Harry Blackmun, Warren Burger and John Paul Stevens served as lower court judges in the state or federal systems for varying periods of time before being promoted to the Court. Only John Harlan, Lewis F. Powell and, perhaps, Abe Fortas, can be said to have earned a place on the Supreme Court because they were consummate practitioners of the traditional lawyers' art. While Thurgood Marshall and Arthur Goldberg each achieved eminence as lawyers representing broad social movements, in fact their legal practice was a mirror image of the Harlan-Powell experience. As “movement” lawyers, Justices Marshall and Goldberg often looked to the courts for broad doctrinal assistance designed to aid a category of similarly situated persons, only one of whom was actually before the Court. In contrast, Justices Harlan and Powell as “private” lawyers sought to resolve conflicts pragmatically, guided solely by the interests of their clients. As “private” lawyers, Harlan and Powell viewed the legal process, not as an engine for the enunciation of novel doctrine, but as a method of resolving a narrow dispute between discrete parties, ideally in a manner acceptable to each. Given the similarity of their practice backgrounds, a close intellectual bond links Lewis F. Powell to John Harlan as the only recent occupants of the “lawyer's” seat on the Supreme Court. The cast of mind and habits of thought which Lewis F. Powell, Jr. cultivated during thirty-five years of successful private practice followed him to the Supreme Court. As a Justice he remains cautious, pragmatic, skeptical of bright line distinctions and doctrinaire solutions, mistrustful of governmental interference in private affairs, and, above all, committed to rigorous logical analysis as an aid to predictability and a guarantor of principled decision-making. Not surprisingly, therefore, Justice Powell has, during his first six years on the Court, sought to avoid doctrinaire decision-making and the adoption of hard-edged ideological positions. Instead, his characteristic approach has been to focus on the narrow facts of the case before him; to identify with precision the competing interests of the parties; and, if possible, to evolve a middle of the road solution which respects the core concerns of each. Only after he is satisfied that the core concerns of the parties are in irrevocable conflict will he balance one set of interests against the other and determine which should take precedence. Such a balancing process is, of course, inevitably subjective and in Justice Powell's case, it has tended to reflect a personal reluctance to substitute his judgment for the judgment of legislators and administrative officials—unless deeply felt traditional values such as free speech, family life and property rights are threatened. When, however, he perceives a threat to such traditional values, Justice Powell has not hesitated to use the full power of the judiciary in their defense. Appointed to the Court late in his career at the age of sixty-four, few men have approached the Supreme Court with the training and qualifications of Lewis F. Powell, Jr. Born in 1907 in a suburb of Norfolk, Virginia, Justice Powell graduated from Washington and Lee College in 1929, where he was elected to Phi Beta Kappa and served as president of the student body. He completed the three-year course of study at Washington and Lee Law School in two years and was graduated first in his class in 1931. After a year at Harvard Law School, where he studied under Felix Frankfurter, Powell returned to Richmond and entered the private practice of law. In 1937 he was made a partner in the prestigious Richmond firm of Hunton, Williams, Gay, Powell & Gibson, which, by the time of Powell's nomination to the Court by Richard Nixon in 1971, had grown to over one hundred lawyers. World War II interrupted Powell's rise to eminence as a private lawyer. He served thirty-three months as an Air Force intelligence officer in North Africa, rising from 1st Lieutenant to Colonel and receiving the Legion of Merit, the Bronze Star and the French Croix de Guerre with Palm. Upon his return to Richmond, Powell resumed his practice and rapidly gained national recognition as a corporate lawyer. By the time of his nomination, Powell's legal ability and business acumen had led to his election as a director of eleven major companies, including Phillip Morris, Squibb, Ethyl Corporation and Chesapeake & Potomac Telephone Co. By then a pillar of the American legal establishment, Powell served as president of the American Bar Association in 1964-1965 and as president of the American College of Trial Lawyers from 1968-1970. He was president of the American Bar Foundation, the research arm of the ABA, from 1969 until his nomination to the Court in 1971. Powell's activities as a member of the National Advisory Committee on Legal Services to the Poor and his service as Vice President of the National Legal Aid and Defender Society were instrumental in securing the support of the organized bar for the concept of government subsidized legal services for the poor. Paralleling Powell's professional accomplishments is a lifelong interest in education and family life. He served as president of the Richmond Family Services Society and, from 1952-1961, was chairman of the Richmond School Board, where he urged a moderate course in complying with Brown v. Board of Education. Powell succeeded in keeping the Richmond public schools open despite the calls for “massive resistance” to the Brown decree which closed the Norfolk public schools. For several years after his retirement from the Richmond School Board, Powell was a member of the Virginia Board of Education. In 1970, Powell was named a member of the Board of Trustees of Washington & Lee University, where he had been instrumental in achieving its voluntary desegregation. Powell was also active in drafting the revised Virginia Constitution and the City Manager Charter reform for the City of Richmond. Despite Powell's moderation on the racial issue, however, he cannot be classed as a leader in bringing racial equality to the South. At the time of his nomination, Powell's one-hundred man firm had never employed a black lawyer; Powell was himself a member of two clubs which denied membership to blacks; and the Fourth Circuit had labelled certain practices of the Richmond School Board under Powell's stewardship as unconstitutionally perpetuating racial segregation. Bradley v. School Board of City of Richmond, 317 F.2d 429 (4th Cir. 1963). See also, 345 F.2d 310 (4th Cir. 1965). Given the professional qualifications which Justice Powell brought to the Court and given his indefatigable work habits and independence of mind, his emergence as an intellectual leader of the moderate center of the Burger Court is not surprising. The impact of Powell's mind and legal craftsmanship has been felt across the entire legal spectrum. In general, he has sought to establish a pragmatic, centrist alternative to the often extreme doctrinal solutions to legal problems pressed upon the Supreme Court by both the left and the right.

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  A Busy Spring in the Magnolia State

  Paul G. Chevigny

  The State Capitol in Jackson, where the Mississippi House and Senate sit, is a monument to the Mississippi legislative mind. A handsome building, finished in 1903 at what was then the terrific cost of a million dollars, it is a delicious combination of the humbug of the back-country politician and the pomposity of the Victorian swell. The floors and walls contain sixteen different kinds of marble, and the archways under the rotunda are set with thousands of light bulbs (which cause the temperature to go up above the point of endurability in the summer). If one goes in the doorway at ground level, one faces a bronze statue of the late Theodore Bilbo in a double-breasted suit, striking an oratorical stance. If one walks up the broad marble steps and through the main entrance, on the other hand, one is flanked on either side by an immense color transparency of one of the two Miss Americas who have come from Mississippi. The legislative activities of the Mississippi House and Senate have been in keeping with their decorative instincts. They have always tried to protect southern womanhood and the southern way of life, though they have devoted increasing energy to the job since 1954. After the House and Senate were convened in January, 1964, they passed the spring in prodigies of legislation designed to terrify Negroes and civil rights workers and to give law enforcement agencies the power to prevent demonstrations. Much of this activity had been completed by the time the summer volunteers arrived late in June of that year. Newspaper reporters were unable to resist the temptation to speak of the Council of Federated Organizations and its efforts to register voters in terms of a military operation. But the fact is that, aside from the lack of firearms, the COFO campaign failed in its resemblance to a military attack in one signal respect: surprise. The COFO operation was one of the major news stories of the year, and Mississippi had heard much about each step in the invasion, beginning with the initial dispute among the civil rights groups as to whether Mississippi really was the best target for the movement and including the details of the training of the summer volunteers. Furthermore, a group of SNCC, CORE and NAACP workers had been there all year, and some of them for years before, quietly trying to organize Negroes to register. White Mississippians knew a great deal more than they cared to know about field secretaries, Freedom Houses, Freedom Schools, and Negro voter registration. Their elected representatives, most of whom obtained office by being more rabid race-baiters than any of their opponents, not to speak of their constituents, undertook to throw up a wall against the foreign invasion. As the bills were proposed and passed, the COFO office at 1017 Lynch Street in Jackson kept a running record of them, together with newspaper clippings. Law students went filched copies of the bills. These were no Black Codes; they were a good deal more subtle than that. Though there are still a few segregation statutes scattered through the volumes of the Mississippi Code, the legislature has learned that raw segregation by state action will be declared unconstitutional by the Federal courts, even in Mississippi. The Mississippi legislators have shifted from trying to limit civil rights to trying to limit what are loosely denoted civil liberties, although their real purpose was never in doubt. Instead of perpetuating the system of segregation directly, the legislature passes bills of attainder and impairs contracts; it interferes with the liberties preserved in the Bill of Rights, including the rights to freedom of speech, press and assembly, as well as the prohibitions against excessive fines and bail, and cruel and unusual punishment. In short, the legislature sets out to maintain segregation indirectly by controlling the protest against it. This raises the question why, if they know that segregation laws are unconstitutional, the legislators do not know that laws which infringe civil liberties are unconstitutional as well. Part of the answer lies in the fact that the purpose of the statute is often hidden, sometimes artfully and sometimes not, under a thicket of pious verbiage intended to show that the law is a health measure or a police reform. Those cases where the unconstitutional intent of the statute is obvious must be explained by the fact that the legislators in Mississippi have not had as much practice with the rest of the Constitution as they have had with the equal protection clause. Part of the civil rights lawyers' job is to give them a little more experience with the rest of the Constitution.

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  International Co-operation in Litigation: Switzerland

  Max Guldener and Arthur R. Miller

  Swiss practices of international co-operation in litigation are influenced by Switzerland's federal system of government and by its national policy of neutrality, which has enabled it to avoid becoming embroiled in Europe's wars for over a hundred years. To some extent, these influences are responsible for a lack of harmony between Swiss and American procedures. However, it should be stressed at the outset that, although the difficulties inherent in obtaining Swiss co-operation in international litigation are often mentioned, l the real problem is not that Switzerland is reluctant to grant any co-operation, but that it frequently insists upon compliance with its own procedures. Switzerland is a confederation consisting of twenty-five cantons, each of which has its own government and exercises almost complete control over its internal affairs. Authority with respect to matters left to the confederation rests in a bicameral parliament, in a federal council whose seven members rotate in the presidency for one-year terms, and in the Bundesgericht. Each canton has its own district courts, usually called Bezirksgerechte, which are courts of first instance, and its own cantonal court of appeals. The adjudicatory authority of the Supreme Court of the Confederation (Bundesgericht), a federal tribunal, is primarily appellate and limited to questions of federal law which, however, include many questions of a private law nature. The Bundesgericht also has original competence in disputes between the confederation and a canton or between two cantons, in certain purely federal cases, and when both parties agree to submit the dispute to the court, provided the amount in controversy exceeds a certain amount. In these cases, the court sits in first and last resort. Virtually all requests for co-operation in foreign litigation ultimately are channeled to the cantonal court of first instance. As a rule, the Bundesgericht does not render assistance in the service of judicial documents or in obtaining testimonial or documentary evidence on behalf of foreign courts or litigants. However, the Bundesgericht may seek assistance from a foreign court in aid of its own proceedings. This report is based upon the law of the canton of Zurich in which is situated the city of Zurich, Switzerland's largest city and commercial center. The practice in this canton may be considered typical, although it must be stressed that the laws of certain cantons reflect their French, German, or Italian heritage, and that small or thinly populated cantons have had little or no experience in matters of inter- national co-operation in litigation.

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  International Co-operation in Litigation: Belgium

  François Rigaux and Arthur R. Miller

  Belgium is divided into twenty-six judicial districts (arrondissements). In each arrondissement, there is a court of first instance (tribunal de première instance), which functions as a court of general competence. Review of decisions of a court of first instance may be had in one of the three courts of appeal (cours d’appel) which sit in Brussels, Ghent, and Liège, and final review of questions of Belgian law may be had in the Court of Cassation (Cour de Cassation). In addition to these courts, there are several tribunals of special competence. Disputes that do not exceed 10,000 francs (about $200) and certain other controversies are heard by justices of the peace (juges de paix). Commercial matters are heard before commercial courts (tribunaux de commerce). Controversies between employers and employees are adjudicated by a special tribunal (conseil de prud’hommes) or, if the defendant does not object, by a court of first instance under its general adjudicatory powers. Proceedings in the courts of first instance are governed by the Code de Procédure Civile, which is a modified version of the French Code de Procédure Civile of April 14, 1806. The influence of French law on Belgian procedure is pronounced and, either by design or as a consequence of common heritage, rules evolved in France are frequently adopted by the courts of Belgium.

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  Problems in the Transfer of Interest in a Copyright

  Arthur R. Miller

  With the development of methods of mass communication and media of dramatic representation, the term "copyright" has become a shorthand expression for the "bundle of rights" to the various transformation and derivative works which comprise a given work of art. Although ill-equipped to deal with some of the modem forms of reproduction and representation, the present Copyright Act does recognize the existence of a wide variety of these rights. Unfortunately, doctrines which had their inception at a time when "copyright" signified the unitary right of first publication at common law and a monopoly to reproduce copies under statute, retain sufficient vitality to impair expeditious transformation of literary property into other forms of expression. In addition, there has been a failure to provide a statutory framework for the transfer of copyrights which satisfactorily balances the need for mobility against the need for safeguarding those dealing with the copyright. This paper will appraise the extent to which the present statutory transfer system has kept pace with the proliferation of marketable elements in a copyrighted work and has delineated the rights and duties of the transacting parties and provided the purchaser with a method for assuring that he has acquired a valid title.