Showing papers in "California Law Review in 1969"

The Legal Roles of Shareholders and Management in Modern Corporate Decisionmaking

Abstract: B. A NORMATIVE MODEL OF VOTING RIGHTS IN PUBLICLY HELD CORPORATIONS ....... ................ 15 1. Considerations of Public Policy .. ........ . 15 (a) \"Shareholder democracy \". . .. ........ ... 15 (b) Client-group participation .. ......... . 16 (c) Managerialism ..... ........... 21 2. Managerial Conflicts of Interest .. ........ . 27 3. Shareholder Expectations ... ........... .. 33 (a) The AT&T myth .... ............ 33 (b) The fallacy of \"the average shareholder\" ... .... 44 (i) The proprietary principle of corporate law . 44 (ii) Institutional investors as shareholders in publicly held corporations ... .......... 46 (A) The magnitude of institutional shareholdings 46 (B) The role of the institutional investor as a shareholder ... ........... .. 48 4. A Normative Model .... ............. . 53

Educational Opportunity: A Workable Consitutional Test for State Financial Structures

Abstract: INTRODUCTION *.*.'.*.'.................... 307 I A LAWYER'S BAEDEKER TO SCHOOL FINANCE ...... 312 A. THE RELATION OF WEALTH AND OFFERING UNDER EXISTING SYSTEMS ........ ................. 312 1. Effects of State/Local Financing Plans ...... ... 312 2. Typical Plans Analyzed .... ........... 313 3. Empirical Summary: More Effort and Less Education for Poor Districts ............. 316 B. THE VALUE SYSTEM: THE ALLEGED CONFLICT BETWEEN SUBSIDIARITY AND EQUAL OPPORTUNITY ......... 317 C. ALTERNATIVE DE-CENTRALIZED SYSTEMS: POWER EQUALIZING TO ACHIEVE BOTH SUBSIDIARITY AND EQUAL OPPORTUNITY . 319 1. District Power Equalizing . .......... 319 2. Family Power Equalizing ... .......... 321

War Crimes and Vietnam: The "Nuremberg Defense" and the Military Service Resister

Abstract: We have attempted to establish first that the international laws of warfare are part of American law, and have argued that these laws, when taken as prohibitions of specific methods of waging war, are a practical and effective means of controlling unnecessary suffering and destruction. Second, we have analyzed these laws as they apply to treatment of prisoners of war, aerial bombardment of nonmilitary targets, and chemical and biological warfare, and have marshalled a portion of the available evidence that American forces commit war crimes in Vietnam. Third, we have discussed the defenses of tu quoque, reprisal, military necessity, superior orders, ignorance of the law, and duress, and have concluded that a service resister can state a valid claim that his service in Vietnam may place him in substantial danger of being responsible for commission of war crimes. Finally, we have maintained that in-service and possibly draft resisters raising a “Nuremberg defense” have standing, and raise questions which are both ripe and justiciable. Tags: International Laws of Warfare, War Crimes, Vietnam War, Nuremberg Defense, Military Service Resister, Tu Quoque, Reprisal, Military Necessity, Superior Orders [pg1055]*** The case of Captain Howard B. Levy—the Green Beret “Medic” CaseFN1—at first seemed like hundreds of similar cases involving American servicemen being prosecuted for resistance to military orders involving Vietnam. Captain Levy had refused an order to teach dermatology to Special Forces (Green Beret) medics in the United States who were preparing for service in Vietnam, on the ground that his teaching would be “prostituted” by the Green Berets who in his opinion would commit war crimes once they arrived in Vietnam. The law officer for the military court, surprisingly, and on his own initiative, thereupon called for a private session in which he would hear evidence on the “Nuremberg defense”—the charge that the Green Berets were committing war crimes in Vietnam and that the government cannot constitutionally [pg1056] place a soldier against his will in substantial jeopardy of becoming implicated in such crimes. This decision by the law officer lifted Levy's case out of the ordinary and gave it historical significance. After hearing the evidence, the law officer ruled that none of it was admissible in open court. The net effect was to suggest to the public that an American military court was willing to be open minded about the introduction of a war-crimes allegation but that such a defense in fact had no intrinsic merit. A closer look at the law officer's ruling reveals otherwise. The law officer held the proffered evidence inadmissible not on the merits but because it was strictly irrelevant to Captain Levy's own circumstances. Although there was testimony in the private session that Green Berets were engaging in criminal activity in Vietnam that violated international laws of warfare, there was no evidence that the medics among the Green Beret troops were themselves engaged in war crimes or that their medical training was being prostituted by being utilized in criminal activity. FN2 While narrowly conceived, this ruling is reasonable inasmuch as Captain Levy was not himself in danger of serving in Vietnam as a member of the Green Berets, and his particular medical expertise, taught in this country, could only serve to ameliorate whatever wartime crimes they might commit. Thus the Levy case may have been the weakest possible situation to introduce a “Nuremberg defense.” On the other hand, the case does stand for the important precedent that a war-crimes defense is available, in relevant circumstances, to in-service resisters.

Administrative Control of Administrative Action

Abstract: \"The executive Power,\" the Constitution states, \"shall be vested in a President of the United States of America.\"' Literally read, this clause commands that all executive powers-those created by congressional acts as well as those prescribed in the Constitution-should be vested in the President in person. Since the President could not personally exercise all of these powers it follows that he could delegate them to other officers. Were he to do so the national administration, formed according to the principle of hierarchical subordination, would be a perfect pyramidal system.

Disciplining Federal Judges: Is Impeachment Hopeless

Abstract: Senator Tydings, Chairman of the Senate Subcommittee on Improvements in Judicial Machinery, recently introduced legislation which would empower a Commission on Judicial Disabilities and Tenure to recommend the removal of a federal judge from office.' His proposal, modeled on the California Commission on Judicial Qualifications,2 would avoid using the impeachment process3 specified in the Constitution and thus revives an old constitutional issue: Is impeachment the exclusive method of disciplining federal judges? Senator Tydings apparently thinks not; Justices Black and Douglas

The Decisionmaking Conference of the California Court of Appeal

Abstract: Dean Roscoe Pound pointed out, over a quarter of a century ago, that the most efficient appellate court is one of three judges.' At about the same time the Honorable Raymond E. Peters,2 then Presiding Justice of Division One bf the three-judge District Court of Appeal of the State of California in the First Appellate District,' determined that it would add not only to the efficiency of his court but also to the quality of its work if the three judges would participate in some sort of an intimate conference prior to oral argument which, through a full and free discussion of the cases, would focus upon each case the combined intelligence of the three judges. When Justice Peters was appointed to the district court of appeal in 1939, the California appellate courts followed a general practice under which the justices obtained their first knowledge of a case at oral argument. The rationale behind this procedure was that the justices could approach each case with a completely open mind and without any preconceived notions about the merits of the case before they heard the argument. But Justice Peters was convinced that the brevity of time necessarily allotted for oral argument made it difficult for the justices operating under this procedure to obtain a proper understanding of the case. He felt strongly that because the judges were not thoroughly familiar with the case at the time of argument-a fact known to the lawyers-both the judges and attorneys had a tendency to become indifferent to oral argument. As a result, oral argument usually consisted of a recital of the facts and the parties' general contentions instead of a detailed discussion of the decisive issues. Justice Peters was also concerned that the prevailing practice according to which one judge prepared the opinion of the court after oral argument, without full discussion with his associaties, had a tendency to produce a "one-man decision."' To cope with these

The Federal Income Tax and the Poor: Where Do We Go From Here

Abstract: In American society being poor and being among the "disadvantaged" mean essentially the same thing. Being poor places one in a position in which his various rights are more likely to be impaired than if he is not poor, simply because, in protecting his rights against infringement, one typically incurs substantial costs. This paper is concerned, therefore, with the position of those who may be classified as "poor" or "near-poor," and whether the federal individual income tax is or may be used as an appropriate and effective instrument for alleviating or even eliminating poverty. Clearly the elimination of poverty will not, in itself, ensure equal access to justice for all. It will, however, bring us closer to realization of that goal. While some will always, by reason of their greater affluence, be more advantaged than others, we must set limits on the degree of economic disadvantage that we are willing to tolerate. This Article will first review some of the facts of poverty and then consider the case for redistributing income in favor of the poor. It will examine the role of the federal individual income tax in its present form in relieving poverty, and, finally, present and evaluate what appear to be the more promising ways of using the machinery of the income tax to combat the basic disadvantage suffered by people in this country-being poor.

Police Interrogation of Suspects: The Court Versus the Congress

Abstract: Since 1936 the United States Supreme Court has considered more than 30 cases in which the defendants have contended that the confessions or admissions they made during police interrogation were involuntary, hence obtained through denials of due process of law, and thus should have been excluded from evidence at their trials. For nearly 30 years the Court looked to the facts of each case, deciding whether the \"totality of circumstances\" surrounding the giving of a particular confession had made its rendition involuntary In 1964 the Court, dissatisfied with the practical and doctrinal results of the evolution of the concept of voluntariness, began to change its approach. In Escobedo v. Illinois3 the Court found a violation of the sixth amendment right to counsel when the suspect had requested and was denied the opportunity to consult with his lawyer during police interrogation. 4 In 1966 the Court took another step. In Miranda v. Arizona it held that police interrogations must conform to explicit standards designed to protect the suspect's constitutional privilege against self-incrimination. Chief Justice Warren's Miranda opinion was immediately praised as \"a further strengthening of the protections that must govern police interrogation,\" ' and as quickly deplored with the lament \"How far and how long are the rights of the accused to be considered, with little regard for the rights of the victim?\" 7 The decision evoked sharp scholarly comment on its legal and historical validity.8 Public opinion, concerned both with its effect on the ability of the police to control