Showing papers in "Duke Law Journal in 1985"

The Fairness Doctrine Today: A Constitutional Curiosity and an Impossible Dream

Abstract: Immediately following the Supreme Court's opinion in Red Lion Broadcasting Co. v. FCC,' which sustained the constitutionality of the Federal Communications Commission's (FCC) Fairness Doctrine,2 a flurry of articles appeared describing how to apply the doctrine vigorously to new and different situations.3 Subsequently, especially after the Court's decision in CBS v. Democratic National Committee4 curtailed access possibilities, and Miami Herald Publishing Co. v. Tornillo 5 refused to sustain right to reply laws for candidates attacked by the print media, most discussions of the Fairness Doctrine have addressed its constitu-

Toward a Theory of "Just Cause" in Employee Discipline Cases

Abstract: Although almost every collective bargaining agreement permits the employer to discipline an employee for 'fust cause," the concept ofjust cause is not well understood. Rather than leading to fair and consistent resolutions of disciplinary disputes, the concept, as applied in arbitration proceedings, has led to inconsistent results that fail to serve the interests of either management or labor. This article develops a systematic theory ofjust cause in employee discipline cases by exploring the fundamental understanding of the employment relationship and the effect of the collective bargaining agreement on the fundamental understanding. It presents a model of just cause, identifying the components of the employee's obligation to provide satisfactory work, management's objectives for imposing discipline, and the union's objective of achieving fairness in discipline administration. By illustrating the application of the theory, the article demonstrates the value of a principled approach to just cause--employers and employees can better shape their day-to-day conduct, and arbitrators can more consistently honor the expectations of the parties.

Social Science and Segregation Before Brown

Abstract: The courts must bear a heavy share of the burden of American racism. An outpouring of historical scholarship on racism and the American law reveals the outrageous and humiliating extent to which American lawyers, judges, and legislators created, perpetuated, and defended racist American institutions. The law is not autonomous, however, particularly in areas of explicit public policy making. Lawyers did not invent racism. Rather they created racist institutions because society was racist and racism was implicit in its values. The trend in scholarship on the legal history of American racism, however, has been to place most of the blame for racism entirely on the lawmakers. C. Vann Woodward began the trend a half century ago by identifying the rise of the 'Strange Career of Jim Crow' with the passage of statutes that mandated segregation in the American South. Woodward studied both antebellum and post-Civil War America to about 1890 and argued that popular custom favored integration as a general rule, with segregation as the exception. He suggested that only after southern self-determination was restored at the end of Reconstruction did whites assert their hostility toward afro-Americans. This article disputes this view. It examines the relationship between law and the social sciences during the period in which many of America's segregationist legal institutions and practices came into effect. Before the turn of the century, a large number of scientific studies warned against the dangers of racial mixing. Elite scientists just as much as laypersons believed that Afro-Americans were intellectually inferior, that they learned much more slowly than white persons, and that their close association with whites could contaminate and weaken the white race. After the Civil War, the possibility of substantial racial mixing became real; the prospect most feared was that of interracial marriage. Nearly everyone assumed that the way to prevent interracial sexual contact was to keep the races separated, particularly in those institutions where young people's values and attractions were developed, such as the schools. The development of a ruling environmentalist paradigm to explain racial differences in test performance, physical integrity, criminal behavior, and economic status took more than half a century from the rise of the Jim Crow era. Scientific racism did not begin to disappear from American universities until the 1940's, until the publication of such consensus-creating documents as Gunnar Myrdal's An American Dilemma in 1944.

Judicialization: The Twilight of Administrative Law

Abstract: At its December, 1984 Plenary Session, the Administrative Conference of the United States devoted a part of its agenda to an exchange of ideas on the current state of administrative law and the directions in which this field is likely to moveor be pushed-in the foreseeable future. Perhaps because modern administrative agencies are such a curious admixture of the political, bureaucratic, and judicial components of government, the study of administrative law derives particular benefits from analyses and critiques that emphasize social utility as well as legal precedent. In no other area of the law do the current political agenda and social climate affect so directly both the legal process and its end products. The deliberately provocative essay that follows was written especially for this year's Administrative Law Issue by Loren A. Smith, Chairman of the Administrative Conference. Mr. Smith argues that the current level of judicialization and overproceduralization of the administrative process is a symptom of a fundamental dysfunction. He reminds us that formal methodologies cannot by themselves resolve the difficult issues that inevitably arise in the context of those important social programs placed under the auspices of the administrative agencies and argues that an infatuation with procedural safeguards-the traditional focus of administrative law studies-is counterproductive insofar as it has the effect of diverting attention away from critical substantive problems. \"Hard looks, \" Mr. Smith concludes, may be a frustrated body politic's way of avoiding \"hard choices,\" and he calls for a renewed recognition of the essentially political--and hence fully accountable-nature of the federal administrative process.

Negotiation and Informal Agency Action: The Case of Superfund

Abstract: The multi-billion dollar federal "Superfund"program for the cleanup of thousands of hazardous waste sites currently emphasizes federallyfunded cleanups followed by reimbursement actions filed against any responsible parties who can be found. Litigation to compel direct private cleanups supplements this strategy. Dean Anderson argues, however, that a variety of factors, including statutory constraints, inadequate funding, the shortcomings of litigation, and particularly the selection of a cumbersome quasi-regulatory implementation scheme, has combined to increase the costs and delay already inherent in the federal government's program. After a careful analysis of the existing program, he suggests that greater reliance on privately-funded cleanups negotiated with the full accord of the Environmental Protection Agency, site users, state and local governments, and affected citizens would significantly improve the pace and efficiency of the program. Applying principles and techniques developed in the field of alternative dispute resolution, Dean Anderson details a negotiation process that includes the selection of skilled convener-mediators, the identification of those waste sites that a balance of factors indicates are ripe for a negotiated private cleanup, and the inclusion of all parties with a stake in the outcome. Such a process, he suggests, would protect against the type of abuses that occurred at the Environmental Protection Agency during the first three years of the Superfund program. Hence, Dean Anderson tests in the crucible of Superfund the conflict-resolving power offour basic domestic policy tools-public works, litigation, regulation, and negotiation. His recommended approach, endorsed by the Administrative Conference of the United States, offers a concrete case study of the difficulties that

The Failure of Agency-Forcing: The Regulation of Airborne Carcinogens Under Section 112 of the Clean Air Act

Abstract: Professor Graham analyzes section 112 of the Clean Air Act, a provision intended by Congress to achieve ambitious regulatory ends by constraining agency discretion. The performance of the Environmental Protection Agency in implementing section 112 reveals flaws inherent in this \"agency-forcing\" approach to statutory design. In particular, section 112 directs the Agency to list formally those pollutants that it determines-without statutory guidance-to be \"hazardous.\" This directive, added to the requirement that the Agency promulgate within short deadlines very stringent rules regulating listed pollutants, has led to a lack of result that is perceived as bureaucratic footdragging. This lack of result is, however, due to the statutory design itself, and especially to its denial to the Agency of authority to consider costs and benefits in writing regulations governing sources of listed pollutants. A package of reforms is proposed to bring needed flexibility to section 112.

FDR’s Court-Packing Plan: A Second Life, a Second Death

Abstract: The story of Franklin D. Roosevelt's Court-packing plan is a twicetold tale.1 Every history of America in the twentieth century recounts the familiar chronicle-that in February of 1937, FDR, in response to a series of decisions striking down New Deal laws, asked Congress for authority to add as many as six Justices to the Supreme Court, only to be outwitted by the Court itself when Chief Justice Charles Evans Hughes demonstrated that Roosevelt's claim that the Court was not abreast of its

Corporate Finance in the Law School Curriculum

Abstract: In contemporary corporate law pedagogy, "Corporate Finance" denotes an advanced corporate course combining conventional legal materials on finance with materials on practical and theoretical finance economics. This was a novel curricular concept when Professors Victor Brudney and Marvin A. Chirelstein brought out the first edition of their Corporate Finance casebook in 1973.1 Times have changed. Such mixes of law and economics have become routine,2 and Corporate Finance has joined the establishment of generally offered upper-class law school courses.3 Law students associate Corporate Finance with Securities Regulation as a portal to corporate practice.4 The second edition of the Brudney and Chirelstein casebook, brought out in 1979, has entered middle age. And with the recent publication of Professor Robert W. Hamil-

The Ethics in Government Act of 1978: Problems With the Attorney General’s Discretion and Proposals for Reform

Abstract: If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.'