scispace - formally typeset
Search or ask a question

Showing papers in "Duke Law Journal in 1994"



Journal ArticleDOI
TL;DR: The National Performance Review (NPR) as discussed by the authors is a wide-ranging document that incorporates numerous proposals to streamline government and improve its efficiency, and a portion of the report addresses regulatory reform, and Improving Regulatory Systems, an accompanying document, focuses solely on this topic.
Abstract: The National Performance Review (NPR) Report is a wideranging document that incorporates numerous proposals to streamline government and improve its efficiency.1 A portion of the report addresses regulatory reform, and Improving Regulatory Systems, an accompanying document, focuses solely on this topic.2 Most of the regulatory reform proposals have been discussed in the administrative law and policy community for several years. The influence of the Administrative Conference and the Carnegie Commission is evident.3

42 citations


Journal ArticleDOI
TL;DR: In the classic account of corrective justice, corrective justice is the law's response to an unjust gain by the defendant that is correlative to the plaintiffs unjust loss as discussed by the authors. But even sympathetic readers of Aristotle's text are often puzzled by his reference to correlative gain and loss.
Abstract: In Aristotle's classic account, corrective justice eliminates wrongful gains and their correlative losses' The question I address in this Essay is, what is the nature of these gains and losses? According to Aristotle, liability is the law's response to an unjust gain by the defendant that is correlative to the plaintiffs unjust loss Because the unjust transaction has caused the defendant to gain what the plaintiff has lost, corrective justice links the parties in a bipolar relationship that mirrors the bipolarity of the wrong being corrected Thus, the correlativity of gain and loss accounts for the nexus between a particular defendant and a particular plaintiff Nevertheless, even sympathetic readers of Aristotle's text are often puzzled by his reference to correlative gain and loss2 Aris-

37 citations


Journal ArticleDOI
TL;DR: The NHS needs to liberate nurses so they can be 'leaders of change', health secretary Alan Milburn told RCN Congress.
Abstract: WHEN HEALTH secretary Alan Milburn addressed RCN Congress in April, he promised to liberate nurses so they could be 'leaders of change'.

19 citations


Journal ArticleDOI
TL;DR: For many free-market enthusiasts, it is axiomatic that whatever government can do, businesses can do better as discussed by the authors, and many states have, in fact, turned to the private sector to provide such essential public services as garbage pickup and prisons.
Abstract: For many free-market enthusiasts, it is axiomatic that whatever government can do, businesses can do better. Especially during the 1980s, "privatization" was the watchword for those frustrated by the supposed high cost and inefficiency of governmentprovided services.' Many states have, in fact, turned to the private sector to provide such essential public services as garbage pickup2 and prisons.3 In California, even the state courts have succumbed to privatization. Private judging--or "rent-a-judging"-has expanded over the past decade in California into a multimillion-dollar industry.4 Unlike arbitrators or mediators, rent-a-judges are officially part of the state court system, and their judgments have the same effect as judgments of any other state court. Superficially, a rent-a-judge differs from his public court colleagues in only one respect: the source of his paycheck.'

16 citations


Journal ArticleDOI
TL;DR: The telescreen received and transmitted simultaneously, and any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard as mentioned in this paper.
Abstract: The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment .... It was even conceivable that they watched everybody all the time .... You had to live--did live, from habit that became instinct-in the assumption that every sound you made was overheard, and ... every movement scrutinized.'

13 citations


Journal ArticleDOI
TL;DR: Holmes' theory of value as discussed by the authors is based on the classical notion of judicial self-restraint, and it is the basis for the claim of majorities of the majority.
Abstract: I. INTRODUCrION ................. A. The Classical Conception of Judicial Self-Restraint .......... B. The Puzzle of Self-Restraint ...... II. HOLMES'S PHILOSOPHY ............ A. Holmes as Metaphysician of Value . B. Holmes's Concept of Ideals ...... 1. Vitalism and Ideals ........ 2. Why Holmes Was No Progenitor of Modern Economics ...... C. The Place of Duty in Holmes's Theory of Value ............. III. HOLMES'S PHILOSOPHY OF JUDGING . . A. The Duty of the Judge ......... B. The Claim of Majorities ........ C. What of the \"Liberal\" Holmes? ... ..... 450

12 citations


Journal ArticleDOI
TL;DR: Perhaps no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading, as the short provision of the Second Amendment of the Bill of Rights.
Abstract: Perhaps no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading, as the short provision in the Second Amendment of the Bill of Rights. No doubt this stumbling occurs because, despite the brevity of this amendment, as one reads, there is an apparent non sequitur-or disconnection of a sort-in midsentence. The amendment opens with a recitation about a need for "[a] well regulated Militia."' But having stipulated to the need for "[a] well regulated Militia," the amendment then declares that the right secured by the amendment-the described right that is to be free of "infringement"-is not (or not just) the right of a state, or of the United States, to provide a well regulated militia. Rather, it is "the right of the people to keep and bear Arms."

12 citations


Journal ArticleDOI

9 citations


Journal ArticleDOI
TL;DR: When the editors of the Duke Law Journal invited me to Durham to discuss the National Performance Review's regulatory reform recommendations, they mentioned that Vice President Gore had quite naturally been their first choice as mentioned in this paper.
Abstract: When the editors of the Duke Law Journal invited me to Durham to discuss the National Performance Review's regulatory reform recommendations, they mentioned that Vice President Gore had quite naturally been their first choice. So I'm both honored and a bit apprehensive to be here in his place. There is something we both have in common, however: a reputation for being a stiff speaker. His, of course, is undeserved, as those of you who saw him dismantle Ross Perot ifi the NAFTA debate or banter with David Letterman can attest. I especially liked when Letterman asked him how he would like to be addressed: Mr. Vice President? Mr. Gore? Al? He responded that \"Your Adequacy\" would be just fine.' So that is what I am trying to live up to today.

8 citations


Journal ArticleDOI
TL;DR: During the course of Lisa's pregnancy or following the birth of the child, one of the following two scenarios occurs:
Abstract: Lisa, an unmarried woman, is impregnated through the process of artificial insemination by donor (AID) with sperm donated by Andrew, an acquaintance. Lisa and Andrew agree before the insemination that Andrew will have no support obligations towards the child and that he will not seek custody or visitation rights. However, during the course of Lisa's pregnancy or following the birth of the child, one of the following two scenarios occurs:

Journal ArticleDOI
TL;DR: In response to concerns about rising insurance costs, employee safety, and growing demands by nonsmokers for a smoke-free workplace, many employers are adopting policies that restrict or prohibit smoking on the job, and a growing number are taking the additional step of refusing to hire smokers at all.
Abstract: Smoking-related diseases cost the U.S. health care system approximately $24 billion annually!. Including productivity losses, the cost of smoking is $52 billion per year, or $221 for every man, woman, and child in the United States.2 Many of these costs are inevitably borne by America's businesses, which are paying increasingly more for health care, with little left over for expansion and modernization. In response to concerns about rising insurance costs, employee safety, and growing demands by nonsmokers for a smoke-free workplace, many employers are adopting policies that restrict or prohibit smoking on the job, and a growing number are taking the additional step of refusing to hire smokers at all.3 Smokers who face discrimination may attempt to find refuge under Title I of the Americans with Disabilities Act of 1990





Journal ArticleDOI
TL;DR: One of the public sector's most enduring dilemmas is how to improve the performance of government without jeopardizing the nature of the political structure as mentioned in this paper, and this quandary assumes more urgent dimensions at a time when the private sector has made stunning efficiency gains.
Abstract: One of the public sector's most enduring dilemmas is how to improve the performance of government without jeopardizing the nature of the political structure. This quandary assumes more urgent dimensions at a time when the private sector has made stunning efficiency gains. In the last ten years, American business has reengineered itself to regain the competitive edge that many assumed had been lost permanently to Japanese and German industrial enterprises. Today, American workers are the most productive in the world.' Although corporate downsizing inevitably has caused some dislocations, the output of American workers continues to grow impressively and the level of employment has stabilized.2 American companies are again world-class producers of critical goods like computer chips, communications technology, and even automobiles.3 This success virtually compels a comparison between the productivity of the public and private sectors. American government has had the opportunity to track these productivity gains in the corporate sector and initiate changes in management structure to achieve comparable gains. Yet despite rhetoric suggesting otherwise,4 the evidence of government action

Journal ArticleDOI
TL;DR: In an interesting and useful essay in the Duke Law Journal on character impeachment evidence, Professor H Richard Uviller commented on my own Article on the subject' Because I am flattered by the attention, I am not particularly upset by my failure to persuade Professor Uvilla, nor by his apparent failure to understand my argument I do wish, however, that he had not misstated my argument in such a way as to render it stupid and make me appear ignorant of what that learned barrister Horace Rumpole calls "the golden thread" of common law criminal jurisprudence
Abstract: In an interesting and useful Essay in the Duke Law Journal on character impeachment evidence, Professor H Richard Uviller commented on my own Article on the subject' Because I am flattered by the attention, I am not particularly upset by my failure to persuade Professor Uviller, nor by his apparent failure to understand my argument I do wish, however, that he had not misstated my argument in such a way as to render it stupid and make me appear ignorant of what that learned barrister Horace Rumpole calls "the golden thread" of common law criminal jurisprudence-the presumption of innocence2 Ironically, I believe that Professor Uviller does not disagree with the principal conclusion of my Article-that character impeachment evidence of criminal defendants ought to be excluded Moreover, although he comments sarcastically on the analytical approach my Article takes, I suspect that, if he focused more closely on it, he might find it more palatable than he recognizes because the key elements of my approach may be found in his own Article

Journal ArticleDOI
TL;DR: The primary gatekeeper at the door to the federal courts of appeals is the rule that only final judgments are appealable as mentioned in this paper, which has performed this role well, for the most part, but in certain cases, a trial court's error on an interlocutory issue is effectively unreviewable on appeal from a final judgment.
Abstract: The primary gatekeeper at the door to the federal courts of appeals is the rule that only final judgments are appealable.2 The final judgment rule has performed this role well, for the most part.3 In certain cases, however, a trial court's error on an interlocutory issue is effectively unreviewable on appeal from a final judgment. To deal with this type of injustice, the courts and Congress have created a patchwork of exceptions to the final judgment rule.

Journal ArticleDOI
TL;DR: Since the dawn of the computer age, Congress and the courts have struggled with the practical and conceptual difficulties of providing intellectual property protection for computer programs, leaving many questions unanswered.
Abstract: Since the dawn of the computer age, Congress and the courts have struggled with the practical and conceptual difficulties of providing intellectual property protection for computer programs. The Computer Software Copyright Act of 1980,1 enacted in response to these difficulties, took several important steps toward the formulation of a fair and workable form of intellectual property protection for computer programs, while leaving many questions unanswered. Much of the debate over the effect and scope of the protection of computer programs has centered on issues such as which aspects of computer programs are subject to copyright protection2 and whether copyright is even the appropriate form of intellectual property protection for computer programs at all.3 Courts have also struggled to determine which uses of copyrighted programs by ordinary consumers should be permitted and which should be proscribed.4 One effect of the uncertainty regarding the scope of copyright protection for computer programs has been a "crescendo of litigation" in this field.'



Journal ArticleDOI
TL;DR: From the earliest days of the republic, one of the central responsibilities of the Attorney General of the United States has been to advise officers of the executive branch on questions of law.
Abstract: From the earliest days of the republic, one of the central responsibilities of the Attorney General of the United States has been to advise officers of the executive branch on questions of law.' In creating the office, the First Congress identified litigation in the Supreme Court and the provision of legal advice as the duties of the Attorney General: the last sentence of section 35 of the Judiciary Act of 1789 states that

Journal ArticleDOI
TL;DR: For example, the authors argued that the whole purpose of our criminal justice system is to make some effort to prevent people from repeating criminal activity and pointed out that the amount of crime committed by repeat offenders has recently prompted calls for stricter recidivist statutes.
Abstract: "[T]he whole purpose of our criminal justice system is to make some effort to prevent people from repeating criminal activity."2 The Missouri trial judge who made this point to a recidivist defendant may have exaggerated, but concern about the amount of crime committed by repeat offenders has recently prompted calls for stricter recidivist statutes.3 Every state currently authorizes increased punishment for repeat offenders4 under statutes varying in scope,5 harshness,6 and degree of discretion granted to sentencing

Journal ArticleDOI
TL;DR: The Freedom of Information Act (FOIA) as discussed by the authors is a federal law that allows the government to keep secret information related to national defense or foreign policy, such as trade secrets and commercial or financial information.
Abstract: 1. Antonin Scalia, The Freedom of Information Act Has No Clothes, REG., Mar.Apr. 1982, at 14, 15. 2. 5 U.S.C. ? 552 (1988). 3. FOIA exempts from disclosure matters that are: (1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement



Journal Article
TL;DR: In the final week of Richard Nixon's life, I often imagined how he would have reacted to the tide of concern, respect, admiration, and affection evoked by his last great battle.
Abstract: During the final week of Richard Nixon's life, I often imagined how he would have reacted to the tide of concern, respect, admiration, and affection evoked by his last great battle. His gruff pose of never paying attention to media comment would have been contradicted by a warm glow and the ever-so-subtle hint that another recital of the commentary would not be unwelcome. And without quite saying so, he would have conveyed that it would mean a lot to him if Julie and Tricia, David and Ed were told of his friends' pride in this culmination to an astonishing life. When I learned the final news, by then so expected, yet so hard to accept, I felt a profound void. In the words of Shakespeare: "He was a man. Take him. For all in all, I shall not look upon his like again." In the conduct of foreign policy, Richard Nixon was one of the seminal Presidents. He came into office when the forces of