Showing papers in "University of Pennsylvania Law Review in 1975"

Some Kind of Hearing

Abstract: It was particularly affecting to be invited to give the Owen J. Roberts lecture at this law school, of which my father-in-law, Chief Justice Horace Stern of Pennsylvania, was a distinguished graduate, a part-time teacher and a long-time trustee. The honor accorded me is even greater in that this is the hundredth anniversary of Justice Roberts' birth. Although I did not have the good fortune to know the Justice more than casually, I accept the eloquent characterization by Chief Justice Stern who knew him so well:

Presentation of Evidence and Factfinding Precision

Abstract: For at least a century a debate has been raging about the relative advantages of the adversary and nonadversary presentations of evidence as tools in the quest for the truth.1 Most of the time this debate proceeded in a mild sfumato of conceptual ambiguity: Differences in the styles of developing evidence were often conflated with differences in arrangements concerning the collection of evidence, admissibility rules, and similar related issues. Beyond that, until quite recently, the arguments advanced were speculative, and information was exclusively in the form of impressions and intuitive insights. In our age, so enamoured of scientific methodology and so desirous of replacing "soft" by

Judge Frankel's Search for Truth

Abstract: The theme of Judge Marvin E. Frankel's Cardozo Lecture is that the adversary system rates truth too low among the values that institutions of justice are meant to serve. Accordingly, Judge Frankel takes up the challenging task of proposing how that system might be modified to raise the truth-seeking function to its rightful status in our hierarchy of values. His proposals, delivered with characteristic intellect, grace, and wit, are radical and, I believe, radically wrong. Judge Frankel directs his criticism at the adversary system itself and at the lawyer as committed adversary. Challenging the idea that the adversary system is the best method for determining the truth, Judge Frankel asserts that "we know that others searching after facts-in history, geography, medicine, whatever-do not emulate our adversary system."1 I would question the accuracy of that proposition, at least in the breadth in which it is stated. Moreover, I think that to the extent that other disciplines do not follow a form of adversarial process, they suffer for it. Assume, for example, a historian bent upon determining whether Edward de Vere wrote the plays attributed to William Shakespeare, or whether Richard III ordered the murder of the princes in the Tower, or even whether it was militarily justifiable for the United States to devastate Nagasaki with an atomic bomb. Obviously, the historian's inquiry would not be conducted in a courtroom, but the conscientious historian's search for truth would necessarily involve a careful evaluation of evidence marshalled by other historians strongly committed to sharply differing views on those issues. In short, the process of historical research and judgment on disputed issues of history is-indeed, must be-essentially adversarial. In medicine, of course, there is typically less partisanship than in historical research because there is less room for the play of political persuasion, and less

The urban transportation problem

Abstract: This critical examination of the Urban Mass Transportation Act of 1964 attempts to identify the urban transportation problem and focuses on 3 aspects of the Act: the plight of the transportation disadvantaged; congestion; and the "journey to work". The social costs of automobile commuting are analyzed with particular reference to the social evils of pollution, energy waste, accidents and the misalocation of urban land. The optimal solution to the problem would discourage automobile commuting and would act to improve the attractiveness of the urban area. Such a solution implies the problem is one of land planning. The adoption of a system of zoning streets for particular categories of use with a view toward discouraging automobile commuting and improving the attractiveness of the urban area is seen as the present task. Implementation of the land planning solution will require a lawyer's skills and mastery of a complex body of real property law.

Parol Evidence Process and Standardized Agreements Under the Restatement (Second) of Contracts

Abstract: One of the unassailable rudiments of contract law is that the written manifestation of assent is not the contract but merely constitutes evidence thereof.' The scope of the \"contract\" may or may not be coextensive with the documentation evidencing it. 2 The writing may be frugal; it may require explanation or supplementation. 3 Or the writing may appear to be exhaustive and may even contain an expression that it is the final, complete, and exclusive manifestation of the parties' assent.4 Regardless of the sparsity or elaborateness of the writing, the rudiment prevails: the writing is only evidence of the contract. The scope of the contractual obligation-the \"circle of assent\"--may be gleaned from sources other than the writing.5 If the writing is incomplete, the gaps are filled judicially with reasonable times, reasonable performance terms, and even reasonable prices.6 The disease of indefiniteness will now be fatal only in the extreme case in which two elements are not present: the parties' intention to be bound and a reasonably certain basis for affording a remedy. 7 The augmentation of judicial gap-

Treating Blacks as If They Were White: Problems of Definition and Proof in Section 1982 Cases

Abstract: Immediately after the Civil War, the United States Congress enacted, over presidential veto, a statute popularly known as the 1866 Civil Rights Act. In 1870 that statute was reenacted, and a major part is presently codified as sections 1981 and 1982 of title 42 of the United States Code. Those sections lay virtually moribund for a hundred years, until they were reviewed in 1968 as a judicial contribution to the mid-twentieth century civil rights movement. Passed in the wake of Union victory, the 1866 Civil Rights Act represented an attempt by the victors to crystallize the metaphysics of emancipation into the perquisites of citizenship and to give “real content to the freedom guaranteed by the Thirteenth Amendment.” The language of section 1982 is deceptively simple: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. Since 1968 there has been considerable litigation under this statute, but little appreciation of the ambiguity of the words “same right … as is enjoyed by white citizens.” Decisions tend to discuss the evidence presented in great detail without relating that evidence to a carefully drawn definition of the statutory language and the elements of the prima facie case which that definition should supply. Until we know what the plaintiff must prove, however, evidentiary analysis lacks direction, and until we know what the statutory language means, there will be no consistent approach to what the plaintiff must prove. In this Article we shall attempt to define the words “same right … as is enjoyed by white citizens,” to set forth the elements of the prima facie case derived therefrom, and to consider what evidence, inferences, and presumptions would permit a plaintiff to establish those elements. Our inquiry is pertinent not only to section 1982 cases: Section 1981 contains parallel language with respect to contract actions, and Title VIII of the Civil Rights Act of 1968 (as well as several state and local statutes) is directed to similar ends. Therefore, while our definition of the “same right” language is most relevant to sections 1982 and 1981, our discussion of evidentiary considerations is also applicable to civil rights litigation in general.

The Treatment of Security Interests in After-Acquired Property under the Proposed Bankruptcy Act

Abstract: t Associate Professor, University of Minnesota Law School. B.A., Williams College, 1968; Ph.D., Yale University, 1972; J.D., Yale Law School, 1975. The author wishes to thank Professor Grant Gilmore of the Yale Law School for reading and commenting on an earlier draft of this Article. I 11 U.S.C. §§ 1-1103 (1970). The proposed Act, sponsored by the Commission on the Bankruptcy Laws of the United States, was originally introduced in 1973. See H.R. 10792, 93d Cong., 1st Sess. (1973); 119 CONG. REC. 33445 (1973). The Commission bill has been reintroduced, see S. 236, 94th Cong., 1st Sess. (1975), H.R. 31, 94th Cong., 1st Sess. (1975); 121 CONG. REC. 6467 (daily ed. April 22, 1975). A proposal supported by the National Conference of Bankruptcy Judges is also before Congress. See S. 235, 94th Cong., 1st Sess. (1975); H.R. 32, 94th Cong., 1st Sess. (1975); 121 CONG. REc. S6467 (daily ed. April 22, 1975); 120 CONG. REC. H9249 (daily ed. Sept. 12, 1974). This Article principally addresses the problems of H.R. 31. Significant differences in H.R. 32 will be mentioned in the notes. 2 For a general discussion of some of the changes embodied in the proposed Bankruptcy Act, see Symposium-Bankruptcy Reform-1973, 21 U.C.L.A.L. REV. 381 (1973). The legislative history of the 1973 Act is recounted briefly in Cyr, The Bankruptcy Act of 1973: Back to the Drafting Board, 48 Am. BANKR. L.J. 45 (1974). For a more detailed consideration of some of the proposed Act's most controversial sections, see, e.g., Broude, Jurisdiction and Venue Under the Bankruptcy Act of 1973, 48 Am. BANKR. L.J. 231 (1974); Brudney, The Bankruptcy Commission's Proposed \"Modifications\" of the Absolute Priority Rule, 48 AM. BANKR. L.J. 305 (1974); Phelan, The Proposed Bankruptcy Administration (the \"FBA\")-Bureaucratic Alphabet Soup Gets a Bigger Bowl, 48 AM. BANKR. L.J. 341 (1974); Twinem, Bankruptcy Report: Some Limitations on Creditors' Rights, 29 Bus. LAW. 353 (1974); Viles, Non-Revolutionary Bankruptcy Act Proposed by the National Bankruptcy Commission, 29 Bus. LAW. 1117 (1974); Weintraub & Levin, Chapter VII (Reorganizations) As Proposed by the National Bankruptcy Commission: The Widening Gap Between Theory And Reality, 47 AM. BANKR. L.J. 323 (1973). ' The proposed Act is sponsored by the Commission on the Bankruptcy Laws of the United States, which was created by the Act ofJuly 24, 1970, Pub. L. No. 91-354, 84 Stat. 468. The Commission's mandate was to \"study, analyze, evaluate and recommend changes to the [Bankruptcy] Act... in order for such Act to reflect and adequately meet the demands of present technical, financial, and commercial activities.\" Id. § l(b). The Commission submitted a report explaining its proposals. See REPORT OF THE COMMISSION

Advocate, the Truth, and Judicial Hackles: A Reaction to Judge Frankel's Idea

Abstract: It must be distressing to preside over the rape of Truth in the courtroom At the altar of justice, before the Judge's very eyes, the atrocity is perpetrated in a casual, routine manner bespeaking long and regular usage And the rapists are people who proclaim themselves honorable and devoted to the victim Apart from the occasional nostalgic ex-litigator who relishes the spectacle, the judicial witness may be tempted, understandably enough, to take a more heroic role But if the judge breaks with customary passivity, vaulting the bench and riding to the rescue, his merciful mission often turns out to be a lame and embarrassing sortie It's enough to raise a judicial hackle or two Judge Frankel's hackles are as stable as most, to my knowledge Yet they are clearly ascending Their rise invites us to revisit an old acquaintance: the adversary myth Our beloved dialectic model of litigation offers much in the way of healthful mental exercise, he suggests, but the "Truth" that emerges may be more synthetic than real For the collision of opponents is better designed to find an athletic victor than to search for Truth Still, it seems to me that properly directed and purged of obvious abuses, the juxtaposition of two contrary perspectives, the impact of challenge and counter-proof, often discloses to a neutral intelligence the most likely structure of Truth Thus, at least in those instances (which I may regard as more common than does Judge Frankel) where neither side knows certainly the actual contours of a past occurrence, I conclude that the adversarial encounter, for all its hazards, serves as one of the better methods of reconstruction Venturing into the causes of Judge Frankel's dissatisfaction and appraising his call for major surgery on the system, it may

Enforcement of Government Antitrust Decrees by Private Parties: Third Party Beneficiary Rights and Intervenor Status

Abstract: The problem upon which this Article will focus can perhaps best be illustrated by the following hypothetical scenario:' The United States, through the Department ofJustice, has brought a civil antitrust suit against IBM, alleging a number of antitrust violations. One of these is IBM's practice of leasing rather than selling its machines. 2 After appropriate preliminary sparring, the parties enter into a settlement of the suit which, once approved by the court and incorporated into a consent decree, bars the practice of leasing unless purchases are also permitted on terms which "shall have a commercially reasonable relationship to the lease charges. '3 Alternatively, the settlement negotiations fail, the case goes to trial and, after several appeals and remands, final judgment is entered against IBM to the same effect.