Showing papers in "Yale Law Journal in 1974"

Ways Not To Think About Plastic Trees: New Foundations for Environmental Law

Abstract: Baudelaire's Rave Parisien paints what is quite literally a still life -a dreamscape of a metallic city where groves of colonnades stand in the place of trees and, in the place of water, pools of lead.2 More prosaic but no less unnerving was the recent decision by Los Angeles County officials to install more than 900 plastic trees and shrubs in concrete planters along the median strip of a major boulevard.3 The construction of a new box culvert, it seemed, had left only 12 to 18 inches of dirt on the strip, insufficient to sustain natural trees.4 County officials decided to experiment with artificial plants constructed of factory-made leaves and branches wired to plumbing pipes, covered with plastic and \"planted\" in aggregate rock coated with epoxy.' Although a number of the trees were torn down by unknown vandals\" and further plantings were halted, 7 the tale may not be over. For an article in Sciences suggested recently that, just as advertising

On preserving the natural environment

Abstract: Further consider consideration of the new foundations for environmental law is presented here. Except for the limit of our technology, there is no economic or even utilitarian rationale available for preserving the natural environment. It is possible to imagine that the Sequoia National Forest tells the developer that it wants a ski lift by a certain declivity of its hills and snowiness during the winter and that it needs a four lane highway by the appearance of certain valley passages and obvious scenic turnouts on the mountainsides. The connection between our cultural history and our environmental policy is explained. A nonutilitarian rationale, constitutionally based, is proposed for preserving the natural environment.

Public Employee Bargaining: A Political Perspective

Abstract: Collective bargaining' in public employment is different from collective bargaining in private employment, for \"government is not just another industry.\"2 This proposition I consider self-evident,\" for in private employment collective bargaining is a process of private decisionmaking shaped primarily by market forces, while in public employment it is a process of governmental decisionmaking shaped ultimately by political forces. 4 The introduction of collective bargaining in the private sector restructures the labor market, while in the public sector it also restructures the political processes. However, it does not follow from the proposition that collective bargaining in the public and private sectors is different that col-

Nationality and Human Rights: The Protection of the Individual in External Arenas

Abstract: * This article is excerpted from a book which the authors have in progress. The authors are indebted to their colleagues, W. Michael Reisman and Arie David, for suggestions and critical assistance in the preparation of this article. The Ralph E. Ogden Foundation has been generous in its support of the studies from which this article is drawn. Sterling Professor of Law, Yale Law School. *** Ford Foundation Professor of Law and Social Sciences, Emeritus, Yale Law School. *.** Senior Research Associate, Yale Law School.

The Corporate Interest Deduction: A Policy Evaluation

Abstract: Treatment of the cost of corporate capital has been a significant conceptual and operational problem for the federal tax on corporate income throughout its history. While interest expense is currently deductible in full from corporate income,' no deduction whatsoever is permitted for dividend payments. 2 The unlimited deduction for corporate interest payments originated in 1918 as a temporary measure designed to equalize the effects of the World War I excess profits tax.3 Before 1918, only limited offsets against corporate income were granted for interest payments, 4 apparently because Congress feared that cor-

Congressional Authority to Restrict Lower Federal Court Jurisdiction

Abstract: Separation of powers in the federal government inevitably generates conflicts among the branches. In recent years the executive branch's authority to impound funds appropriated by Congress' and to make war without congressional approval2 has been questioned. In earlier days debate raged over the Supreme Court's authority to nullify legislation passed by Congress.3 A recurrent example of this phenomenon has been the struggle between Congress and the judiciary over the scope of congressional control of federal court jurisdiction. The recent controversy over school busing has highlighted this problem. The problem is, however, neither novel nor peculiar to the busing issue. In considering the first judiciary act Congress debated the scope of its authority to regulate the jurisdiction of the federal courts. In the last twenty years unpopular decisions by federal courts, particularly the Supreme Court, have led to serious discussions of curtailing federal court jurisdiction. After Brown v. Board of Education5 there was a movement to withdraw Supreme Court jurisdiction to hear school desegregation cases.0 During and after the McCarthy era, and perhaps in response to it, the Supreme Court conferred upon citizens what some felt to be unduly broad protection from legislative investigations. 7 This prompted

Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief

Abstract: A significant question in a society where courts are relied upon to protect individual and group interests from unlawful government infringements is who may obtain review of administrative action. Voluminous litigation over the doctrine of standing and widespread dissatisfaction with it by judges and commentators suggest that the question has been a difficult one.' A good deal of the confusion is attributable to a tradition which regards standing as a preliminary question, distinct from the merits of a-claim.2 Such threshold doc-

Informed consent and the dying patient.

Abstract: People afflicted with terminal illness1 rarely die at home. The success of medicine has shifted the locus of dying to public and private health care institutions, 2 thus transferring control over treatment away from the patient and his family to the health care provider and the state. This has been a tacit accommodation to the way health sciences treat the dying, rather than an explicit legal choice. The terminally ill patient may nevertheless wish to forego treatment offered by the health care institution for a number of reasons: religious beliefs, pain and suffering, exhaustion of financial resources,3 acquiescence to death on the loss of control over most bodily functions. The patient's wish may conflict with the interests of the health care providers who are committed to prolongation of life through medical technology,4 or with what seem to be the interests of the state, asserted through laws against suicide and homicide. The application of these laws is fraught with difficulty in cases of \"passive euthanasia,\" 5 the withholding of life-sustaining medical treatment; none-

Due process in the allocation of scarce lifesaving medical resources.

Abstract: Observers from numerous fields have been troubled by the difficulty of making life and death decisions in the allocation of scarce medical resources. 2 An important question for lawyers is whether the decision to deny a scarce medical resource calls for procedural safeguards. The effect of the due process clause 3 in this area has yet to come under systematic scholarly or judicial scrutiny.4 Although one

Utility and Rights: Two Justifications for State Action Increasing Equality

Abstract: In recent years numerous proposals1 have been advanced, some from surprising sources,2 that would move American society toward greater economic equality. Although specific bills designed to guarantee a minimum income have so far failed to pass, practical interest in such legislation and in protecting citizens against specific deprivations is probably higher than in any other period. Still, reform efforts have rarely drawn upon established philosophical tradition to support their efforts. This article begins to draw those connections. It will develop and compare theoretical justifications for state interventions in the market which would guarantee to every member of society either a minimum income or minimum satisfaction of \"just wants.' \" 3 Specifically, it focuses on two justifications-one derived from traditional utilitarian theory,4 the other from a theory of rights put forward most recently and most persuasively by Ronald Dworkin. 5 The utilitarian-based ap-

Fact Finding in the English Court of Chancery: A Rebuttal

Abstract: In a recent article in this Journal Harold Chesnin and Geoffrey Hazard presented a breathtaking thesis: The English Court of Chancery lacked the power to "decide fact issues itself . . . until some time after 1800, at least a decade after the effective date of the Seventh Amendment."1 By "fact issues" the authors mean "contested issues of fact."2 "The authors hypothesize that the office of the Lord Chancellor was not originally endowed with the power to decide questions of fact, though it assumed that power by the nineteenth century."3 This might mean that the Seventh Amendment requires a federal court sitting in equity to submit disputed questions of fact to a jury.4 Because their thesis is couched as an interpretation of the right to jury trial under the American Constitution, it has a potential for mischief in our courts and requires a swift rebuttal. Section I of this article shows that the historical sources contradict the authors' contentions. First, the Court of Chancery did indeed have and exercise fact finding power. Second, when the court delegated factual disputes for trial at law, the verdict was advisory and nonbinding. Section II points to the larger context of the relations between equity and law for an understanding of the Chancery's practice of referring issues of fact to common law trial.

Federal Summary Judgment Doctrine: A Critical Analysis

Abstract: In 1855 the English Parliament passed Keating's Act,1 which provided a summary proceeding for collection of bills of exchange. 2 This predecessor of modern federal summary judgment procedure was designed primarily to identify before trial debtors who sought delay through spurious defense.3 In contemporary American federal practice, however, summary judgment is employed more frequently to identify claimants who lack evidence sufficient to reach the jury and who will therefore probably suffer a directed verdict or its equivalent at trial.4 The importance of summary judgment to the defendant has been enhanced by a specialization of function within the pretrial system as a consequence of the Federal Rules of Civil Procedure. Common law and to a lesser extent code pleading standards required that the complaint contain a factual allegation of each essential element

Alexander Mordecai Bickel

Abstract: First there was courage; courage is always first. If somebody had to be behind a gun directly fronting on a vast massing of power obscenely sworn to Hitler, then of course that person would be young Alex Bickel. He wouldn't have been able to see any reason why it should be anybody else. And when the mightiest enemy of all, the undefeatable Hitler, arrived and set up his siege, out of season, without warning, bitterly as to time and manner, cutting off all hope, Bickel sat and laughed with his friends, or did what work he could. In between the Hitler of Europe and the Hitler of the universe there was never any faltering from courage. Courage is always first. To an intellectual, courage commands intellectual honesty. There were many times in Bickel's life when the opinions to which his thought led him did not make him popular among the people with whom he would naturally have wished to be popular. Some of these opinions may even have been wrong; he never came close to claiming infallibility. But he had reached them by the best means known to him; they were his best, at least for the time, and he stuck with them until he saw reason to change. Of course. There came a day when a question was asked him, and when a \"yes\" might, at the very least, have made possible further movement down the road toward what must have been a much-desired (I dare say the most-desired) goal. The question, mark you, was a close one; an honest and competent man might easily have concluded that the right answer was \"yes.\" Alexander Bickel had come, on balance, to the opposite conclusion. He said \"no,\" and a door closed; \"no\" was not the right answer, not the wanted answer. His name, by low men for low reasons, was doubtless crossed off a list. But it stayed, and stays, on another list-the list of those to whom courage (and therefore honesty) is first. Bickel must have felt rather wry about this, but I don't think there can have been any conflict in his mind. By

Perspectives on Reform of Financial Institutions

Abstract: Reform of financial institutions is a subject that simmers annually on many political back burners but rarely reaches the boiling point. Within one week during the month of August last summer, however, the Administration and Congress heated up the issue with detailed reports proposing major institutional reforms. This change in temperature did not go unnoticed: Spokesmen for the banking community acknowledged that this week could be "one of the most important in the recent history of the Nation's financial structure."' While this does not necessarily mean that changes will occur 2 enough is now brewing to make appropriate a critical evaluation of the issues raised by these proposals. The Department of the Treasury prepared the Administration report,3 which contained legislative proposals derived from an earlier report that the Hunt Commission 4 had submitted to the Administration. Congressional reaction came in the form of a staff report by the House Committee on Banking and Currency, chaired by Congressman Wright PatmanG In October 1978 the Administration submitted to the House and Senate comprehensive legislation embodying its earlier proposals entitled "The Financial Institutions Act of 1973."6 In No-

Precedent and Adjudication

Abstract: The following article is a difficult one. Its unusual style, its sophistication, and its multilayered patterns of thought make considerable demands of the reader. We have therefore taken the step, unique for the Journal, of providing a brief preface. Constitutional review by the Supreme Court has evoked two great crises of legitimacy in this century: once, as a reaction to invalidations of New Deal economic legislation in the 1930's,4 and again in response to the activist decisions of the Warren Court.' These crises have generated important views concerning proper guidelines for the Court; roughly, such views have focused either on the development of general adjudicatory principles that are neutral in character' or on the political and institutional role of the Court in relation to other institutions.d In an article published six years ago in the Stanford Law Review,' Professor Deutsch analyzed the various attempts to formulate successful theories of constitutional adjudication. He there argued that none of these theories were satisfactory and concluded by suggesting that a contextual approach to the question is required.' In the present piece, Professor Deutsch offers an example of such an approach. Examining the Florida Lime & Avocado Growers litigation,

Traffic in the Traffickers: Extradition and the Controlled Substances Import and Export Act of 1970

Abstract: On March 15, 1971, Auguste Joseph Ricord' was indicted in the United States District Court for the Southern District of New York2 as the leader of a narcotics smuggling conspiracy 3 responsible for a sizable share of the United States drug market. Ricord, himself, was characterized at the time by United States Attorney Whitney North Seymour as \"one of the most important, if not the most important, source\"4 of United States heroin in recent years. Since Ricord, a French citizen residing in Paraguay, was outside United States territory, his trial on these charges became dependent upon the success of United States efforts to obtain his custody.5 Accordingly, the State Department on April 3, 1971, sought Ricord's provisional arrest in Paraguay\" and on May 24, 1971, made a formal request for his extradition.7 The United States request was based on the 1913 Extradition

Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791

Abstract: There is some evidence that courts of equity in the eighteenth century and before, and in the early part of the nineteenth century, relied on procedures involving jury trial to determine disputed questions of fact. Because the evidence is modest it suggests rather than demonstrates the validity of the inferences that may be drawn from it. At the same time these inferences may be significant in assessing the constitutional position of jury trial in this country. This article seeks to contribute to that assessment and to encourage further research. Broadly, the evidence suggests that at the time of the adoption in 1791 of the Seventh Amendment guarantee of jury trial "in Suits at common law," the practice in the English Court of Chancery was in transition. The court was moving from a rule that disputed fact issues were generally, if not invariably, submitted to juries to one that made such submissions discretionary. The character of this transformation may be inferred from the language of cases decided at different points before and after 1791. In Webb v. Claverdon,2 decided in 1742, the court said: