Supra Note Research Articles

Conflicting Visions: A Critique of Ian Macneil's Relational Theory of Contract

* Norman & Edna Freehling Scholar and Professor of Law, Illinois Institute of Technology, Chicago-Kent College of Law. Some of the ideas developed in this paper were presented to the Contracts Section of the Association of American Law Schools as part of a panel on The Relational Theory of held at the 1988 Annual Meeting in Miami Beach, Florida. Financial support for this project was provided by the Marshall D. Ewell Research Fund of the Chicago-Kent College of Law. Research assistance was provided by Craig Truitt. Finally, I wish to thank Jay Feinman for commenting on an earlier draft. I I introduced this thesis in Randy E. Barnett, Contract Scholarship and the Reemergence of Legal Philosophy, 97 Harv. L. Rev. 1223 (1984) (book review), and greatly expanded it in Randy E. Barnett, A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986) [hereinafter Barnett, Consent Theory]. A condensed and revised account of this approach appears in Randy E. Barnett, Rights and Remedies in a Consent Theory of Contract, in Liability and Responsibility: Essays in Law and Morals 135 (R.G. Frey & Christopher W. Morris eds., 1991). 2 Although these two expressions of the principle serve well for most purposes, they are not strictly accurate. A more complete formulation is that contractual obligation arises when a person voluntarily performed acts that conveyed her intention to create a legally enforceable obligation by transferring alienable rights. Barnett, Consent Theory, supra note 1, at 300. This more elaborate version is needed to account for the restrictions that are properly placed on people's ability to legally bind themselves. This limitation is reflected in, for example, the rules governing the remedy of specific performance. See Randy E. Barnett, Contract Remedies and Inalienable Rights, 4 Soc. Phil. & Pol'y 179 (1986). Although I describe this as the traditional view, it represents a rejection of the modern Willistonian-Restatement approach that places the concept of promise (as opposed to consent) at the heart of contract. A promise may or may not be accompanied by an explicit or implicit manifestation of intention to be legally bound. See Randy E. Barnett, Some Problems with Contract as Promise, 77 Cornell L. Rev. 1022 (1992).

International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News

reasoning in creating property rights, Hayek is the antithesis of the Socratic philosopher. Nonetheless, Hayek has made rational argument, of the type he is suspicious of, for relying on customary rules. 101 But when all is said and done, there still are cases where custom will fail as well, as the above discussion of Dow Jones reveals. 102 As a result, the relative desirability of the two methodologies depends upon the comparative magnitude of their imperfections. In a world in which analysts were perfectly skilled in what they do, custom could be dispensed with as a way station along the road to the 99 See supra text accompanying note 3. 100 See supra text accompanying notes 1-2. 101 See, e.g., Gray, supra note 8. 102 See supra text accompanying notes 91-98. This content downloaded from 157.55.39.111 on Sat, 17 Sep 2016 05:10:15 UTC All use subject to http://about.jstor.org/terms 126 Virginia Law Review [Vol. 78:85 optimal collective delineation of property rights. As long as lawmakers are plagued with imperfect knowledge, however, the institutional dominance of analytical methods always will remain contestable. The best that can be said is that custom is deep, and works well in narrow domains, while cost/benefit analysis has greater range but

The Function of Mediation in China: Examining the Impact of Regulations Governing the People's Mediation Committees

THE FUNCTION OF MEDIATION IN CHINA: EXAMINING THE IMPACT OF REGULATIONS GOVERNING THE PEOPLE'S MEDIATION COMMITTEES Eric J. Glassmant Ye Chengmei ... was beaten by her husband Pan Chenggong over a trifling matter. Ye's brother brought 14 young men with wooden sticks and spades to teach his brother-in-law a lesson. Hearing the news, Pan Chenggong organized more than 20 young men to fight back. At this critical moment, 59-year-old Ye Bingyan, a mediator, appeared and persuaded them to stop the fight and sit down to talk. Under the persuasion and educa- tion on related legal regulations by the mediator, Pan admitted his wrongdoings and went to the home of his wife's parents to make an apology.' Ye Bingyan is one of the more than six million civil dispute mediators in the People's Republic of China (P.R.C.). 2 A member of his village's People's Mediation Committee, Ye is credited by China's official press with having resolved 154 civil disputes over the last seven years. 3 His accomplishments include the prevention of fifteen gang fights, fourteen homicides or suicides, and five divorces. With more than 950,000 committees spread throughout the na- tion, China's civil mediation system is the largest dispute resolu- tion program in the world. Over seven million disputes are resolved through the use of mediation each year in China, 6 far surpassing the t M.Ed., University of California, Los Angeles; J.D., Georgetown University (1992). I thank James Feinerman for his support and insights. 1. Mediators Help Ensure Social Stability, Xinhua News Agency, Oct. 31, 1989, available in LEXIS, Nexis Library, Xinhua File. 2. Ren Jianxin, Mediation, Conciliation, Arbitration and Litigation in the People's Republic of China, 15 INT'L Bus. LAW. 395, 395 (1987). 3. Mediators Help Ensure Social Stability, supra note 1. 4. Id. 5. Ren, supra note 2, at 395. The cited statistics are available only in the official Chinese press. Due to their uncertain reliability, these figures are best viewed as general guideposts rather than as definitive indicators. 6. Id.

Unleashing a Tiger: Financial Deregulation in Taiwan

ARTICLES UNLEASHING A TIGER: FINANCIAL DEREGULATION IN TAIWAN Michael S. Bennettt I. INTRODUCTION For a nation of only twenty million people, the accumulation of wealth in the Republic of China ( Taiwan ) is remarkable. At roughly US$90 billion and rising, its foreign exchange reserves are the largest in the world.' Deposits in the official banking system at the beginning of 1992 exceeded US$300 billion. 2 Almost another US$300 billion of liquid savings is believed to exist outside of the official banking system, with a significant amount of such nonbank savings consisting of private gold holdings. 3 Even excluding depos- its outside the official banking system, the roughly US$15,000 of official deposits per person in Taiwan is almost half of the amount of per capita deposits in Japan, whose per capita GNP is three times greater than that of Taiwan. As the statistics recited above suggest, Taiwan has very suc- cessfully engaged in the mercantilist enterprise of hoarding capital. The island is bursting with liquidity as a result. However, Taiwan's financial system has not yet proven capable of unleashing the is- t Associate, O'Melveny & Myers (New York); J.D., Columbia University School of Law. I gratefully acknowledge the invaluable assistance of Harold B. Dichtes, J.D. expected 1994, Harvard Law School. 1. Sitting on Its Billions, ECONOMIST, Mar. 14, 1992, at 97. For an interesting discussion of Taiwan's foreign exchange reserves see Nigel Holloway, Taiwan Too Re- served, FAR E. ECON. REV., Jan. 31, 1991, at 48. 2. Sitting on Its Billions, supra note 1, at 97. 3. See, e.g., Jane K. Winn, Banking and Finance in Taiwan: The Prospects for Internationalization in the 1990s, 25 INT'L LAW. 907 (1991); A Dangerous Game in Taipei, ECONOMIST, Sept. 9, 1989, at 97. Unofficial depository institutions in Taiwan include underground investment houses, neighborhood loan circles, rotating credit clubs, and companies that take deposits from their employees. 4. Sitting on Its Billions, supra note 1, at 97. Taiwan's per capita GNP is approxi- mately US$8000.

Releasing the Grays: In Support of Legalizing Parallel Imports

COMMENTS RELEASING THE GRAYS: IN SUPPORT OF LEGALIZING PARALLEL IMPORTS Andrew Rufft I. INTRODUCTION Imagine for a moment, or fantasize if you wish, that you have come upon a large sum of money and have decided to spend it on a new imported luxury car. You tour the lots of various authorized importers-Lexis, BMW, Mercedes, and so on. You compare prices, models, and colors. Perhaps you have even decided on the car which is perfect for you, let's say a BMW seven series. Now a friend tells you that you have not really exhausted your options. You can buy a round-trip ticket to Germany, purchase your BMW there, pay for transport to the United States, customs duties and costs for conversion to U.S. emissions and safety standards and still save money, not to mention the free trip to Europe.l You won't be breaking the law-in fact, President Reagan referred to similar '2 im- ports by members of his administration as standard practice. Your friend has inspired you to do some creative thinking of your own. You recall that your neighbor, Fred, is also contemplat- ing purchasing a luxury import. If you bought two cars while in Europe, you could save Fred the cost of purchasing through an au- t J.D. expected 1994, UCLA School of Law. The initial research for this Com- ment was conducted in Taipei, Taiwan. My sincerest thanks to Robin Winkler, Gene Chao, and Mark Grady for their generous assistance and insightful comments. 1. Estimates range as to how much can be saved by importing cars independently depending on the model of car and the fluctuation of currency rates between markets. By 1985 estimates, consumers could knock $8000 off the price of certain Mercedes mod- els by purchasing them abroad and paying for conversion to U.S. standards. See Ed- ward Boyer, The Assault on the Right to Buy Cheap Imports, FORTUNE, Jan. 7, 1985, at 89. Elsewhere it has been found that foreign car purchasers can knock 25% off the price of some models by purchasing them from abroad and importing them into the United States. See Maks Westerman, The $7 Billion Gray Market: Where It Stops, No- body Knows, Bus. WK., Apr. 15, 1985, at 86. 2. Westerman, supra note 1, at 86.

Aristotle's Paradox and the Self-Incrimination Puzzle

conception of compulsion is conceptually unflawed-S is when it is impossible for S to do otherwise' 2 0-the mechanism Wigmore used to implement this conception seems too narrow to explain even the historic function of the self-incrimination clause. If this assessment is accurate, one would expect courts to reject the test for coercion. The courts began to do this in the 1930s and 1940s as they moved to embrace a normative test. C. WRONGFUL EXTERNAL FORCES Not long after Wigmore published his treatise, courts began to shift the focus from the suspect's will to the police conduct.' 2 ' By the mid-1940's, disciplining of state law enforcement officers became a principal purpose of the . . .confessions rule.' 12 2 The rationale for this change was never clearly expressed. One explanation is that some police conduct should be prohibited simply 119 See Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 443 (1987). To be fair to Wigmore, he argued that the rule prohibiting admission of confessions was independent of the fifth amendment self-incrimination bar against courtroom testimony. 4 J. WIGMORE, A TREATISE ON EVIDENCE, at § 2266. The rule prohibiting admission of confessions, he argued, was a evidentiary rule; the fifth amendment self-incrimination bar against courtroom testimony, a constitutional privilege. Id. Today, however, the two doctrines have merged. The fifth amendment prohibits self-incriminating testimony; it would necessarily also bar admission of self-incriminating statements. Whatever formal distinctions might exist in raising these claims, see id., the substance of each claim is that the speaker was forced against his will to give incriminating testimony. Whether one calls the testimony compelled or involuntary seems irrelevant. Thus, to argue, as Wigmore does, that some confessions would not be and vice-versa, id., seems quite bizarre today. 120 See WIGMORE ON EVIDENCE, supra note 12, at § 824. Harry Frankfurt articulates essentially the same standard: S acts unfreely only when S's inclination to avoid the undesirable consequence he faces is irresistible; it is impossible for him to bring himself to accept that consequence. H. FRANKFURT, supra note 18, at 49. 121 Miranda v. Arizona, 384 U.S. 436, 507 (1966) (Harlan, J., dissenting) (noting the Court's initial emphasis on reliability which was later supplemented by concern over the legality and fairness of the police practices in an accusatorial system of law enforcement.). 122 Paulsen, The Fourteenth Amendment and the Third Degree, 6 STAN. L. REV. 411, 419 (1954). 1991]

Legality and Empathy

ly stated, therefore, the question presented by all three cases is whether this discrimination [in AFDC benefits] on the basis of length of in State violates the Fifth and Fourteenth Amendments. But this abstract statement conceals the flesh, blood and heart of the true questions. The facts of these cases make three points clear that frame and limit the constitutional issue.242 Just as the abolitionist lawyers stressed the persons affected by the fugitive slave laws,243 Cox and Lesnick in the brief and Cox at oral argument returned again and again to the individuals involved. Cox's argument used their names and their stories to make his points. The plaintiffs were back home;244 they are mothers of dependent children without present husbands who moved into the new jurisdiction either to go back home ..., or rejoin their families, or to get help from some person, or perhaps to get job; and then who are left absolutely destitute when misfortune occurs.245 With the one-year residency requirement for eligibility, woman who left Pennsylvania to help aging grandparents and was absent few before returning to Pennsylvania was denied AFDC;246 Vera Barley, woman committed to St. Elizabeth's Hospital in the District of Columbia for 20-odd years and who became competent to be released had not been resident for one year in the District of Columbia and was forced to remain in the hospital.247 Families not eligible for AFDC would be separated: In the case of Juanita Smith, who had virtually grown up in Pennsylvania and who had returned home from Delaware after an absence of a few years, the residency requirement left her with the alternative of going back to Delaware or losing custody of her children: Well ... we'll take your children away from you and provide institutional care which might run anywhere from six months to two years. And this, at least, will provide them with shelter.248 Cox, having set descriptive stage of the personal realities of those fundamental right. Id. at 10. The Connecticut statute interfered with the of indigent individuals to travel to Connecticut, id. at 11, and the right to establish residence in the state. Id. at 19. And, [a]s to those persons who choose to remain in Connecticut [despite their ineligibility for AFDC, the statute] in effect makes the to enjoy meaningless because it forces on them life devoid of any humane quality. Id. at 20. 242. Supplemental Brief for Appellees on Reargument at 3 (emphasis added). 243. R. COVER, supra note 91, at 216. 244. Transcript of Reargument, in 68 LANDMARK BRIEFS, supra note 234, at 382.

How Cartels Punish: A Structural Theory of Self-Enforcing Collusion

* Law Clerk to the Hon. James K. Logan, United States Court of Appeals for the 10th Judicial Circuit; Assistant Professor, Northwestern University School of Law (beginning August 1987); Research Fellow, American Bar Foundation (beginning August 1987). B.A. Yale University, 1981;J.D. Yale University, 1986; Ph.D Candidate (Economics), Massachusetts Institute of Technology. I thank John Donohue, Henry Hansmann, Al Klevorick, George Priest, Garth Saloner, Steven Salop, Richard Schmalensee, Louis Schwartz, Oliver Williamson, and participants of seminars at Cardozo, Duke, Emory, Iowa, Northwestern, and Yale for valuable comments. Financial support from the Yale Center for Studies in Law, Economics and Public Policy is gratefully acknowledged. 1. Structural theories have many antecedents. See, e.g., G. Stigler, A Theory of Oligopoly, in The Organization of Industry 39-63 (1968); Hay & Kelley, An Empirical Survey of Price Fixing Conspiracies, 17 J.L. & Econ. 13 (1974). More generally, these theories follow the Structure-Conduct-Performance (S-C-P) paradigm of Joseph Bain, under which structural variables (such as seller concentration) were modeled to affect conduct variables (such as collusion or competition) which in turn were to affect performance variables (such as profits). J. Bain, Industrial Organization 43 (2d ed. 1968). Although conduct can conversely affect structure, see, e.g., infra note 4 (predatory behavior will influence seller concentration), such feedback effects are beyond the scope of this Article. Bain's S-C-P paradigm has gained widespread acceptance. See, e.g., F. Scherer, Industrial Market Structure and Economic Performance 3-7 (2d ed. 1980); Weiss, The Structure-Conduct-Performance Paradigm and Antitrust, 127 U. Pa. L. Rev. 1104 (1979). 2. For example, Judge Richard Posner has championed a structural approach for detecting and punishing antitrust collusion. See R. Posner, Antitrust Law: An Economic Perspective 55 (1976); R. Posner & F. Easterbrook, Antitrust: Cases, Economics Notes and Other Materials 336 (1981); 6 P. Areeda, Antitrust Law ? 1430, at 178-82 (1986). 3. The Federal Trade Commission has examined structural characteristics to focus investigative resources on suspect industries. For a history of the FTC's attempts at targeting collusion, see D. Pender & M. Coate, Case Generation and Remedies 8 (F.T.C. Collusion Project Working Paper No. 3, June 29, 1984) (unpublished paper on file at the Columbia Law Review). 4. At least one court has considered structural evidence as a plus-factor for inferring the actual existence of collusion. See, e.g., Wall Products Co. v. National Gypsum Co., 326 F. Supp. 295 (N.D. Calif. 1971) (stressing structural characteristics of the relevant market that predisposed it to collusion); see also R. Posner, supra note 2, at 73 & n.52 (discussing implications of case). While this Article investigates how structure affects collusive behavior-that is, efforts to make competitors cooperate-the structural approach also applies to identifying

Abolishing the Hearsay Rule

Abolishing the Hearsay Rule

Court-Appointed Scientific Expert Witnesses: Unfettering Expertise

Court-Appointed Scientific Expert Witnesses: Unfettering Expertise

A Theory of Tort Liability for Sexual Harassment in the Workplace

t A.B. 1984, Bryn Mawr College; J.D. Candidate 1987, University of Pennsylvania. I See generally Goodman, Sexual Harassment: Some Observations on Distance Travelled and Distance Yet to Go, 10 CAP. U.L. REV. 445, 448-52 (1981) (discussing history of sexual harassment in United States). See also L. FARLEY, SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB 56-68 (1980) (history of sexual harassment from 1860's to beginning of modern labor movement). This Comment focuses on harassment of women by men because sexual harassment in employment context is generally viewed as a problem faced exclusively by women: [T]he common denominator is that perpetrators tend to be men, victims women. C. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 28 (1979). The analysis presented herein, however, could conceivably apply to sexual harassment of men by women, women by women, and men by men. 2 MacKinnon broadly defines sexual harassment as the unwanted imposition of sexual requirements in context of a relationship of unequal power. C. MACKINNON, supra note 1, at 1. Farley's definition refers specifically to workplace harassment: unsolicited nonreciprocal male behavior . . . that asserts a woman's sex role over her function as a worker. L. FARLEY, supra note 1, at 14. The Working Women's Institute provides a more precise definition:

Protecting the Look and Feel of Computer Software

Protecting the Look and Feel of Computer Software

Is There a Property Interest in Scientific Research Data

data. The cause of action most suited protecting data is a form of unfair competition called the taking of the fruit of 142. Sampson & Murdock Co. v. Seaver-Radford Co., 140 F. Supp. 539, 541 (1st Cir. 1905) (dictum) (concerning all arts and sciences); Rubin v. Boston Magazine Co., 645 F.2d 80, 84 (1st Cir. 1981) (limited protection of scientific material when used for scientific, scholarly, news reporting, or like purposes). Cf. 1 M. NIMMER, supra note 46, § 2.11[B], at 2-161 (public interest may justify copying substantial portions of literal form of expression of other kinds of factual works). 143. Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222, 228 (D. Md. 1981). 144. See Shipley & Hay, supra note 17, at 151. 474 HIGH TECHNOLOGY LAW JOURNAL Vol. 1:447 another's time and effort for competitive advantage. The United States Supreme Court first articulated the doctrine of misappropriation in International News Service v. Associated Press.145 In that case, the Court held actionable as misappropriation the conduct of a news-gathering organization in systematically copying and selling clients fresh foreign news that another service had gathered abroad. The Court further held that the news service which had acquired the news items by its organized expenditure of labor, skill, and money had thereby acquired a quasiproperty interest in the news, which would be valid only while the news remained hot. 146 The court observed that no one may claim a monopoly on the gathering or distribution of news which is only the report of information in the public domain, 147 but held that even if the competitor acknowledged the source of information, when the competitor endeavors to reap where [he] has not sown, 148 the transaction speaks for itself, and a court of equity ought not hesitate long in characterizing it as unfair competition in business.149 The International News Service approach opens the possibility for the judicial recognition of quasi-property rights in scientific research data. The basis of the Court's recognition of a quasi-property right, however, does not appear be significantly different from the sweat of the brow rationale for copyright in compilation cases. 150 Because this rationale has been rejected, 15 1 it should not be used as a basis for providing protection of raw data under the guise of quasi-property rights. In addition, raw scientific data may be sufficiently different from news so as not justify the recognition of quasi-property rights in that data. Yesterday's news is old hat, so that the quasi-property right expires quickly. It is not nearly so simple determine whether raw data is hot or cold. Even if the sweat of the brow doctrine were revived, and a suitable test developed for applying quasi-property rights raw data, the 145. 248 U.S. 215 (1918). 146. International News Service held that although: [n]either party has any remaining property interest as against the public in uncopyrighted news matter after the moment of its publication, it by no means follows that there is no remaining property interest in it as between themselves .... Regarding the news, therefore, as but the material out of which both parties are seeking make profits at the same time and in the same field, we hardly can fail recognize that for this purpose, and as between them, it must be regarded as quasi property, irrespective of the rights of either as against the public. Id. at 236. 147. Id. at 241. 148. Id. at 239. 149. Id. at 240. 150. See supra text accompanying notes 41-47 and 57-63. 151. See supra notes 47 and 49 and accompanying text. 1986 PROPERTY INTEREST IN SCIENTIFIC RESEARCH DATA 475 states would not automatically be able provide such protection researchers. One must first determine whether federal copyright law has preempted misappropriation doctrine, at least as it might apply scientific research data. A. Doctrine of Preemption Section 301 of the 1976 Act provides that federal copyright law preempts all state law rights and causes of action that are equivalent those protected by the federal Copyright Act. 152 Section 301(b) further provides that federal law does not preempt state causes of action

Rationalizing Antitrust Cluster Markets

t I would like thank Peter Ezersky, Al Klevorick and Richard Schmalensee for helpful comments. Special thanks go Thomas Welch for piquing my interest in this subject and Walter Vandaele for encouraging my research. 1. The courts' objective in defining the relevant line of commerce for antitrust purposes has been to recognize competition where, in fact, competition exists. Brown Shoe Co. v. United States, 370 U.S. 294, 326 (1962). Because substitutes compete, substitutability in demand or supply has been the prime criterion for setting the boundaries of a market. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956) (goods that are reasonably interchangeable by consumers should be placed in the same market); Brown Shoe Co., 370 U.S. at 325 n.42 (cross-elasticity of production facilities may also be an important factor in defining a product market). By this substitutability criterion, if an antitrust defendant produced several goods (that is, was a multiproduct firm), a separate market would be defined for each of the defendant's consisting of each product's respective substitutes. See U.S. Dep't of Justice, Merger Guidelines, 49 Fed. Reg. 26,823, 26,828 (1984) [hereinafter cited as Guidelines] (The Department will first determine the relevant product market with respect each of the of each of the merging firms.). For a general discussion of antitrust market definition, see R. POSNER & F. EASTERBROOK, ANTITRUST 347-85 (2d ed. 1981). 2. Tied products are those which sellers require be purchased together. In cluster cases, defendant firms offer sell a number of untied products, but do require that they be purchased together. See R. POSNER & F. EASTERBROOK, supra note 1, at 802 (discussing tying arrangements). 3. This point was explicitly made by the court in JBL Enter. v. Jhirmack Enter., 509 F. Supp. 357, 368-69 (N.D. Cal. 1981), affd, 698 F.2d 1011 (9th Cir. 1983) (full-line cluster of beauty held be relevant market even though individual were not interchangeable for the end user and there was no production flexibility). See also United States v. A.T.&T., 524 F. Supp. 1336, 1375 (D.D.C. 1981) ([uIn United States v. Grinnell [384 U.S. 563 (1966)] the Supreme Court aggregated central fire alarm and burglar alarm systems without suggesting that these services are economic substitutes extent.). Some courts, however, seem have clustered on the basis of supply substitutability. For example, in United States v. Hughes Tool Co., 415 F. Supp. 637 (C.D. Cal. 1976) (clustering specialized surface rotary drilling products), while the court did explicitly define the market on the basis of supply substitutability, it found that any large heavy machinery manufacturer would have plant facilities, personnel and at least basic equipment go into production on of these . . .within a relatively short period of time. Id. at 642. This description fits the classic definition of supply substitutability. See R. POSNER & F. EASTERBROOK, supra note 1, at 352. See also FTC v.

Feminism, Pornography, and Law

Since Roth v. United States,' the Supreme Court has maintained that is not protected by the freedoms of speech and press.2 This means that, consistent with the usual procedural constraints,3 state and federal governments can regulate obscene books, photographs, and movies.4 At the same time, the Court has developed a restrictive definition of obscenity that, in effect, limits obscenity regulation to hardcore pornography.6 First amendment theorists have widely criticized obscenity law. Their arguments tend to focus on the problem of defining obscenity, and some criticize any attempt to define or regulate obscenity.7 The theorists' legal arguments are informed by their perceptions of pornography and its social significance; these perceptions may be broadly categorized as either conservative or liberal.8 The Court's current position represents a compromise between the conservative and liberal positions, a position that satisfies neither side.' Recently, a new voice entered the obscenity law debate. Feminists have begun to articulate their opposition to pornography,'0 to organize t B.S. 1973, Massachusetts Institute of Technology; Ph.D. 1978, J.D. 1984, University of Pennsylvania. The author wrote this Comment while a student at the University of Pennsylvania Law School. 1 354 U.S. 476 (1957). 2 Id. at 481. 3 See F. SCHAUER, THE LAW OF OBSCENITY 206-27 (1976). 4 Most states regulate obscenity. For a categorization of obscenity statutes, see New York v. Ferber, 458 U.S. 747, 755 n.7 (1982). Federal regulation in the area includes provisions regulating the use of the mails, see 18 U.S.C. ? 1461 (1982); 39 U.S.C. ?? 3001, 3008, 3010 (1982), common carriers, see 18 U.S.C. ? 1462 (1982), interstate transportation, see 18 U.S.C. ? 1465 (1982), and importation into the United States, see 18 U.S.C. ? 1462 (1982); 19 U.S.C. ? 1305 (1982). For a discussion of the history of federal obscenity regulation and a description of current federal law in the area, see F. SCHAUER, supra note 3, at 169-91. 5 See infra notes 32-36 and accompanying text. 6 See infra notes 66-71 and accompanying text (discussing views of liberal theorists). 7 See infra notes 40-44 and accompanying text. 8 See infra notes 45-59 and accompanying text. ' See infra notes 60-64 and accompanying text. 10 See, e.g., A. DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN (1981); S. GRIFFIN, PORNOGRAPHY AND SILENCE (1981); TAKE BACK THE NIGHT: WOMEN ON PORNOGRAPHY (L. Lederer ed. 1980).

The Role of Cost in Educational Decisionmaking for the Handicapped Child

Copyright ? 1985 by Law and Contemporary Problems * Associate Clinical Professor of Law, Duke University. I am indebted to Chris Schroeder and Judith Wegner for their insights during numerous conversations I had with them while I was writing this article, and to Richard Boulden, Matt Lavine, and Howard Vingan for their research assistance. 1. Hicks, Should Every Bus Kneel? in DISABLED PEOPLE AS SECOND CLASS CITIZENS 13-14 (1982) (quoting Must Every Bus Kneel to the Disabled?, N.Y. Times, Nov. 18, 1979, at 18E). 2. See Oversight of P.L. 94-142 The Education for All Handicapped Children Act, Part 1: Hearings before the Subcommittee on Select Education of the Committee on Education and Labor House of Representatives, 96th Cong., 1st Sess. 82 (1979) (statement of Walter Tice, American Federation of Teachers); J. KAKALIK, W. FURRY, M. THOMAS & M. CARNEY, THE COST OF SPECIAL EDUCATION 5 (1981) [hereinafter cited as KAKALIK] ($3577 average cost per student for handicapped child in 1977-78; $4898 average cost in the following 3-year period). Residential placements, not included in the Kakalik study, are even more expensive. See Stark, Tragic Choices in Special Education: The Effect of Scarce Resources on the Implementation of Pub. L. No. 94-142, 14 CONN. L. REV. 477, 491, 493 (1982). A residential placement may cost well over $50,000 per year. See Clevenger v. Oak Ridge School Dist., 744 F.2d 514, 517 (6th Cir. 1984) (ordering residential placement costing $88,000 per year); Stanger v. Ambach, 501 F. Supp. 1237, 1241-42 (S.D.N.Y. 1980) (discussing residential placement that would cost at least $52,410 for the 1980-81 school year). 3. KAKALIK, supra note 2, at 339, 343. (This study noted that, depending on the type of handicap and educational placement (excluding residential placements), the cost of educating a handicapped child is between .49 (full-time work placement for learning disabled students) and 6.78 (regular class plus part-time special teacher) times the cost of educating a nonhandicapped child. See also M. MOORE, L. WALKER, & R. HOLLAND, FINETUNING SPECIAL EDUCATION FINANCE 50-51 (1982) [hereinafter cited as MOORE, WALKER & HOLLAND] (depending upon the type of handicap and method of computation, the cost of special education ranges from 1.37 to 5.86 times the cost of a regular education); Marriner, The Cost of Educating Handicapped Pupils in New York City, 3 J. EDUC. FIN. 82, 86-88 (1977) (average cost of special education was $5897 per student, compared to $2294 per student for a regular education; average per student cost of special education ranged from $4022 to $14,072, depending on the program). The factors considered in measuring the cost of special education are discussed in MOORE, WALKER & HOLLAND, supra, at 45-58.

In Opposition to the School Prayer Amendment

OF THE UNITED STATES 1981, at 52-53 (102d ed. 1981). 46 Prepared Testimony of William VanAlstyne on S.J. Res. 199 Before the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 7-9 (Sept. 16, 1982) (on file with The University of Chicago Law Review). For a similar argument, see Cahn, supra note 41, at 993-94. 46 Kauper, Prayer, Public Schools and the Supreme Court, 61 MICH. L. REV. 1031, 1065 (1963); see also Kurland, supra note 30, at 30-31.

Parental Support, Delinquent Friends, and Delinquency: A Test of Interaction Effects

A central focus of control theories of delinquency is the relationship between a youngster's attachment to his parents and his delinquent involvement. Of particular interest is the notion of sensitivity to parents' wishes or opinions. Simply, the greater the sensitivity, the more likely the child is to consider the wishes and opinions of his parents when contemplating a deviant act. Consequently, major developments of these theories have explored the significance of family relationships in generating a bond to society or stake in conformity.' These theories assume that delinquent behavior results when an individual's bond to society is weak or broken. Thus, lack of family support is viewed as conducive to delinquency. This weak or broken bond ostensibly minimizes one's sensitivity to the opinions or expectations (i.e., norms) of others, freeing the individual to deviate.2 Conversely, the presence of control via parental support is seen as inhibiting delinquency. According to many theorists and researchers,3 a significant effect of a weak bond to parents is the enhanced importance of delinquent friends. Hirschi,4 for example, reported that boys with a low stake in conformity were more susceptible to delinquent peer influences, while boys with a high stake in conformity were relatively immune to these influences. In other words, the greater the stake in conformity, the less the impact of delinquent companions. Stanfield5 presented data consistent with this interaction hypothesis. He found that frequent peer activity was more strongly associated with delinquent behavior among those boys whose fathers' discipline was erratic or low than where it was consistent. Stanfield suggested that lack of consistent or supportive discipline (i.e., control) made boys more vulnerable to the influence of delinquent friends.6 Although both Hirschi and Stanfield demonstrated that family relationships condition the impact of delinquent friends, recent efforts to test propositions derived from control theory have neglected this interaction hypothesis.7 For example, Hepburn8 attempted to assess the empirical consistency of a control theory model of delinquency based upon Hirschi's formulation of the causal structure of the relationships between parental support, delinquent associates, delinquent definitions, and delinquent behavior. However, he failed to incorporate Hirschi's qualifying condition that the effect of delinquent peers on delinquency is contingent upon the level of family support.9 Such an * Assistant Professor of Sociology at Western Carolina University. Professor Poole received his Ph.D. in Sociology at Washington State University (1976). ** Assistant Professor of Sociology at Texas Christian University. Professor Regoli received his Ph.D. in Sociology at Washington State University (1975). 1 See T. HIRSCHI, CAUSES OF DELINQUENCY (1969); F. NYE, FAMILY RELATIONSHIPS AND DELINQUENT BEHAVIOR (1958); Toby, The Differential Impact of Family Disorganization, 22 AM. Soc. REv. 505 (1957). 2 Hirschi contends that the essence of internalization of norms lies not in one's conscience but in the bond of the individual to others. T. HIRSCHI, supra note 1, at 1819.

The Beneficiaries of Trucking Regulation

Hoover Institution on War, Revolution, and Peace A Stanford University SERIES of studies which have been published in recent years indicate that a major impact of Interstate Commerce Commission (ICC) regulation of the trucking industry has been to raise freight rates.' James Sloss, for example, found that average revenue per ton-mile was 6.73 per cent lower in Canadian provinces compared to average revenue in regulated Canadian provinces and in the United States.2 His study underestimates the impact on rates for a number of reasons that I have spelled out elsewhere.3 Suffice it to note that his regulated provinces would be relatively unregulated by U.S. standards. During the 1950s we witnessed what might almost be considered a controlled experiment. Some products-fresh and frozen poultry-that had been carried only by regulated carriers were declared by the courts to be exempt commodities under the Interstate Commerce Act. There is no reason to believe that regulated trucking rates on these commodities were significantly higher relative to costs than were those of any other commodity. As a result of these court decisions, prices declined substantially: 12 to 59 per cent in particular markets with an unweighted average of 33 per cent for fresh poultry and 36 per cent for frozen.4 The weighted average decline for frozen fruits and vegetables was 19 per cent.5 * I would like to thank George Stigler, James C. Miller III, John Snow, and especially H. Gregg Lewis for their thoughtful comments and suggestions. Thomas G. Moore, Trucking Regulation: Lessons From Europe (Am. Enterprise Inst.Hoover Policy Studies, 1975); James Sloss, Regulation of Motor Freight Transportation: A Quantitative Evaluation of Policy, 1 Bell J. Econ. & Management Sci. 32 (1970); James R. Snitzler & Robert J. Byrne, Interstate Trucking of Fresh and Frozen Poultry Under Agricultural Exemption (U.S. Dep't of Agriculture, 1958) (Marketing Research Rept. No. 224); id., Interstate Trucking of Frozen Fruits and Vegetables Under Agricultural Exemption (U.S. Dep't of Agriculture, 1959) (Marketing Research Rept. No. 316); Transportation Act of 1972, Hearings on H.R. 11824, H.R. 11826, and H.R. 11207 Before the Subcomm. on Transportation of the House Comm. on Interstate and Foreign Commerce, 92nd Cong., 2nd Sess., 1434 (pts. 1-3, 1972) [hereinafter cited as Transportation Hearings]. 2 James Sloss, supra note 1. 3 Thomas G. Moore, supra note 1. 4 James R. Snitzler & Robert J. Byrnes, Interstate Trucking of Fresh and Frozen Poultry Under Agricultural Exemption, supra note 1. s Id., Interstate Trucking of Frozen Fruits and Vegetables Under Agricultural Exemption, supra note 1.

Learning Spanish the Fénix Way

25. Wise supra note 18 at 31. 26. 402 U. S. at 29, 30 and 31 (1971). 27. Ibid. 28. Ibid. 29. Ibid. 30. Ibid 31. 45 L.W. 3413(1976). 32. 96 S. Ct. 2040 (1976). 33. Winifred Green, Children of the South: School Desegregation and Its Significance, Journal of Law and Education, 4 (January, 1975): 24. 34. Kenneth B. Clark, In the Matter of Busing, New York Times, March 10, 1972. 35. Young and Bress supra note 5 at 519. 36. Louis Rubin, ed., The Future of Education: Perspective on Tomorrow's Schooling (Boston: Allyn and Bacon, 1975), pp. 107-11.