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Law School Record, Vol. 24, No. 1 (Winter 1978) Law School Record Editors

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Law School Record, Vol. 24, No. 1 (Winter 1978) Law School Record Editors University of Chicago Law School Chicago Unbound The nivU ersity of Chicago Law School Record Law School Publications Winter 1-1-1978 Law School Record, vol. 24, no. 1 (Winter 1978) Law School Record Editors Follow this and additional works at: http://chicagounbound.uchicago.edu/lawschoolrecord Recommended Citation Law School Record Editors, "Law School Record, vol. 24, no. 1 (Winter 1978)" (1978). The University of Chicago Law School Record. Book 47. http://chicagounbound.uchicago.edu/lawschoolrecord/47 This Book is brought to you for free and open access by the Law School Publications at Chicago Unbound. It has been accepted for inclusion in The University of Chicago Law School Record by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. The Law School Record The University of Chicago Law School 1111 East 60th Street Chicago, Illinois 60637 Published for graduates, students, and friends of the Law School Volume 24, winter 1978 Editor: Susan S. Raup Copyright 1978 The University of Chicago Law School Additional copies available at $2.50 per copy from William S. Rein & Company, Inc. 1285 Main Street Buffalo, New York 14209 William S. Rein & Company, Inc. handles subscriptions and can supply back issues of volumes 1-23. All inquiries and claims should be directed to Rein. Changes of address should be sent to the University of Chicago Law School. Photo credits: cover, pages 2 and 34 Richard L. Conner, J.D. '75 page 3 David Joel page 33 Melvin B. Goldberg page 44 Nancy Lieberman, J.D. '79 Contents Gerhard .. Becomes . Dean . .. .. Casper . .. 3 The Constitution of Emerging the European Community 5 Gerhard Casper The Political Economy of Innovation in Drugs and the Role of the Food and Drug Administration 13 Edmund W. Kitch The Proposed Federal Criminal Code: A out of in Prison . .. .. Way Anarchy Sentencing .. .. .. 20 Norval Morris The Reborn AILJ Again! Recycling the Reform 23 Walter J. Blum and Willard H. Pedrick Law, the Life of the Law, and Society: A Posthumous Book by Karl Llewellyn 27 Gerhard Casper Ernst Wilfred Puttkammer (1891-1978) 29 Walter J. Blum Hans W. Mattick (1920-1978) 32 Norval Morris Ann W. Barber (1911-1978) 35 Richard I. Badger From the Law School 37 Publications of the Faculty, 1977-1978 45 1 2 Gerhard Casper Becomes Dean Max Pam Professor of Casper, Law, suit him perfectly to lead the school. In ad­ Gerhardhas been Dean of the appointed Law dition to being a noted constitutional authority, School. The is effective appointment January he has done important work which has illumi­ 1, 1979. As Dean he will succeed Norval Morris, nated significant issues of law and public policy. the Professor in the Law Mr. Julius Kreeger School, Casper's appointment as Dean reflects the who has been Dean since 1975. Hanna Holborn breadth and vitality of the Law School. I look President of the Gray, University, appointed forward enormously to with him." Mr. working Casper after the of a She receiving report added: "The University is deeply in­ search committee which was convened early debted to Norval Morris for his superb and this summer at Mr. Morris's request. energetic service as Dean during the past Mrs. Gray commented: "The Law School at several years. The faculty has been given ad­ The University of while ditional Chicago, maintaining strength by the appointment of some the most standards of rigorous professional splendid younger scholars. Norval's Own work has training, in the of on criminal law pioneered integration and prison reform has con­ legal studies with other intellectual disciplines, tributed to knowledge and practice in these in the social Mr. particularly sciences. Casper's areas and has inspired colleagues and students and academic experience intellectual interests to new inquiries." 3 Gerhard Casper joined the faculty of The is editor of The Supreme Court Review. University of Chicago Law School in 1966. Mr. Casper has been teaching constitutional Mr. Casper was born in Hamburg, Germany law, constitutional history, and the law of the in 1937. He studied law at the universities of European community, and has given seminars Freiburg and Hamburg, where in 1961 he in jurisprudence and in comparative law. earned his first law degree. He then studied A member of the American Law Institute American law at Yale Law School and received and the American Political Science Association, a Master of Laws degree in 1962. He returned Mr. Casper is also a member of the Chicago to Germany to write his doctoral dissertation Council of Lawyers, on whose Board of Gov­ and was awarded the Doctor iuris utriusque by ernors he served from 1973-75. He has fre­ the University of Freiburg in 1964. From 196�- quently been invited to give congressional 66 he was a member of the faculty of the testimony on constitutional issues. Political Science Department at the University He is married to Regina Casper, M.D., of California at Berkeley. He was Visiting Pro­ who is Associate Director of the Department fessor of Law at the Catholic University of of Research, Illinois State Psychiatric Institute, Louvain, fall 1970. and Associate Professor in the Department of Mr. Casper's books and articles in the fields Psychiatry, University of Illinois Medical of constitutional law, constitutional history, School. The Caspers and their daughter, Hanna, comparative law and jurisprudence have been live in Hyde Park. extensive and influential. His recent books in­ The symbols of decanal office, a hard hat clude The Workload of the Supreme Court, marked DEAN and a small sledgehammer, with Richard A. Posner (1976), and Lay Judges were passed on by Mr. Morris to Mr. Casper in the Criminal Courts: Empirical Studies in at the traditional Entering Students Dinner Comparative Law, with Hans Zeisel (to be held in the Harold J. Green Lounge at the Law in published 1978). He, with Philip B. Kurland, School on October 5. 4 The Emerging Constitution of the European Community Gerhard Casper* 1, 1958 the Economic January European The thesis of this paper is a simple one and o. came into existence. Community Together hardly novel. The paper maintains that the with the older Coal and Steel European Com­ treaties (the emphasis here is on the so-called and the munity European Atomic Energy Com­ Treaty of Rome establishing the European it constitutes what is munity, often referred to Economic Communty) are increasingly func­ as the or the European Community European tioning in the manner of a federal con­ Common Market. six Originally composed of stitution. By this characterization I mean to member states (Belgium, France, the Federal pOint to (1) vertical, rather than horizontal, Republic of Germany, Italy, Luxemburg, and authority structures, (2) partial integration of the it was in 1973 Netherlands), enlarged by law, and (3) considerable reliance on formal the accession of Denmark, Ireland, and the rather than informal mechanisms for dispute United At Kingdom. present, the membership resolution. The proof offered for the thesis is the Greece and are under applications of Portugal jurisprudence of the Court of Justice on the consideration. The has European Community supremacy of Community law. As any student become an important factor in international of American constitutional history knows, the trade and politics. subject of supremacy is important in terms of Internally, its jurisdiction extends to a whole jurisdiction, practical politics, and political matters to the range of familiar American theory. I argue that the most striking features student under the C of federal powers onstitu­ of the Court's decisions in this area, rendered tion, ,n its interstate and com­ over a particular foreign period of less than fifteen years, have merce clause. The European Community, how­ been the SWiftness, boldness, and forcefulness ever, does not operate under a constitution. with which the Court of Justice has pronounced Instead it is governed by international treaties, the primacy of Community law. That juris­ albeit common law with, making institutions, in­ prudence has mostly eschewed the opportun­ a Court cluding of Justice in Luxemburg. ities, frequently offered by the member states, to view the Treaty of Rome in an "international law" mode, rather than a constitutional one. >OMax Pam Professor of American and Foreign Law. "I do not think the United States would This paper was presented at the Seventy-Second Annual come to an end if we lost our to Meeting of the American Society of International Law, in power declare an Act of void. I do think Washington, D.C., on April 28, 1978. A slightly different Congress version will be published in the Proceedings of the Society. the Union would be imperiled if we could 5 not make that declaration as to the laws of autonomous factor in the development of the the several states.'? Community. Holmes's famous remark that he suggests Holmes referred to the power of the Supreme viewed judicial enforcement, in particular en­ Court to declare state laws void. We know, of forcement the of the su­ by Supreme Court, course, that in theory this power of the United clause in Article VI as the cornerstone premacy States Supreme Court is not as far-reaching as of American 2 constitutionalism. In the early the power of the German and Italian constitu­ of the review state years federation, judicial of tional courts to make such declarations with a served to consolidate the under­ legislation "repeal" effect. Nevertheless, the practical con­ standing, expressly put forward by Article VI, sequences of American court decisions holding of the American constitution as law. Likewise, statutes unconstitutional are often indistinguish­ though with a slightly different twist, the treat­ able from judicial "repeal." ment by the Court of Justice of the Treaty of The Court of Justice of the European Com­ Rome and law as su­ secondary Community munity possesses no such power with respect law has served to consolidate the status to preme national legislation, not even in the case of of the Treaty as the Community constitution.
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