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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.

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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. proceedings under Articles 169 and 170.3 As A caveat is in order. comments do not a My matter of fact, the Treaty does not even know views about the the imply any political stability equivalent of the express supremacy clause and economic survival of. the European Com­ in Article VI of the United States Constitution. munity. The following observations concern While A�ticle 189 does clothe certain Com­ certain legal developments which I believe to munity measures with a binding effect and be and to important possess some independent makes them directly applicable, it fails to state To a modest 4 weight. extent the jurisprudence their supremacy. of the Court of Justice may be viewed as an More importantly perhaps, the Court of Jus-

1. O.W. Holmes, Collected 295/96 a Jr., Legal Papers "Before Member State brings an action against an­ (1920). other Member State for an alleged infringement of an 2. U.S. Constitution, Article VI, clause 2: obligation under this Treaty, it shall bring the matter "This Constitution, and the Laws of the United before the Commission. States which shall be made in Pursuance thereof; and "The Commission shall deliver a reasoned opinion all Treaties made, or which shall be made, under the after each of the States concerned has been given the Authority of the United States, shall be the supreme opportunity to submit its own case and its observations Law of the Land; and the Judges in every State shall on the other party's case both orally and in writing. be "If bound thereby, any Thing in the Constitution or the Commission has not delivered an opinion Laws of any State to the Contrary notwithstanding." within three months of the date on which the matter 3. Article 169, Treaty Establishing the European Economic was brought before it, the absence of such opinion shall Community: not prevent the matter from being brought before the Court of Justice." "If the Commission considers that a Member State 4. Article 189, Treaty Establishing the European Eco­ has failed to fulfil an obligation under this Treaty, it nomic Community: shall deliver a reasoned opinion on the matter after "In order to carry out their task the Council and the giving the State concerned the opportunity to submit Commission in its observations. shall, accordance with the provisions of this Treaty, make regulations, issue directives, take "If the State concerned does not comply with the decisions, make recommendations or deliver opinions. opinion within the period laid down by the Commis­ "A regulation shall have general application. It shall sion, the latter may bring the matter before the Court be binding in its entirety and in all of directly applicable Justice." Member States. Article 170, the Eco­ Treaty Establishing European "A directive shall be binding, as to the result to be nomic Community: achieved, upon each Member State to which it is "A Member State which considers that another Mem­ addressed, but shall leave to the national authorities ber State has failed to fulfil an obligation under this the choice of form and methods. Treaty may bring the matter before the Court of "A decision shall be binding in its entirety upon Justice. those to whom it is addressed.

6 tice does not the possess appellate jurisdiction Justice referred to the Community as "a new conferred by means of Article III of the United legal order of international law," emphasized States Constitution and federal legislation on that the members had limited their sovereignty, the American Supreme Court. Quite to the and that the Treaty conferred rights and im­ one could contrary, argue that the interlocutory posed obligations directly on nationals of the powers granted the Court of Justice in Article member states. In identifying the nature of 177 were so as to eschew designed any notion this "new legal order," the Court made one of plenary appellate power over questions of argument reminiscent of McCulloch v. Mary­ law." Community land." and, one might add, as tenuous in this As one looks back over the short as very period context it was in John Marshall's great poem. -a mere twenty years-the Community has In explicating its view that the Treaty was been in one of the most existence, striking more than an ordinary international agreement features of the Court's decisions the concerning creating mutual obligations between the con­ supremacy of Community law has been the tracting states, the Court said: "This view is swiftness, boldness, and forcefulness with confirmed by the preamble to the Treaty which which the Court of has the refers not Justice pronounced only to governments but to peo­ primacy of Community law. ples.'?" on van Gend & Commenting Loos.: in 1964, Perhaps more to the point was what I would Professors Riesenfeld and Buxbaum stressed the call the "jurisdictional" interpretation of Article caution with which the Court had avoided any 177. The Court saw in Article 177 an acknow­ direct statement on the question how national ledgment by the member states "that Com­ courts should resolve a conflict na­ between munity law has an authority which can be 7 tional law and the Treaty. Riesenfeld and invoked by their nationals" before national Buxbaum pointed out how the Court "must courts and tribunals.II While the Court formally work with materials much less robust than declined to pass on the collision problem, its those that were available to the Supreme Court actual ruling told the Dutch tribunal that it of the United States for its great blueprint "must protect" the individual rights created by cases.:" the Treaty. A reference under Art. 177, van Gend & Laos Whether one views van Gend & Laos as a involved a clash between a Benelux customs diplomatic masterpiece in the art of directing and a Dutch statute on the one agreement hand and avoiding or as a "great blueprint" case is, and the on the other. The Dutch Treaty law in retrospect, not very interesting. The fact of had been enacted after the Treaty of Rome the matter is that, within a little more than a went into effect. In its decision, the Court of year, the Court of Justice was prepared to turn

"Recommendations and no opinions shall have bind­ sary to enable it to give judgment, request the Court force." ing of Justice to give a ruling thereon. 5. Article 177, the Eco­ Treaty Establishing European "Where any such question is raised in a case pending nomic Community: before a court or tribunal of a Member State, against "The Court of shall to Justice have jurisdiction give whose decisions there is no judicial remedy under preliminary rulings concerning: national law, that court or tribunal shall bring the ( a) the interpretation of this Treaty; matter before the Court of Justice." the and of acts of the (b) validity interpretation 6. Case 26/62, N.V. Allgemene Transport- en Expeditie institutions of the Community; Onderneming van Gend & Loos v. Nederlandse admin­ the ( c) interpretation of the statutes of bodies es­ istratie der belastingen [1963] E.C.R. 1. tablished by an act of the Council, where those 7. Riesenfeld and Buxbaum, 58 A.].I.L. 152',157 (1964). statutes so provide. 8. Id. at 158. "Where such a question is raised before any court or 9. 4 Wheat. 316 (1819). tribunal of a Member State, that court or tribunal may, 10. [1963] E.C.R. 1, 12. Ct. 4 Wheat. 316,403/4. if it considers that a decision on the question is neces- 11. Ibid.

7 Article 189 into a supremacy clause and to "The propriety of this clause would seem direct courts no national in uncertain terms to to result from the very nature of the con­ treat Community law as supreme. stitution. If it was to establish a national With respect to the Treaty, Costa v. ENEU2 government, that government ought, to the involved a spurious claim. Again a submission extent of its power and rights, to be su­ under Article 177, the case challenged the na­ preme. It would be a perfect solecism to tionalization, in 1962, of the production and affirm that a national government should distribution of electric energy in Italy. What exist with certain powers; and yet, that was important about the case was its history. in the exercise of those powers it should The substantive question had, a few months not be supreme. What other inference earlier, led to a decision of the Italian Corte could have been drawn than of their su­ Constituzionale. That court had refused even premacy, if the constitution had been to consider whether the Italian statute violated totally silent?"16 the Treaty of Rome, because the 1962 statute To be sure, I am not arguing that the Court was subsequent to the statute approving the of Justice had to adopt the constitutional law 13 Treaty. model of the Treaty rather than a more ''hori­ The Court of Justice reacted by ruling that zontal" one. Indeed, even in Costa the Court a subsequent unilateral measure cannot take conceptualized its solution in not altogether precedence over Community law, thus holding hierarchical terms. I am referring to the identi­ the submission by the Milan court admissible. fication of Community law as "its own legal Justifying this supremacy, the Court again con­ system," though integrated. The language the trasted the Community system with ordinary Court used was close to, but not identical with, international treaties and found it to have the opinion of the Advocate General, Lagrange, "created its own legal system which ... became who had attempted to show "that the system an :. of integral part the legal systems of the of the Common Market is based upon the Member States and which their courts are creation of a legal system separate from that bound to apply."14 The Court also saw the of the Member States, but nevertheless inti­ "17 law even precedence of Community confirmed by mately and organically tied to it .... Article 189.15 On the one hand "separateness" is a trouble­ Thus, within six years of the entry into force some concept, on the other hand nothing fol­ of the the Treaty, Court had (1) demonstrated lows from it as concerns supremacy. Probably, the ease with which Article 177 could be turned it represents no more than the often encoun­ into a vehicle for appellate review, (2) asserted tered discomfort of lawyers vis-a-vis a new the supremacy of Community law as in the phenomenon that does not fit their previously nature of things, (3) found Article 189 to be established categories. a supremacy clause-though unnecessary, (4) It could be argued that the conceptualization expressly stated that even subsequent national has not been quite as harmless as I have made legislation had to yield in case of conflict, and it out to be, because doubters and cunctators ( 5) left no doubt about the obligations of na­ may use it for their own legal and political tional judges. purposes. Thus, the German Federal Constitu­ The American constitutional historian is re­ tional Court began its famous opinion in Inter­ minded of Justice Story's commentary on the nationale Handelsgesellschait'" by invoking the supremacy clause in Article VI: "separate legal systems" conceptualization. The

12. Case 6164, Costa v. ENEL, [1964] E.C.R. 585. 16. J. Story, 3 Commentaries on the Constitution of the 13. Costa v. ENEL, 1964 C.M.L.R. 425, 436. United States 693 (1833). 14. [1964] E.C.R. 585, 593. 17. [1964] E.C.R. 585, 605. 15. u. at 594. 18. BVerfGE 37, 271 (1974).

8 case concerned the constitutionality, under the recourse to national constitutions would have German Basic of a Law, deposit required by an adverse effect on the uniformity and efficacy Community law to secure the actual perfor­ of Community law and could not be reconciled mance of for which a exports license had pre­ with the very nature of law stemming from the been obtained. The German viously constitu­ Treaty, which it, too, characterized once again tional court held that the requirement did not as "an independent source of law."22 violate the German constitution. Nevertheless, In short, the Court of Justice came to the it made use of the opportunity offered to state conclusion that maintenance of a uniform Com­ the the position that, given incomplete state of munity legal system mandates a hierarchical it had the European integration, power to authority structure which supersedes even na­ review Community regulations, even those up­ tional constitutions. In view of these develop­ held the Court of for by Justice, violation of ments it seems to me preferable to drop the basic rights guaranteed by the German con­ notion of "separate" systems. To the extent of stitution. The German court claimed that power supremacy, Community law and national legal for as as the long European parliament had not systems appear to be fully integrated. Put dif­ enacted an adequate bill of rights. ferently, the Court of Justice has adopted the The decision was poorly reasoned, though by last part of the supremacy clause of Article VI no means as obviously wrong as most com­ of the United States Constitution, which after mentators seem to believe. However this may defining the supreme law of the land continues be, it has been taken much too seri­ that probably "the Judges in every State shall be bound and the indeed to ously, dispute may amount thereby, any Thing in the Constitution or Laws no more to use than, Judge Donner's character­ of any State to the Contrary notwithstanding." a allemande."19 For our ization, "querelle pur­ [My emphasis.] it should be noted that the Fed­ poses, simply Almost two hundred years ago, the Federalist eral Constitutional Court No. 44 had began by reaffirming made most of the relevant argu­ its that jurisprudence Community law was part ments. Defending that part of the clause which neither of the national nor legal system public proclaims the supremacy of federal law over international law, but was an "autonomous" state constitutions, Madison said: The legal system. judges stressed that this view "[A]s the constitutions of some of the states was "in accord with the jurisprudence of the do not even expressly and fully recognize Court of The irrelevance of the the Justice."20 existing powers of the confederacy, an "autonomous" for the legal system argument express saving of the supremacy of the supremacy point is perhaps best illustrated by former would, in such states, have brought the fact that the dissent of used Judge Rupp into question every power contained in the the same for the concept reaching opposite proposed constitution ... [A]s the con­ 21 result. stitutions of the states differ much from The Court of for its had Justice, part, pre­ each other, it might happen, that a treaty viously rejected the claim that the German or national law, of great and equal im­ constitution was relevant to the determination portance to the states, would interfere with whether the incriminated Community regula­ some, and not with other constitutions, and tions were The Court had stressed that legal. would consequently be valid in some of

19. Quoted in Ipsen, BVerfG versus EuGH re 22. Case Grundrechte, U170, Internationale Handelsgesellschaft v. Ein­ 1975 Europarecht 1, 3. Charmingly enough, the French fuhr- und Vorratsstelle fiir Getreide und Futtermittel, use the phrase "a German quarrel" to characterize the [1970] E.C.R. 1125, 1134. The Court had intimated of a picking fight. these views as early as 1965. Cj, Case 9/65, Acciaierie 20. BVerfGE 37, at 277. 271, San Michele SpA v. High Authority of the ECSC, 21. Id. at 291. [1967] E.C.R. 1, 27 (order of June 22, 1965).

9 the states, at the same time, that it would The problem had been posed by the Italian have no effect in others. In fine, the world Corte Constituzionale. While the highest courts would have seen, for the first time, a of countries such as Belgium" and France" had system of government founded on an in­ given precedence to Community law over sub­ version of the fundamental principles of all sequent national legislation in the context of government; it would have seen the au­ deciding specific cases or controversies, Italy thority of the whole society everywhere had embarked on an obstacle course." Though subordinate to the authority of the parts; the Italian Constitutional Court has abandoned it would have seen a monster, in which Costar" and accepted the supremacy of Com­ the head was under the direction of the munity law,29 it also has attempted to extend members."23 its monopoly to declare Italian legislation un­ The Court of Justice has made it clear that" the constitutional to alleged violations of Com­ Treaty cannot suffer such inversion. To that munity law. Italian courts finding a conflict extent the Treaty is indistinguishable from the between Italian law and Community law were constitution of a federal state such as the thus forced to delay adjudication until an inter­ United States. locutory decision of the Constitutional Court How radical all of these developments have could be had."? When an Italian court made use been, can perhaps best be judged by the fact of Article 177 to have the Court of Justice that the constitutionalization of the Treaty of review this ruling of the Corte Constituzionale, Rome has led to the introduction of judicial the Court of Justice responded by requiring review, or what one might more appropriately the Italian judges to disregard national law, call Community review, into' those countries without waiting for an adjudication by the Con­ which do not recognize the power of their stitutional Court."! courts to pass on the constitutionality of legisla­ "Querelles allemandes et italiennes'?" aside, tion." Indeed the Court of Justice has recently it seems to me clear that the Court of Justice ruled that national courts are not even free to has treated the question of supremacy as one follow their ordinary procedures for determin­ to be decided exclusively in terms of the Treaty ing the inapplicability of national law. of Rome. If speaking of the Community legal

23. The Federalist (Cook, ed.) p. 306. mission was announced, Italy informed the Court of its 24. In the case of the Netherlands, Community review was repeal of the law, effective as of January 1, 1962, the granted by means of an express constitutional provision, date the Court had previously determined as the start­ Article 66. ing point of the violation. Case 7/68, Commission of 25. Etat belge v. S.A. "Fromagerie Franco-Suisse Le Ski", the European Communities v. Italian Republic, [1968] 1971 Journal des Tribunaux 460. E.C.R. 423; Case 18/71, Eunomia di Porro e.C. v. 26. Administration des Douanes v. Soc. "Cafes Jacques Ministry of Ed�cation of the Italian Republic, [1971] Vabre" et S.A.R.L. J. Weigel et Cie, 1975 Rec. Dalloz, E.C.R. 811; Case 48/71, Commission of the European 1,497. Communities v. Italian Republic, [1972] E.C.R. 527. 27. For an earlier example, see the following sequence. In In this last case, at 534, the Advocate-General, Roemer, 1968, the Court of Justice had found that a 1939 Italian offers a detailed discussion of the sequence. law levying an export tax on the export of art treasures 28. See text at note 13 supra. was in violation of Article 16 of the Treaty of Rome. 29. See Frontini v. Ministero delle Finanze, [1974] When Italy did not effect a repeal of the law, a Turin C.M.L.R. II, 372. court asked for a preliminary ruling under Article 177, 30. Soc. Industrie chimichi Italia centrale v. Ministero and the Court of Justice held that national courts must commercio can I'estero, 1975 Foro Italiano I, 2661. protect the rights conferred by Article 16. The Turin German translation 1976 Europarecht 246. court then decided in favor of the plaintiff and against 31. Case 106/77, Simmenthal v. Italian Minister for Fi­ application of the 1939 law. The Italian government nance, Common Market Reports-Euromarket News, apparently appealed that decision, whereupon the Com­ Issue of March 21, 1978. mission brought its second Article 169 proceeding, this 32. Ipsen, supra note 19. There is now the potential for a time claiming a violation of Article 171. Before the "querelle francaise" as well, centering on the notion of decision of the Court of Justice in favor of the Com- French sovereignty. CI. the decision of the Conseil

10 system as independent and autonomous made states. Some of the concessions which have that task easier, so be it. John Marshall used a been made have had the ironic effect, for better similar approach. What seems not merely mis­ or for worse, of strengthening the judicial re­ leading, but false, is to assert "separateness," as view power of the Court of Justice. I am refer­ legal commentators continue to do. The propo­ ring to the protection of basic rights by the sition of the German Constitutional Court that Court of Justice within the context of the Community law is "not part" of the national Court's jurisdiction." The Court, as it were, has legal system is outright nonsense." The fact of responded to German and Italian critics by the matter is that, where the Community is saying: your position is not only doctrinally competent to act, its law is also' supreme. wrong, but also unnecessary. This, in connec­ Period. At least this is the "constitutional" view tion with the Court's expansive view of the taken by the jurisprudence of the Court of direct effect of Community norms.F' shows the Justice. extent to which penetration, including inter­

. It might be noted, in passing, that the Court penetration, has taken place. The direct effect has the recently added temporary restraining of Community norms may now be invoked even order to its (admittedly still limited) arsenal in litigation between private parties. For in­ of remedies against state law alleged to be in stance, what the United States has been trying violation of Community law. The United King­ to do by means of federal civil rights legisla­ dom had ignored a decision of the Commission tion, the Court of Justice has attempted to rendered in accordance with Article 9334 and accomplish by giving direct effect to Article had continued state aid measures for pig pro­ 119, which provides that member states "shall ducers. When the Commission referred the case ensure" application of the principle of equal to the Court of Justice, the Court granted an pay for men and women." interlocutory decision ordering the United The American constitutional historian cannot Kingdom to "forthwith cease to apply the aid help but view some aspects of this "constitu­ measure which it has been operating since tionalization" of the Treaty of Rome with con­ January 31, 1977."35 cern, if not alarm. The spectre of substantive The overall development has been marked by due process seems to loom over the Com­ surprisingly few concessions to the member munity.P" The former President of the Court of

Constitutionnel of December 30, 1976; 1977 C.M.L. 35. Cases 31177 Rand 53/77 R, Commission of the Rev. 648. Cf. Kovar and Simon, Some Reflections on European Communities v. United Kingdom of Great the Decision of the French Constitutional Council of Britain and Northern Ireland and United Kingdom of December 30, 1976, 1977 Common Market Law Review Great Britain and Northern Ireland v. Commission of 525. the European Communities, [1977] E.C.R. 921. 33. See at note 20 supra. 36. An excellent overview of and commentary on the prob­ 34. 'Article 93, Treaty Establishing the European Economic lem can be found in E. Stein, P. Hay and M. Wael­ Community: broeck, European Community Law and Institutions in "1. The Commission shall, in cooperation with Mem­ Perspective 274 ff (1976). ber States, keep under constant review all systems of 37. Contrary to the express wording of Article 189, the aid existing in those States. It shall propose to the latter Court has gone as far as giving direct effect to direc­ any appropriate measures required by the progressive tives. See, e.g., Case 41/74, Yvonne van Duyn v. Home development or by the functioning of the common Office, [1974] E.C.R. 1337. market. 38. Case 43/75, Gabrielle Defrenne v. Societe Anonyme "2. If, after giving notice to the parties concerned to Belge de Navigation Aerienne Sabena, [1976] E.C.R. submit their comments, the Commission finds that aid 455. granted by a State or through State resources is not 39. See, in particular, Cases 119 and 120176, Olmiihle compatible with the common market having regard to Hamburg A.G. v. Hauptzollamt Hamburg and Firma Article 92, or that such aid is being misused, it shall Kurt A. Becher, Bremen v. Hauptzollamt Bremen-Nord, decide that the State concerned shall abolish or alter 1977 (mimeographed advance sheets). The Court in­ such aid within a period of time to be determined by validated a Council regulation which attempted to the Commission. .. ." force compounders of feeding stuffs to purchase surplus

11 Justice recently complained that there is much years, the constitutionalization of European talk about a Europe of agriculture, even a Community law has led to the point where, as Europe of technocrats, ''but nobody talks about in the United States, the supremacy of law the Europe of judges".4o It is about time that seems to mean, at least to some extent, the su­ this deficiency be remedied. In less than twenty premacy of judges.

skimmed milk powder and mix it with feeding stuffs for Schmitthoff, The Doctrines of Proportionality and Non-' animals. The Regulation was voided by reliance on the Discrimination, 1977 European Law Review 329. principles of proportionality and non-discrimination. ct. 40. R. Lecourt, L'Europe des luges 7 (1976).

12 The Political Economy of Innovation in Drugs and the Role of the Food and Drug Administration

Edmund W. Kitch*

The purpose of this essay is to examine the innovations, the resulting underinvestment will political economy of drug innovation and be a social loss. apply it to an evaluation of the Food and Drug At this point the analysis has followed two Administration. Particular emphasis is placed on lines. an of overlooked problem-that the efficient One line suggests the use of tax revenues to management of innovational resources. This subsidize the process of investment in innova­ an in a more essay applies analysis developed tion.. This subsidy will increase the amount of general context in my recently published paper investment in innovation in the direction of the "The Nature and Function of the Patent Sys­ socially optimum amount. Since the ability of tem'" to the of an problems drug technology. innovator to capture the returns from an in­ The traditional political economy of innova­ novation is less, the more basic and fundamental tion has started with the fact that an innovation it is, the analysis suggests that the proportion of can be copied. Copying will keep the innovator tax subsidy should be higher the more basic from capturing the full social value of his inno­ the research being undertaken. Doubtless this vation. As a result, investment in search for in­ analysis has something to do with the generally novation will be less than the anticipated value high level of support for government subsidy of the innovation. that are on Assuming firms of research, particularly (at least among in­ the average reliable predictors of the value of tellectuals) of basic research. For government subsidy to improve the situation, however, it must be managed with sufficient skill so that the returns are Government "Professor of Law. positive. subsidy will raise the cost of to This is an abridged version of a paper delivered to a specialized inputs the conference on The International Supply of Medicines, research process (because total end demand for the American on sponsored by Enterprise Institute, Friday, these inputs will rise) and thus reduce the September 15, 1978, in Washington, D.C., under the title: amount of non-subsidized research that would «The Political Economy of Innovation in Drugs and the otherwise occur. Proposed Drug Regulation Reform Act of 1978". If the return from the govern­ 1. 20 J. Law & Econ. 265 (1977). ment subsidy is not sufficiently positive to

13 offset this loss, it will not improve the situation. Ideas from the theoretical literature have If the government is a poor manager of its found their way into the political debate about subsidy because of an inability to separate drugs. Provisions designed to introduce com­ promising from unpromising projects, to allo­ pulsory licensing were a dominant feature of cate funds in proportion to the promise of the early Kefauver proposals, and his hearings projects, or to obtain the appropriate match of focused on the high profit margin of some project and personnel, the tax subsidy will not patented drugs. The thalidomide episode car­ result in a social gain. ried the drug legislation off in another direction The second line that has been followed in toward a focus on safety. The government has analysis of the political economy of innovation the power to confer a compulsory drug license is the use of a to over­ upon itself under the statutes and has possible rights system � existing come the problem of underinvestment. The from time to time made use of this power. And patent system, which evolved long before the there has been much support for government systematic analysis of these problems was subsidy for medical research, on condition that undertaken, has been considered to be such a the fruits of the research are not subject to system. An inventor is entitled to a patent on exclusive appropriation. his invention, and the invention gives him the Analysis of institutions shaping innovation in right, for a limited time, to keep others from the drug industry in the United States is greatly his invention. The solution will the role of the Food and using patent complicated by Drug \ not be completely effective because some gains Administration. Whether or not to market a from an invention will fall outside the reach of new drug product, and indeed, whether or not patent claims. For instance a 'patent on a par­ to begin human testing on a new drug product, ticular compound which reveals therapeutic is a decision made not by the firm making the properties of the compound may suggest to investment in the innovation but by the Food others the possibility that related compounds and Drug Administration. There is some reason have those properties, but those related com­ to think that at least since the early 1960's the pounds will not fall within the patent claim. FDA has been more cautious than the firms, The tendency of the patent, however, will be free of regulation, would have been-although to increase the return to innovation and over­ the striking rise in judicial product liability come the underinvestment problem. standards would have had effects in the same A patent introduces other problems. During direction as the FDA regulation. What is clearer the life of the patent its owner will charge the is that the FDA, driven by the logic of its own monopoly price for the product subject to the regulatory needs, has imposed upon the process patent. If the critical assumption is made-and of research and marketing a set of general pro­ it has usually been made in the literature-that cedures and standards applicable to all new other firms could acquire and use this informa­ drugs, which are probably not optimum in the tion without cost, then the existence of the case of many particular drugs. The flexibility patent generates a social loss. Persons who that a firm would otherwise have to adapt its would purchase and use the product if its own procedures has been lost. Most importantly, price were lower, and who could be provided the ability of the firm to control the timing of the product at no additional cost to anyone, are its research and marketing has been handed denied the product. In the case of drugs, it has over to the FDA, where the operation of been common for observers to comment on the regulatory resource constraints and uniform high price margins over manufacturing costs procedures causes delays unrelated to drug enjoyed by some patented drugs and to bemoan specific cost benefit relationships. the loss that the high prices cause. Yoram Barzel's essay "The Optimal Timing of Innovation'? persuaded me that the problems of innovation are more complicated than simply 2. 50 Rev. Econ. & Stat. 348 (1968). equating the marginal investment in innovation

14 with the marginal social return. It is important technological information is not something that to consider not only the relationship between can be physically appropriated, the analogy is inputs and outputs, but also the process by not immediately obvious. The fact that I take which resources are to bear on "some brought possi­ information" does not mean that you bilities for innovation. This focus suggests con­ can't have it too. The fact that I have read clusions at odds with the traditional strikingly Barzel's article does not mean that you can't and forward analysis puts another set of prob­ read it too, and even if we both read it-and lems which should be confronted by those who indeed if we both read it with inefficient haste would reform the controlling institutions. -the article will still be there. Or in the drug In his essay, Barzel pointed out that the area, the fact that one firm is exploring the exploitation of technological information has therapeutic properties of compound X does not much in common with fisheries, public roads, mean that another company cannot explore and oil and water are all resources pools-they those properties, and it certainly does not mean not subject to the exclusive control of an owner. that if both explore them, the properties, what­ Under a rule of first there ever appropriation, will they are, will be used up. be inefficiently rapid depletion of the resource. Barzel's point, and the point of the analogy, It has a long been conventional point of is more subtle. There are two resources in­ welfare economics that a rule which bases volved in fishing, driving, and- -J>umpingc -oil. ownership upon first use creates an incentive One is the fish, et cetera. The other is the re­ for use of the resource at a rate faster than sources used to acquire the fish, et cetera. An that which the optimizes social value of the appropriation system causes those resources to resource. This is because each competitor in be used at an inefficiently rapid rate. Thus in the race for ownership will have an incentive the case of a fishery, the problem is not only to accelerate the time of his use in order to that the fish are depleted at an inefficient rate. be and this first, process will continue until the The fishing boats are also used inefficiently. costs of first are to being equal the value of Since ownership is based upon speed, there is being first. Thus if a fisherman owns a fish only an overuse of resources which produce speed. if he catches it, he has an incentive to catch it The number of boats will be inefficiently high in before his neighbor. Even though this will re­ relation to the number of fish. For instance, if sult in common 30 boats fishing (or hunting-another would be the socially efficient way to example) at a rate that depletes the stock, no exploit a fishing ground, a rule of appropriation one in the process has an incentive to stop. may produce a fleet of 60. if the to drive on In area Similarly, right the public the of innovation, the key loss of an road is conferred in order of arrival, everyone appropriation rule is the inefficient deployment will have an incentive to hurry out onto the of the resources used to locate and develop an even this causes a road, though traffic jam, until innovation. For instance in the drug area, if the time that traffic slows to the point that the several firms were competing to be the first to value of on being the road is equal to the gain prove that a chemical entity has a therapeutic from using it. This is so even though the traffic effect, under a rule that the first to demonstrate then moves a at rate which reduces the capacity the effect was entitled to market the drug, the of the road to carry traffic. And in the case of following things would happen. Each firm a nile that oil, gives ownership to the first owner would emphasize speed in its work, even to the oil out pump gives each owner of land though the most efficient way might be to over the pool an incentive to pump as fast as he proceed more slowly. Each firm would have to can, even if the effect is to reduce the total limit its commitment by the estimate of the amount of can oil that be extracted and to sup­ value of the product less its estimate of the ply the oil to the market in a time pattern that chance that some other firm will be first. And reduces its total social value. each firm will have to duplicate work of others Because, unlike fish, bears, roads and oil, since there are no exclusive rights in the infor-

15 mation until the effect has been demonstrated. of a patent to control the allocation of resources Firms would tend to crowd their resources on to its development without the misincentives possibilities they considered close and to dupli­ caused by competitive appropriation-has al­ cate each other's work. Because there would be ready been developed at length here. Two inefficient allocation of the resources both over others are of particular importance. time and the set of innovation possibilities, the One is the transaction effect which has long from resources output the used for drug re­ been a commonplace of the applied legal search would be less than it otherwise could be. literature but has not been noted in the the­ This can analysis be used to argue against a oretical literature. To quote from "The Nature patent system because a patent system is a first and Function of the Patent System": appropriation system. Its basic rule is that the A patent system lowers the cost for the on the patent invention goes to the first in­ owner of technological information of con­ ventor. such an However, argument turns on tracting with other firms possessing com­ confusion about the of the term in­ meaning plementary information and resources. A vention. In common the term usage invention firm that has a design for a new product or has a different from its meaning quite meaning process needs to be able to obtain financ­ in law. When we of an patent speak inventor's ing, knowledge about or use of complemen­ invention in everyday speech, we are thinking tary technology, specialized supplies, and of the commercial product that the inventor access to markets. Unless the firm already made Alexander Graham Bell's tele­ possible: possesses the needed inputs, it must enter phone, Edison's light bulb, Land's polarizer, into contracts. The practical difficulties of and so on. But something cari be patented long entering into contracts concerning trade before it has commercial at any feasibility all. secrets are spelled out in the applied legal For instance, patents issue on chemical entities literature. Disclosure of the secret imperils based not a upon demonstration that they are its value, yet the outsider cannot negotiate wonder drugs, but upon a demonstration that until he knows what the secret is. Dis­ have some effects. they possible therapeutic closure under an obligation of confidence After the is the patent applied for, patent strengthens the discloser's legal position owner can search for the information about the but may prove costly to the receiver, who therapeutic Significance of the entity. Since he must the before he knows accept obligation - has the exclusive to market the he right drug, the secret. The patent creates a defined is the one with an only incentive to find the set of legal rights known to both parties effect. The will race patent eliminate the to be at the outset of negotiations. And although first. Thus can and do issue on the patents basis the patent will seldom disclose the real of "first and the issuance of the results," patent value of the patent, the owner can disclose (and for the most the can part application) such informration protected by the scope of the race to be first. stop the legal monopoly. Indeed, most know­ Because trade based secrecy-whether upon how or trade-secret licensing takes place of trade secret doctrines or legal recognition within the framework of patent rights, the the natural of the of upon ability possessor agreement involving both a license of the information to control its dissemination-is the patent and an undertaking to disclose how principal alternative institutional arrangement to apply the technology efficiently. This to the I was patent system, led in "The Nature reduced transaction cost increases the ef­ and Function of the Patent to System" compare ficiency with which inventions can be de­ the systems in some detail. I identified six ways veloped." in which a is to a trade patent system superior A second advantage of a patent system is that One-the of the owner secrecy system. ability it allows firms to space themselves across the set of innovation possibilities in a more efficient 3. 20 J. Law & Econ. 277-8. manner. A striking problem with trade secrecy

16 is that the of the other then the second during period secrecy . compound, company would firms have an to incentive invest in the search know to explore with the owner of the patent for the very information that is already known. the status of work on the compound before it This search is duplicate economically wasteful began work itself. This would save the re­ if the patent system provides a way that the sources involved in a repeat of the same tests. information known can already be transmitted Conversely, if the first company obtains to other firms. It does. To quote: positive results and does not have a patent, it A patent system enables firms to signal will not want to publicize the existence of its each other, thus reducing the amount of work. But if it has a patent, it will want to duplicative investment in innovation. Once publicize the fact of positive results dissemi­ a patent has been issued, other firms can nated in order to increase the value of its patent learn of the innovative work of the-patent rights. This information will then become avail­ holder and so as redirect their work not to able to others and they can avoid duplicating duplicate work already done. Indeed, the the work. its patent gives owner an affirmative in­ What, then, do these points have to suggest centive to seek out firms and inform them for the problems of evaluating the role of the of the new technology, even before issu­ Food and Drug Administration in drug tech­ ance, if the most efficient and hence nology development? patent-value-optimizing way to exploit the They highlight the fact that the FDA has invention is to license it. Under a of become a regime regulator of the research process. trade secrecy, the competitive firm might How it carries out that task is an important part never learn of a competitor's processes and of evaluating the regulation. The statute does would not learn of the technology incor­ not formally do this. It is modelled on the as­ porated in a new product until it was sumption that firms control their research and marketed. During this period, the invest­ the FDA approves or disapproves. But given ments made in a search for technology al­ the multistage regulatory process that has ready invented by others is wasted. This evolved, and given the existence of regulatory private incentive to disseminate informa­ queues, the FDA is in fact influencing the time tion about the invention should be dis­ How of projects and this is an important matter. tinguished from the reward for disclosure The statute and regulations do not address this discussed. That theory traditionally theory problem, although doubtless in a world of assumes that the disclosure effect of the sometimes practical men there are ways that a patent system comes from the disclosure firm can inform the FDA of its sense of the on the public record.' priorities and the FDA can readjust timing and To illustrate in the context of drug tech­ resources. But these are awkward, costly, and nology, suppose that a firm is considering the sub rosa processes. possibility that a compound will act as an anti­ The regulatory problem is particularly diffi­ histamine. It runs a series of tests on animals cult because in the process of research and de­ and finds that the causes a compound serious velopment resource allocation should be con­ undesirable side effect. It drops the project. stantly reiterative-each new piece of informa­ When another company considers the pos­ tion alters the desired portfolio. These adjust­ of the same sibility pursuing project, it will ments are hard enough for firms to manage, not know of the negative results obtained by but when the readjustments must also be taken the first and will be led to company repeat the through the regulatory process, the difficulty same tests to obtain the same information. becomes staggering. Can you imagine a firm However, if there was a patent issued on the that has just told the FDA that. the processing of drug X should be expedited because it is enormously promising for the treatment of an 4. 20 J. Law & Econ, 278. important disease, later trying to persuade the

17 FDA that in light of information which became act by encouraging the use of the drug for a available a month later, some other drug is condition not permitted. It has little incentive what is now an ex­ really urgent? Research is to undertake the research necessary to expand ploration of the unknown, yet the regulatory the labelling since an expansion in labelling process requires firms to appear consistent in will not expand the market-the drug is al­ the positions they take. ready being used for that condition. Or even if These problems are greatly aggravated by the existing illicit use is limited, the potential the Administration's reform bill." The bill pro­ market may still be too small to justify the poses to substantially increase the degree of regulatory expense. The solution of the bill is control that can the FDA exercise over the re­ to empower the FDA to order firms to do the search process. It is a logical response to much research. Exactly how one orders a firm to do of the of criticism the existing regulatory research in a meaningful way is an interesting scheme. But since that criticism has not con­ problem-doubtless the drafters have in mind sidered the problem of regulating the research a combination of threat and grant. But when process, it could not take these problems into the FDA exercises this power, it will be ex­ account. One of the important criticisms of the plicitly ordering the research priorities of the regulatory scheme that has been made is that it firm. How is it to acquire the information confronts the FDA with an all or nothing necessary to do this? choice. Either a drug is approved for general The cumulative effect of these provisions marketing subject only to the constraints of the would be to greatly increase the scope of FDA label limitations, or it is not approved for involvement in the allocation of resources to marketing. And once it is approved for market­ research, and thus to make even more important ing, the formal regulatory review of safety and concerns about the efficient management of efficacy ends-at the very time when the com­ research resources in evaluating the regulation. mercial sales, much higher in volume than From this perspective, the advantage of the experimental use and production could ever present system is that it at least limits the form be-are generating much more information of and number of potential FDA interventions and potential regulatory value. Since the FDA has probably makes the FDA responses, although an all or nothing choice, it tends to be very inflexible, more mechanical and predictable. cautious before it says yes. The suggested solu­ There are various ways that might be ex­ tion-and a solution adopted in the administra­ plored to ameliorate the problem of the firm­ tion bill-is to give the FDA a much greater FDA interface in research. Firms could be per­ range of choices, making possible stages of con­ mitted to exchange queue positions, to purchase trolled release with a wide range of cautionary regulatory speed with money, or with chits. monitoring and information feedback pro­ Such a system would have to be flexible enough cedures. to permit firms to change their designations To deal with one of the anomalies generated over time as they obtained new information. by the present regulation, the bill also contains Some explicit recognition of the difficulty of the a provision empowering the FDA to order a problem would itself make it easier for the firm to do research. The anomaly is the fact agency to face it and attempt to fashion pro­ that a drug now released for use under labelling cedures to deal with it. The prospects for any for one condition, may come to be used for solution, however, are very dim because the another condition. At this point the firm that whole problem of procedures for the allocation sells the drug has strong incentives to ignore of regulatory resources among items on the the second use. If it recognizes the use, it will regulatory agenda is one that has defied satis­ be open to the charge that it is violating the factory resolution. The complex, multifaceted nature of the problem has caused agencies and critics all too often to simply ignore it. I would 5. S. 2755, 95th Congress. not be surprised if full study of the problem

18 would lead to the conclusion that the agency to give the FDA the powers the management should be held to a first come, first served prin­ job requires. But no attention is paid to the with the to firms to ciple right given exchange question as to how the FDA acquires the per­ in the with side places queue payments per­ sonnel skills and information base necessary mitted. to exercise these powers well. It is quite pos­ The basic is: who is to problem manage the sible that the FDA as flexible manager will be process of research. The present statute adopts considerably more wasteful than the combina­ a minded simple model-the firms research and tion of firm as manager and FDA as arbitrary the FDA checks. The agency has limited and check. If one thinks that the prospects for im­ inflexible powers. The critics have then pointed provements in drug technology are Significant, out that the FDA manages poorly, because it and the resources for making those improve­ doesn't have really the range of flexible powers ments scarce, their wasteful management is an the management job requires. The response is important problem.

19 The Proposed Federal Criminal Code: a Way Out of Anarchy in Prison Sentencing

Norval Morris"

Levi, on his recent retirement from Senate. Similar legislation pending in the House Edwardthe U.S. attorney generalship, expressed lapsed in the 95th Congress and will be recon­ "wonder at the anomaly of a modern country sidered in the 96th Congress. which seems to be unable to a agree upon S 1437, like many other legislative proposals, criminal He federal code of law." doubted, too, is not free from compromise. Its joint sponsor­ that "faith in the administration of criminal ship by Sen. Edward M. Kennedy (D-Mass.) justice can be restored if our present sentencing and the late Sen. John L. McClellan (D-Ark.) system continues." speaks clearly to the reality of compromise. But Criminal law governs the greatest power that it would provide a mechanism by which the the state exercises over a citizen; punishment present anarchy in federal sentencing could be for crime is the strongest expression of that reformed, over time, into a principled and just power. Thus, it is indeed extraordinary that for common law of sentencing. nearly 25 years the effort to bring order and That mechanism is the Sentencing Commis­ principle to federal criminal law has been a sion, an idea conceived by then Judge Marvin failure, especially since this is a country dedi­ Frankel of the U.S. District Court for the South­ cated more than any other to the rule of law. ern District of New York, which he offered But at last a gleam of light has appeared at in a 1973 book, Criminal Sentences: Law With­ the end of this long tunnel-a gleam other than out Order. Sen. Kennedy liked the idea, and the lights of an approaching train. The pro­ has vigorously brought it to the threshold of posed Federal Criminal Code, Senate Bill 1437, legislative acceptance. This is no minor achieve­ has been accepted by the Senate Judiciary ment. Sentencing reform of this type, though of Committee, and has since been passed by the central importance to criminal justice, is hardly a popular task. What, then, is the basic problem, and how �Dean of the Law School and Julius Kreeger Professor of does a Sentencing Commission promise a rem­ Law and Criminology. edy? This article originally appeared in the January 5, 1978, evidence exists that America's issue of the Los Angeles Times, Section II, page 7. Compelling

20 disposition of convicted criminal offenders is capricious and inconsistent. Decisions about the nature and duration of punishment How from a complex and unprincipled network of legisla­ tively authorized sentences and an even more complex division of sentencing power between prosecutors, defense counsel, judges, parole au­ thorities and correctional administrators. Thirty years of careful research has demon­ strated that the federal sentencing system, like those of the states, is characterized by unjust I disparities. Each judge may well have his own consistent and orderly views on fair and effective sentenc­ ing. But no agreed-on principles exist to guide him, no controlling mechanisms relate his views to those of his brother judges, and no estab­ lished system provides one judge with the con­ sidered views of his colleagues. As a result, ap­ peals against criminal sentences where available -and are not they available in the federal sys­ tem-cannot be decided in the frame of refer­ ence of formulated and published principles, The empirical literature on sentencing dis­ parities is extensive and reliable. Put curtly, almost surely burgeon further. Certainly we do like cases are not treated alike; sentencing is a not want a mindless severity that, in any event, random lottery. is likely to be nullified by the realities of charge As of this writing, four states-California, and plea bargaining in our cluttered courts of Indiana, Maine and Oregon-have adopted first instance. determinate-sentencing laws, and many other Rather, we need a discriminating sentencing states are considering doing so. There is a practice, graduated carefully to social harm and strong national movement away from indeter­ to social need-a just and orderly system, severe minate sentencing, away from the hypocrisy of where it should be, lenient where it should be. parole decisions in which it is pretended The proposed Federal Criminal Code would against the evidence that behavior in the cage go about that task as follows. As stipulated in is a reliable guide to behavior in the commu­ the Kennedy-McClellan bill, it would divide all federal crimes into nine levels of , nity. gravity: But to shift from the indeterminate to the five of felony, three of misdemeanor, one of determinate sentence-and California's recent infractions. The maximum sentences for felonies is the most change dramatic-does not in itself would be: Class A, life; Class B, 25 years; Class a for provide remedy the current anarchy of C, 12 years; Class D, 6 years; Class E, 3 years. sentencing. It leaves open the difficult issue of The three classes of misdemeanors would have who should fix the determinate sentence, and as maximums 1 year, 6 months and 30 days, how it should be fixed. respectively. An infraction would be a petty Can we on rely legislatures? I think not. offense punishable at most by a 5-day term, but Every pressure on the legislator is to inflate normally by a fine or probation. These would , punishment, to protract prison terms, because be the defined maximums; within their limits, no votes are lost by the forceful advocacy of the judge would set the term to be served. Our severity. already-overcrowded prisons would The bill would establish a Sentencing Com-

21 mISSIon to promulgate sentencing guidelines the Sentencing Commission, and in this way and policy statements to assist the judge in legal principles, now lacking in sentencing, sentence. The imposing commission would be could emerge under the Kennedy-McClellan with the . charged taking legislative categories bill. Thus could a compass to justice in punish- of crime and the legislative criteria of sentenc­ ment be deSigned-at last. ing offered by Congress and then shaping them Of course, the measure could conceivably into an extensive, reasoned, probably lengthy make the present chaos worse. It could increase and complex, system of offense-offender-punish­ sentences. The Sentencing Commission could ment categories, giving reasons for each. From be inept or excessively punitive-much would the congressional signals and within the legisla­ depend on the qualities of mind and ranges tive maximums of punishment, the commission of knowledge of the seven commissioners. would to a have fashion reasoned Code of Sen­ But the bill contains a couple of built-in tencing. safeguards. For one thing, it would set up a Would the sentencing judge be bound by the two-year lead time between its signing by the commission? No, he would be only guided. If President and the implementation of its sen­ the judge disagreed with a guideline or policy tencing provisions. Also, the emerging guide­ statement in a case before him, he could impose lines and policy statements would have to be whatever legislatively authorized sentence he published, and would inevitably be subject to thought appropriate-but he would have to set the closest criticism of Congress, judges, prac­ out his reasons in the record. titioners, academics and concerned citizens-to If the were more severe judge than the Sen­ say nothing of prison administrators and their tencing Commission recommended, the con­ understandably interested Hock, the prisoners. victed criminal could appeal; if more lenient, So there is a good chance that the Sentenc­ the U.S. attorney could appeal. An appeal by ing Commission could-indeed, I hope it wiIl­ either party would result in a properly justici­ gradually bring order to judicial sentencing. able issue: the published reasons of the Sen­ Further, if its work attracted the support of U.S. tencing Commission would confront those in attorneys, it might even in time bring justice the record offered by the trial judge. The ap­ to that other area of sentencing anarchy­ peal decision would feed back into the work of charge and plea bargaining.

22 The AILJ Reborn Again! Recycling The Reform

Walter J. Blum* and Willard H. Pedrick

The American Institute of Legal Jurimetrics Tax Expenditure Approach -the AILJ-is virtually unknown outside and Funeral Expenses the world estate of planners. Co-founded by A stellar item on our agenda is applying the Blum and Professors Walter]. Willard H. Ped­ tax expenditure concept to the estate tax. This rick some thirteen years ago, the Institute has concept was developed in connection with the adhered to its announced mission­ income tax. It is tenaciously intended to deliver a message "[ormulating reform proposals that would make that carries a great deal of political freight. It the estate and tax laws bear more federal gift presumes to tell us that, if by virtue of a deduc­ on donors and decedents." The equally spirit tion, or credit, or exemption, or bargain rate, that has motivated the AILJ can be discerned some taxpayer is taxed less than he would be its maiden from pronouncement: "When total under a "pure" version of the income tax, the even-handed to in the equality begins operate amount of tax dollars foregone are realistically estate and all to field of federal gift taxation, be viewed as though they were collected and donors and decedents will fare exactly alike then expended by the government. without to regard how their affairs have been While the AILJ has great reservations about arranged. At that point a vast amount of human the validity and utility of the tax expenditure energy presently employed in tax planning will, concept, the Institute maintains that if the idea be less tasks." freed for rewarding is sound in the income tax area it is equally sound in the area of death taxes. Once this is The following is an excerpt from the latest a number of Institute publication, entitled "The AILJ Re­ granted, expenditures by govern­ ment effectuated the estate tax born Again! Recycling the Reform." The wis­ through might seem in our To take dom purveyed obviously transcends the bound­ slightly outrageous society. but one consider the deduction allowed aries of estate item, planning. for funeral expenses. According to the tax ex­ penditure concept, the tax saved by virtue of that deduction is nothing more than a payment "Wilson-Dickinson Professor of Law. the by federal government made for the pur- This article appeared originally in the 1978 , February of issue of pose the of the dece­ Taxes-the Tax Magazine, published and copy­ celebrating departure righted 1978 by Commerce Clearing House, Inc. in Chicago. dent. The excerpts reprinted here are reproduced with permission. Now the important thing to observe is that

23 there is no ceiling on the deduction for funeral ages, for negligence on the part of an estate expenses. This means that the ceremonies can planner might not be an asset includable in the a estate tax If be lavish and extravagant-including, presum­ estate of decedent for purposes. ably, application of the wraparound technique that is the case the improved scenario for estate as part of mummification, if desired. Under planning almost writes itself: the man of means the income tax, we expressly would not allow need only select an incompetent estate planner the departed, during lifetime, to deduct for and then rely on his survivors to bring a mal­ living lavishly while away from home in the practice action that will generate a recovery pursuit of business. Can it be that the federal that escapes both gift and estate tax! Who government is expressing a preference for For­ knows, private enterprise may yet be saved by est Lawn over the Ritz! In passing, it must be tort law. remembered that the higher the marginal estate Closely related to the malpractice study is an tax bracket, the larger is the government expen­ Institute project erected on the newly dis­ of to diture that goes to subsidize funeral activities. covered constitutional right lawyers ad­ If the rate of inflation does not abate, we can vertise. The limits to such advertising, of expect to witness ever more monumental de­ course, have not yet been determined. Fees partures by the rich. Maybe there will then be clearly can be made known, and a statement of a sharper point in the observation that the experience and other qualifications will likely estate tax is pyramidal in shape. be permissible. It is to be assumed that the Aside from its glaring shortcomings, one other evolving rules will be fully applicable to estate aspect of the departure subsidy is notable. This planners. We can look forward to refreshing tax expenditure operates. directly counter to messages as lawyers try to catch up with trust societal efforts designed to conserve on energy. and life insurance companies in competing in Everybody is aware that staging large burial the estate planning world. Who could resist processions and erecting elaborate mausoleums such gems as these: unavoidably consume gasoline and other fuel. Death planning guaranteed for life. The disallowance of funeral expenses, at least Specialists in furnishing decedents with any that exceed some very modest amount, fringe benefits. would seem to be in keeping both with the Satisfaction guaranteed or your money national energy policy and the aspirations of back. those who are enthusiastic about the tax ex­ Not a single complaint from any de­ penditure approach to tax reform. cedent in over half a century. Furthermore, some interesting relationships Estate Planning Malpractice between advertising and malpractice actions Another long-range AILJ study stems from can be expected to develop. The lawyer who the marked growth of malpractice claims advertises himself as a highly skilled expert in brought against lawyers. Malpractice suits in­ estate planning would seem to expose himself volving tax lawyers, especially estate planners, to greater vulnerability for malpractice claims were not unknown in the past, but they were should there be a failure to minimize taxes comparatively rare (and not well publicized). under the circumstances with which he was Under the new dispensation in the tort world dealing; conversely, the lawyer who holds him­ all this seems to be changing. Estate planners self out as an amateur in estate planning would seem with a level of are vulnerable, and their exposure to liability is to provide himself higher likely to be of relatively long duration and to immunity from successful malpractice suits. On implicate substantial sums. the surface, this combination appears to be a The AILJ suspects that hidden in this devel­ very subtle form of income equalization of a opment lies the germ of a new format for crea­ type that the Institute is just beginning to ex­ tive estate planning. Under some circumstances plore. Indeed, the whole business is similar to less a recovery, perhaps including punitive dam- progressive taxation in that proportionately

24 is to be extracted from those who are of smaller with a nice choice: On the one hand, he can means. opt for brightness and a high probability of costly controversy with the IRS; on the other Disclosure and Equalization hand, he can seek dullness, a low probability of The prospective malpractice and advertising such controversy and stupid exposure to heavier projects are both brought into better focus by transfer taxes. another possible AILJ study, inspired by a pro­ Freedom of choice by the consumer is a hall­ vocative suggestion roughed out by the present mark of our society. To facilitate it, every finn Commissioner of Internal Revenue. It is Widely engaged in estate planning might have to em­ believed that well-advised persons of afHuence ploy at least one stupid lawyer. are now able to avoid income taxes by taking The intriguing linkage between advertising advantage of the IRS's inability to probe deeply and disclosure of doubt should not go un­ behind whatever appears on the face of returns. marked. One can imagine estate planning To deal realistically with the situation, the Com­ notices that read: "When in doubt, see us be­ missioner has floated the idea that those who cause we never are." Or: "Not a doubt in a ' prepare returns for elite taxpayers be required caseload." The possibilities are virtually limit­ to specify which doubtful issues had in effect less. For the most part they appear to turn on a been resolved in favor of the taxpayer in cal­ modified version of an old theme: "Less is more culating tax liability. The crux of this notion is -especially if it is in the right places." that the tax advisors know, while the IRS can­ Compulsory disclosure of doubt, along with not know from a mere inspection of returns, to malpractice vulnerability geared to advertising what extent taxpayers were given the benefit by lawyers, will be a grand sub-rosa device for of the doubt. The suggested solution in essence achieving "vertical equity" among tax planners. is a call for invoking the newest natural law­ It could turn out to be a giant step in levelling full disclosure. society. Without either accepting or rejecting this novel approach to administering the income tax, Death Taxes and Land Use the AILJ is prepared to consider the conse­ One other project on the AILJ drawing board quences that might be expected to follow if it is deserving of mention. The Institute is keep­ were applied to gift and estate tax returns. Fore­ ing a sharp lookout on the use of taxation to sight at the moment admittedly is rather murky improve the environment and conserve the use but at least one distinct possibility can be en­ of irreplaceable natural resources. visaged. This disclosure scheme perhaps is the But, it must be asked, is the estate tax adapt­ ultimate avenue for dealing with the very com­ able to the new goals? Preliminary research has mon complaint that the law is so complex that convinced the Institute that the project is most only a few top-flight estate planners can utilize promising. The results of a test boring, already it to best advantage. Under a rule requiring analyzed, should silence the skeptics. It stands disclosure of doubt, the most sophisticated to reason that we must maximize the efficient estate planners will be properly handicapped in use of land in a world that is short of food. To competing with those who are less skilled. achieve this end, all unproductive uses of avail­ The "hidden handicapping hand" presumably able land must be discouraged. Estate planners would tend to work as follows: The more are well acquainted with a striking instance of knowledgeable the advisor, the more he will waste-turning land into burial plots. The estate perceive doubtful issues, and thus the more he tax is surely an ideal vehicle for reducing this to disclose. on will be required Conversely, the awful brake efforts to accelerate food pro­ less knowledgeable the advisor, the fewer duction. All that is needed, it seems, is a credit doubts he will encounter and thus the less he for nonuse of land for burial purposes. will be under obligation to disclose. A person Reflect briefly on how such a credit would be seeking an advisor will accordingly be faced amenable to fine tuning by agrarian economists.

25 A sliding scale arrangement is obviously ap­ to say, the AILJ will not ignore this problem. propriate. A small credit might be given for Indeed, we might be confronting the ultimate burial in tiers (a pattern that should be particu­ case for application of the economist's dream­ larly congenial to estate planners), a larger a tax on discharge of effluent into the atmos­ credit for vertical interment, and perhaps a phere. (And who knows, we might also be full credit for cremation. sensing the dangers that lurk in a union of Encouragement of cremation of course raises estate planners and economists.) the specter of atmospheric pollution. Needless

26 Law, the Life of the Law, and Society: A Posthumous Book by Karl Llewellyn

the fall semester of 1928, Karl until Manfred Rehbinder of the University of DuringLlewellyn served as a visiting professor Zurich found a reference to it in William Twin­ at one of the (then) most distinguished Ger­ ing's careful and perceptive study on Llewellyn man law schools, that of the University of and the Realist Movement, published in 1973. Leipzig. His lectures on precedents and courts As he did not know German, Professor Twining in the United States were given in German, could do no more than mention the existence which Llewellyn spoke and wrote fluently. They of the manuscript. His curiosity awakened, Pro­ were subsequently published with the financial fessor Rehbinder contacted me, the manuscript assistance of the Leipzig law faculty: K. N. was located (of all places, at the Max-Planck­ Llewellyn, Priijudizienrecht und Rechtspre­ Institute in Hamburg, Germany, where it had chung in Amerika, Eine Spruchauswahl mit been sent on loan from the University of Chi­ Besprechung, Leipzig: Verlag von Theodor cago Law Library), and Dean Mentschikoff's Weicher, 360 p. (1933). permission for posthumous publication was . In the fall semester of 1931 Llewellyn paid a secured. Edited by Professor Rehbinder, the return visit to Leipzig, this time to lecture on book has now appeared in print: Karl N. the sociology of law. Once again, his lecture Llewellyn, Recht, Rechtsleben und Gesellschaft, notes were prepared for publication. By 1932, Berlin: Duncker & Humblot, 198 p. (1977). the financial situation of German law publishers The book, while disclaiming to be systematic, and German universities had deteriorated so is perhaps the most comprehensive statement badly that no publisher could be found who of the early Llewellyn's sociological approach was prepared to risk the investment without a (the lectures were written one year after pub­ substantial subsidy. No subsidy could be found. lication of THE BRAMBLE BUSH). In it, Llewellyn The German language manuscript on "Law, carefully defines his own position by compar­ the Life of the Law, and SOCiety" remained ef­ ison and in contrast with Eugen Ehrlich and, fectively hidden among the Llewellyn Papers in particular, Max Weber, whom he identifies

27 as the "master." Never shy about the creative language writings, this emphasis was most fully use of language, Llewellyn invented a new developed in his 1934 Columbia Law Review German word to as employ his central concept. article entitled "The Constitution as an Institu­ His interest, he wrote, was in the behavior of tion." officials as they decide and channel disputes Llewellyn's second German book, addressed arising out of the acts of laymen, not primarily to an audience unfamiliar with and, most likely, in the normative aspects of law. To express this uninterested in the partisan passions of the then focus, Llewellyn coined the term Trecht, a ongoing American debate over legal realism, neologism composed of the German words Tat may strike the reader as a more detached con­ (act, action, deed) and Recht (law). tribution to the sociology of law than some of In addition to methodological questions, the realist literature appearing in the United Llewellyn discusses the general relationship be­ States during the early thirties. Responding, as tween order and and society, leeways norms, it were, to listeners with different preoccupa­ the whole and its parts, and illustrates many of tions and different canons of legal scholarship, his thoughts by a marvelously lively, rich, and Llewellyn succeeds in combining the best of learned discussion of marriage as an institution two worlds, that is, American disrespect for in the modern world. Overall, Llewellyn's ap­ stifling conceptualism with German preferences proach in this book is perhaps most accurately for systematic exposition. characterized as "institutional". In his English Gerhard Casper

28 Ernst Wilfred Puttkammer (1891-1978)

* Wilfred Puttkammer died March 2, Remarks by Walter J. Blum Ernst1978, aboard ship in the lndian Ocean, while on vacation with his wife. He was 87. A It was in my second year in the University of memorial service was held in Bond Chapel May Chicago Law School, autumn of 1938, that I 3, at which Walter J. Blum delivered the re­ was enrolled in a course taught by Wilfred marks below. reprinted Puttkammer. The course, which ran for several Mr. Puttkammer the law in joined faculty quarters, dealt with criminal law and procedure 1920 and here until his retirement in taught and the problem of crime in our society. Putt, 1956. His field was criminal law. the During as he was always called, had written and taught 1940's he was a the Chi­ special investigator for in the field of crime for almost two decades. Crime Commission and served as director cago His extra-curricular activities on the Chicago the Crime Commission and chair­ of Chicago Crime Commission and his services as con­ man the Commission's committee on of police, sultant to the Chicago Police Department and and coroner. He was a time assistant sheriff, for other such organizations were well known. The the Illinois State Police. chief of insiders said that he was one of the front-line Mr. Puttkammer did work at undergraduate observers of our system of criminal justice. Princeton and received a J.D. from the Univer­ For most of the class, crime was somewhat sity of Chicago in 1917. He was a member of remote from our personal lives, yet a continuing Phi Beta Kappa and the Order of the Coif, presence of which we were reminded by the which he later served as national treasurer and daily newspapers. Though few of us expected He served in World War I and president. to deal with criminal affairs in our work as stayed on in France after the armistice to study lawyers, all of us were aware that they con­ at the University of Clermont. stituted a most significant part of the legal sys­ He became faculty editor of The University of tem. My own attitude, I suppose, was typical: Chicago Law Review at its founding in 1933 it was good, but not vital, to know something and served as advisor 1936 to 1956. faculty from about the technical rules of criminal law; it was He is survived his wife Helen; a by daughter, important, however, to come to grips with the Lorna P. Straus, Associate Professor of Anatomy problems confronted by society in applying the at the who also serves University of Chicago, law of crimes and invoking criminal sanctions. as Dean of Students in the Associate College, Putt was admirably suited to guide us through Dean the and Dean Ad­ of College, of College and nourish our interest in this area of the law. missions; a son, Charles, in D.C.; Washington, The course was a combination of a rigorous and seven Mrs. grandchildren. Puttkam_mer's exercise in defining various crimes and a wide home address is 1221 East 56th Street, Chicago, exposure to the practicalities of the criminal Illinois 60637. justice process. It succeeded admirably in im­ pressing upon us a unifying approach to the whole of criminal law. He made us explore not (!Wilson-Dickinson Professor of Law. only what the law purports to be and do, but

29 also how the rules bear upon the attitudes and room. conduct of those who are affected by them, in­ In my senior year I became further ac­ cluding the accused, the prosecutors, the de­ quainted with Putt through contacts arising out fense lawyers, the police, the jurors, the judges, of my position as Editor-in-Chief of the Law the jailers, and the public at large. The success Review. Putt was then faculty adviser to the of the course was in part due to the teacher's Review, as he was for the first 26 volumes, and great knowledge of his subject. It was also due he continued to take an interest in its develop­ to his personality and style. ment. (In fact, during some of the lean and Putt at all times was completely in control of difficult years for the school in the World War his class. When he lectured, his thoughts were II period, when the staff at one time was only flawlessly communicated in artfully constructed two students, Putt almost alone kept the Review sentences, each neatly tailored for the context. gOing.) When I was editor, Putt still engaged These sentences invariably were combined into in the practice of giving the proofs a final in­ well-organized sequences, so there was no mis­ spection-largely, I think, because of the great taking the structure that he had designed. pride he took in the enterprise. His attention to Listening in class was not unlike hearing a detail again was evident. There never was a set superbly crafted essay being read. There was of proofs on which Putt did not discover printer always a beginning, a middle, and an end, with errors that the rest of us had let go by. The all the parts fitting together harmoniously. present suite of offices in the Law School that When Putt asked questions, they were put houses the Law Review is most appropriately crisply and succinctly. They almost obliged the named in his honor. student to attempt a response in a similar All of these early impressions as a student fashion. Class discussions always seemed headed were strengthened when, soon after the close in a direction that Putt had carefully mapped of World War II, I became a member of the out in advance. The profile of a discussion Law School faculty and could enjoy having could be seen to rest on the minute and logically Putt as a colleague. On all occasions he tried arranged distinctions that Putt managed to im­ to make the faculty environment comfortable part to or draw out of his students. for his juniors. In doing so, he often would The course also was distinguished by the call upon his sense of humor and marvelous overall sense of order that was imposed on a skill as a narrator. Anyone with even the slight­ large and sprawling subject. Putt was meticu­ est inclination to see the world was bound to be lous in adhering to a schedule announced at spurred on by his stories of travels on which the very outset. It was generally thought that the Puttkammers had embarked. These ac­ he could tell in advance of opening day exactly counts were prose at its best, and they en­ which page in the materials we would reach by livened numerous lunches of faculty members the end of each class session. Indeed, this was at the Quadrangle Club. one of the few courses during my four years In faculty meetings Putt was ever a model as a law student in which every piece of the discussant. He expressed his own position skill­ assigned readings was covered as intended by fully but gently. He never raised his voice and the instructor. he never incited others to do so. Whether he At all times in class Putt was dignified and was with the majority or minority, his conduct yet not distant from his students. In carrying on tended to keep the exchange of views on a high discussion, he was always patient and gracious level of civility. In every respect, his standard -putting students at ease. Even his manner­ was that of good decorum. isms, including some arm motions that may But what distinguished Putt most as a col­ have been derived from watching basebal1 league was his attitude toward the Law School. players in action, were comforting. The concept He was impressed with the background of the of old-world courtliness perhaps best captures institution and understood the sources of its the ambience that Putt generated in the class- strength. He was both enormously appreciative

30 of, and dedicated to, the ideals and aspirations face of difficult problems, and moderation in of the school. Clearly, he saw himself as carry­ pressing a point of view and in offering a ing on its traditions. prescription. The book is pervasively marked by All these qualities of mind and character can prudence and balance. Its author comes through be readily detected in reading his most durable as the Putt I knew: a very knowledgeable man work-his book Administration of Criminal trying to be helpful in solving important prob­ Law. It is a splendid amalgam of critical anal­ lems in a disciplined and decent manner. ysis, sound policy orientation, humility in the

31 Hans W. Mattick (1920-1978)

w. Mattick died on January 26, 1978 at Remarks by Norval Morris* Hanshis home in Hyde Park. He was 57. He had been Professor of Criminal Justice and Director Hans W. Mattick spent two periods of his of the Center for Research in Criminal Justice life at this University-from 1946 to 1951 and at the Illinois Circle University of Chicago from 1965 to 1972. We gave amply in the first; campus since 1972. He was an expert on jails, we received abundantly in the second. prisons, and penal reform. A wandering childhood, six grade schools, Mattick was Associate Director, and later Co­ three high schools, periods on and off welfare, the Center Studies in Criminal Director, of for periods on the road in the sense known to a at the Law School Justice University of Chicago young hobo of the Depression, four years in the 1966 to from 1972. Previously he had been Army, of which two were in the European director of the Chicago Youth Development theatre, all brought an unusual first sergeant Program, assistant warden of the Cook County to the College, to the Department of Sociology, and a Jail, sociologist working with the Illinois and to the Committee on Social Thought. It Parole and Pardon Board. is a sobering aside that another Hans Mattick­ Mattick entered the University of Chicago in if we were blessed to find one-probably would and received a in 1946, Bachelor's degree liberal not be admitted to our University, and certainly arts in 1948. From 1949 to 1951 he did graduate would lack the accelerated opportunities that work in SOCiology, criminology, and psychology, greatly helped to shape Hans's mind. We should receiving a Master's degree in 1956. have more wild cards to play. He is survived by his wife June and his For Hans, the wild card was held by Joseph mother. Lohman; it came into Lohman's hand because Reprinted below are excerpts from Norval he had the·· perception to be fascinated by a Morris's remarks delivered at the memorial ser­ chunky youth he met by chance one night, vice held in Bond Chapel on March 31. behaving aggressively on the uncertain edge of delinquency but with a copy of The Origin of Species poking out of his hip pocket. Why did he have it, Lohman enquired? For the com­ "Dean of the Law School and Julius Kreeger Professor of pelling reason that the young Mattick liked it, Law and Criminology.

32 and what business was that of anyone else? than anyone else in the world-the American And Lohman had the sensitivity to understand jail. He came to know it from administrative Mattick's potential, and later the energy to sup­ experience (again under the influence of Joseph port his growth. Lohman), from earlier brief visits as a client to When he came to us, Hans had already read an occasional lock-up, from research, and from widely, but with complete lack of direction. study. It was a subject appropriate to Hans's Very difficult times and his voracious energies pervading concern for the diminution of human had combined to give him a diversity of exper­ suffering. In the jails is collected, as he often ience, street wisdom and understanding far told us, a vast array of the victims of adversity, beyond his years. This University in its vigorous the socially incompetent, the physically and and ranging post-war years taught him to cul­ mentally ill, the retarded, the luckless waifs and tivate his enquiring and independent mind, strays of a harsh society, as well as a powerful taught him to harness and direct his intel- admixture of the wicked and the evil. He was moved by his heart, of course, but his mind always held a steady regard for political and social realities and achieved a firm adherence to scholarly range and precision. His Illinois Jails Survey is a model of these qualities, carrying forward the great traditions of accuracy and controlled fervor for reform of John Howard, the first of the penal reformers outside the Church to care for minimum decencies even in the jail cell. Few feel the lash on another's back; we all have blinkers to the suffering of others; but Mattick more than anyone I have ever known managed without sentimentality to empathize with the downtrodden. He often risked himself on the line of prtnciple=-hls resignation offered if the child remained in the jail; his resignation completed as a protest against executions at the jail. And one always knew in dealing with Mat­ tick that he expected similar behavior from you; hence he elevated and developed his col­ leagues and friends as carping critics never can. When he returned to this University, he taught us daily for over six years at the Center for Studies in Criminal Justice. His formidable intellectual and aesthetic range of interests, combined with an utter seriousness of purpose, made him a great teacher. He launched a series ligence, taught him the grind and the joy of of studies which shaped the lives of more than scholarship. He wrote Parole to the Army as the a few of us in this chapel this afternoon; they cultnination of that period and was launched will continue to dominate our scholarly and on a career as a professional criminologist, a community efforts-studies in violence, in sen­ professional criminologist with a most unusual tencing, in the work of the police, in prisons personality and an extraordinary range of inter­ and, of course, in jails. He was, for those grad­ ests. uate students and colleagues who fell within Hans Mattick mastered one subject better his powerful concern, a lasting influence. He

33 was exhaustive but never dull, a tough critic in wit, had a developed taste and knowledge of but one who always suggested a way out or a [azz, a trained feeling for art and poetry. What way around. He knew a very great deal and a tumultuous delight he must have been in his what was constantly surprising was that so rapscallion early manhood-not at all easy to much that he knew turned out to be true! keep up with but a jewel of a companion if one By precept as well as preachment, action as could. well as advice, he led us, his students, in this Let me close this memorial meeting by read­ chapel today and elsewhere. We were priv­ ing a poem to you-"Dover Beach" by Matthew ileged far beyond our deserts; none of us would Arnold-in which Hans took particular plea­ wish ever to be free of his tutelage. And none sure, his favorite poem, set deep in his affection, of us will. Hans was no one for dreams of im­ to the degree that he commissioned an artistic mortality; but it is certain that all who related representation of it by Ed Balchowsky entitled more than transiently to him will be influenced "Where Ignorant Armies Clash by Night." The throughout their lives by him. And so the rip­ poem reveals something of the fire and ice, the ples of decency and informed humanism of his joy and sadness, within Hans-a tension known life will spread. to a degree to all of us; but, I suspect, Hans Our present sense of grievous loss should not lived the conflict more insistently, with more obscure the fact that Hans was a joyous man. direct feeling, higher plateaus, and deeper He took great pleasure in the senses, delighted depths, than the rest of us.

34 Ann W. Barber (1911-1978)

Ann Barber, retired registrar of the Law Remarks by Richard I. 8adger* School, died May 5, 1978, following an automo­ bile accident while the south France. visiting of When Ann Barber retired from the Law A memorial fund has been established in her School in June, 1976, the students organized a to enable the Ann Barber memory, Outstanding party in her honor. At that time we presented Service Award to be to a third­ given annually her with a gift which seemed particularly suit­ student who has made a year particularly help­ able for the occasion: her own Law School ful contribution to the of at the Law quality life transcript, with the highest average in the School. school's history-approximately 85. I would like Mrs. Barber from Smith graduated College to share with you now a story I told on that with honors in 1933, and did work at graduate occasion. 1 reported that in 1962 an emergency Yale and at the Flor­ University University of meeting of the faculty building committee had She the Law School in ence, Italy. joined staff been called. Although most of the faculty, stu­ 1962 and served as Assistant to the Dean of dents and staff generally were pleased with the Students until her retirement in mid-1976. new building, everyone recognized that Saari­ She is survived her husband of by Courtenay, nen's design had omitted a very important ele­ 1344 East 48th Street, and four sons: Chicago, ment: the glass and grey stone structure lacked III, Woods Hole, Mass.; Robert, Courtenaq of any warmth whatsoever. The Committee de­ Falmouth, Mass.; and Thomas and Peter, of of cided that the only solution was to hire someone Chicago. who would add the warmth which Saarinen A memorial service her was held 22 for May had left out. Ann Barber joined the Law School in Bond at which Dean of Students Chapel, shortly thereafter. In retrospect, it was prob­ Richard I. delivered a Badger eulogy, portions ably one of the best appointments the Law which are below. of reprinted School ever made. For nearly 15 years, Ann Barber was a source of warmth and thoughtfulness for students, fac­ o Assistant Dean and Dean of Students. ulty and staff. I remember my first contact with

35 Ann as a student. was It registration day for no doubt, sensed our concerns and gave just the first a us year students and group of huddled right mix of direction and support to make us in a conference room. Each of us probably had feel comfortable. It was the same throughout the same anxieties about the three-year expe­ the three years. Whenever there was a time of rience we were about to begin but we tried des­ trauma for us-such as examinations or when perately not to reveal them to each other. Ann, grades were returned-Ann Barber was there to cheer us up when we needed it. In a world described as a "paper chase," Ann had a way of making the experience bearable, and at times, almost enjoyable. As a student I had subscribed to the common belief that Ann Barber really ran the Law School. As an administrator I discovered that was not quite true. I learned that no one could ever hope to run, in the traditional sense, an institution so heavily populated with lawyers and almost-lawyers. Such institutions seem to have a mind of their own. But I did find, as I am certain my three predecessors also had dis­ covered, that Ann helped so much to make the Law School a friendlier place. Ann provided the wisdom and concern which kept us from making bad decisions in hard cases, the cheerfulness and humor which helped restore the proper perspective to our lives, the warmth and friendship which helped us all to survive the law school experience. Countless Chicago graduates remember Ann with fond­ ness. She played an important part in all our lives.

36 From the Law School

ENDOWED PROFESSORSHIPS Director of the American Bar Foundation from 1972 until 1978. His book Insurance and Public Three of the four endowed professorships an­ Policy won the Elizur Wright prize for 1960. nounced in connection with the Law School's He is the principal draftsman of the revised in­ 75th have been filled. surance laws of Wisconsin. He has also written anniversary / David P. Currie has been named to the Harry a casebook in legal history. N. Wyatt Professorship. Mr. Currie joined the Mr. Kimball holds a B.C.L. degree from Ox­ Law School in He was faculty 1962. the main ford, where he was a Rhodes Scholar, and an author of legislation creating the Illinois En­ S.J.D. from the University of Wisconsin. He vironmental Protection Act of 1970. He then became Dean of the University of Utah Col­ served for two as chairman of the years Illinois lege of Law in 1950, at the age of 31. From Pollution Control Board, where he acquired a 1957 to 1968 he was a member of the University reputation as a tough but reasonable enforcer of of Michigan law faculty. After leaving Mich­ laws. antipollution igan and before coming to Chicago, he was Mr. Currie did undergraduate work at the Dean of the University of Wisconsin Law University of Chicago and received a law School. in 1960 from degree Harvard. He teaches ad­ The Seymour Logan Professorship was es­ ministrative law, civil procedure, and federal tablished by Mr. Logan's widow, Renee, and in addition a on jurisdiction, to seminar anti­ their four children. Mrs. Logan is an alumna of pollution legislation. He has written three major the University's School of Social Service Ad­ casebooks: Cases on and Materials Federal ministration, where she received an M.A. degree Courts and (1968 1975), Cases and Materials in 1970. She earned an undergraduate degree on Pollution (1975), and Cases and Materials from Northwestern. on Conflict of Laws (1968 with R.C. Cramton, Mr. Logan received an A.B. from the Univer­ and 1975 with Cramton and H.H. Kay). sity of Chicago and received legal training at The Wyatt chair is named for Harry N. the University's Law School and at the Chicago­ Wyatt, a senior partner with the Chicago law Kent College of Law. He was associated with firm of D'Ancona, Pflaum, Wyatt and Riskind, the Morris D. Logan and Sons real estate com­ and was established through a gift from his pany, a firm founded by his father, and owned wife, Ruth F. Wyatt, who received her under­ Capital Associated Hotels, a brokerage com­ graduate degree from the University. Mr. Wyatt pany. He was director of the University of is also a member of the Law School Develop­ Chicago Foundation for Emotionally Disturbed ment Council, past president of the Law School Children and a trustee of Roosevelt University. Alumni Association, a former member of the From 1964 until his death in 1967, Mr. Logan Law School Visiting Committee, and has served was president and chairman of the Greater on numerous alumni committees for the Law Chicago Hotel Association. School. Richard A. Posner is the first incumbent of Spencer L. Kimball has been named the first the Lee and Brena Freeman Professorship of Seymour Logan Professor of Law. An authority Law, established to promote research and teach­ on insurance regulation, he [oined the Law ing in comparative domestic, foreign, and inter­ School faculty in 1972, and served as Executive national economic regulation. He graduated

37 from Yale in 1959 and received an LL.B. from anteed by the First Amendment. The Kalven Harvard in 1962. He joined the Law School chair is to be filled by a scholar in First Amend­ faculty in 1969 and has edited The Journal of ment studies. Legal Studies since 1972. Mr. Kalven's interest in First Amendment Previously Mr. Posner served as Assistant to issues led to his often cited article The Meta­ the Commissioner of the Federal Trade Com­ physics of Obscenity (1960) and to his book mission, Assistant to the Solicitor General of the The Negro and the First Amendment (1965). United States, General Counsel of the Presi­ The classic 1953 essay on tax justice by Walter dent's Task Force on Communications Policy, J. Blum and Mr. Kalven, The Uneasy Case for and Associate Professor at Stanford Law School. Progressive Taxation, has just been republished He is the author of Antitrust: Cases, Economic by the University of Chicago Press in its Mid­ Notes, and Other Materials; Economic Analysis way Reprints series, with an epilogue by Mr. of Law; and other books and articles. Blum, The Uneasy Case for Progressive Taxa­ Lee A. Freeman and his wife, Brena, matched tion in 1976. At the time of his death, Mr. Kal­ a grant from the Ford Foundation to create the ven was completing a book on the theories Lee and Brena Freeman Professorship. Mr. underlying contemporary American law on free­ Freeman is senior partner in the Chicago law dom of speech, which also reflected his thoughts firm of Freeman, Rothe, Freeman and Salzman, on modern SOciological findings and theories and is one of the leading antitrust lawyers in about the formation of public opinion and the the United States. He is a member of the Anti­ economics of modem mass communication. trust Section of the American Bar Association, A faculty committee of Gerhard Casper, the Illinois Bar Association, and the Antitrust Philip B. Kurland, and Geoffrey R. Stone is and Public Utility Committee of the Chicago considering possible candidates for the Kalven Bar Association. chair. In addition to his professional activities, Mr. Freeman is director and general counsel-secre­ ARRIVALS AND DEPARTURES tary of the Lyric Opera of Chicago, past presi­ dent of the Fine Arts Music Foundation, and Frank H. Easterbrook, J.D. '73, has been ap­ director of the Chicago Ballet, Goodman The­ pointed Assistant Professor, and will join the atre, and Travel Light Theater. He serves as a faculty in June of 1979. He is currently Deputy governing life trustee of the Chicago Art Insti­ Solicitor General of the United States. His tute. He and his wife, a graduate of the Chicago particular scholarly interests at present are anti­ School of Music, financed the Fourth Interna­ trust law, government regulation of private con­ tional Verdi Congress, held in Chicago in 1974, duct, and criminal law and procedure. and have commissioned chamber music by Charles M. Gray has returned to the Uni­ American composers, including the Pulitzer versity and to the Law School, and will teach Prize-winning Third Chamber Quartet by Kare] two courses in legal history this year. He is Husa. Professor of English Legal History in the De­ The Harry Kalven, Jr. Professorship of Law partment of History, and Lecturer in Law. Most has been established with funds from the recently he has been Senior Research Associate Robert R. McCormick Charitable Trust of Chi­ and Lecturer in Law and History at Yale. cago, in honor of the late Professor Kalven, who Stanley N. Katz, Professor of Legal History was a member of the Law faculty from 1946 since 1971 and Associate Dean of the Law until his death in 1974 at age 60. The Me­ School, left Chicago in July to take a chaired Cormick Charitable Trust was established by professorship in the History Department at the 1955 will of the late Col. Robert R. Me­ Princeton. The Glass Menagerie said of him in Cormick, editor and publisher of the Chicago 1973, "Everybody doesn't like something, but Tribune. Mr. Kalven was an authority on law nobody doesn't like Stan Katz." He will be governing free speech and other rights guar- missed.

38 VISITORS Government. He has practiced law in New York City. Six visiting faculty members will be in resi­ A.W.B. Simpson is Professor of Law at the dence during some or all of the academic year University of Kent at Canterbury, England. 1978-79. From 1955 until 1973 he taught at Oxford Law Paul M. Bator will be here all year. He is School as a Fellow of Lincoln College. He will Professor of Law at Harvard, where he has teach Jurisprudence in the winter quarter. He taught since 1959 in the areas of administrative has written A History of the Common Law law, civil procedure, federal jurisdiction, and on Contracts (1975) and edited Oxford Essays art and the law. He is co-author of the second in Jurisprudence (1973). He is a Lay Magis­ edition (1973) of Hart & Wechslels The Fed­ trate. His main teaching interests are in legal eral Courts and the Federal System. He holds history, jurisprudence, and criminal law. He has Bachelor's and Master's degrees' from Princeton served on government committees dealing with / and an LL.B. from Harvard. He is teaching reform of the law on rape and obscenity. Mr. Federal Jurisdiction I and II this fall and win­ Simpson holds M.A. and D.C.L. degrees from ter, and will teach Civil Procedure in the spring. Oxford. Continuing a fine tradition, Gareth Jones will A. Dan Tarlock has taught at the Indiana return in the spring for the fourth successive University School of Law since 1968. He will year. He is a Fellow of Trinity College, Cam­ present courses in two of his specialties: Oil and bridge, and holds the Downing Professorship of Gas in the winter quarter and Land Use Con­ the Laws of England. He is an honorary trols this spring. He has co-authored casebooks Bencher of Lincoln's Inn. He was educated at on Water Resource Management and Environ­ the Universities of London and Cambridge. Mr. mental Law and Policy, and is working on a Jones is co-author, with Robert Goff, of The casebook on land use controls. In 1977 he was Law of Restitution, a revised edition of which Professor-in-Residence with the Omaha-based has just been completed; he also wrote The law firm of Kutak, Rock and Huie. He holds History of the Law of Charity, 1532-1827 A.B. and LL.B. degrees from Stanford. ( 1969). This spring he will be teaching Restitu­ There are two new faces among the Lecturers tion. At Cambridge he teaches contracts, resti­ in Law this year. tution, trusts, and English legal history. Peter L. Rossiter of Schiff Hardin & Waite is Hans G. Rupp will also be here in the spring teaching Corporation Law in the fall quarter quarter, teaching a course with Gerhard Cas­ and Commercial Law I this winter. Mr. Rossiter per, Comparative Constitution Law: United received a J.D. from Yale Law School in 1973. States and Federal Republic. Judge Rupp has He clerked for Judge Alvin B. Rubin, then U.S. had a distinguished career as a scholar, public District Judge, Eastern District of Louisiana, servant, and supreme court justice (1951-1975) from September 1973 until May 1975. He also in Germany. He has taught constitutional law at taught part-time at Tulane University Law the University of Tiibingen since 1955. He School in 1975. He clerked for Chief Justice studied law at Tiibingen and Berlin, receiving a Warren E. Burger for the 1975 term, and doctorate from Berlin in 1933. He studied at joined Schiff Hardin & Waite in August 1976. Harvard Law School from 1935 to 1937. Michael L. Shakman will teach a winter­ Paul M. Shupack, J.D. '70, will be teaching quarter seminar, Principal Issues in Civil Liti­ Contracts this winter and Commercial Law II gation. After receiving a J.D. cum laude from in the spring. He is Assistant Professor at the this law school in 1966, he joined the Chicago Benjamin N. Cardozo School of Law of Yeshiva law firm of Devoe, Shadur & Krupp. During University. After completing undergraduate 1966-67 he clerked for Justice Walter V. Schae­ work at Columbia, Mr. Shupack studied politi­ fer of the Illinois Supreme Court. Mr. Shakman cal theory, constitutional law, and jurisprudence is a member of the First Panel of Attorneys, at Harvard as a Woodrow Wilson Fellow in Federal Defender Program for the U.S. District

39 Court, Northern District of Illinois, and serves poration Counsel for the City of Newark from on the National Panel of Arbitrators of the 1970 to 1973. He is a 1969 graduate of Rutgers American Arbitration Association. He is an As­ Law School and did undergraduate work at sociate Editor of the ABA journal Litigation. Harvard. Mr. Hodes is working on a textbook that will take a clinical or "problems" approach BIGELOW TEACHING FELLOWS to legal writing and research.

Five Fellows, under the of Bigelow guidance MANDEL LEGAL AID CLINIC Associate Professor Geoffrey R. Stone, will be providing individual tutoring and small-group instruction and practice in legal analysis, re­ There are two new staff attorneys and clin­ search, and exposition for first-year students. ical fellows at the Clinic this year. Mark A. Ash has a J.D. degree from the Uni­ Laurence A. Benner, J.D. '70, has been Na­ versity of Virginia Law School and under­ tional Director of Defender Services of the graduate training in English and general studies National Legal Aid and Defender Association, at Harvard. He has clerked for the San Fran­ and director of the Office of the Defender in cisco law firm of Lillick, McHose & Charles. Grand Rapids, Michigan. In 1972 Mr. Benner Charles R. DiSalvo has been the directing directed a study funded by the National Insti­ attorney of the Barbourville office of the Ap­ tute of Justice to examine indigent defense ser­ palachian Research and Defense Fund of Ken­ vices throughout the country. The findings of tucky since July 1976. He has worked for ARDF the study were published as The Other Face of since 1974, representing community groups in Justice. health care, education, and coal-related envi­ Mark J. Heyrman, J.D. '77, has been Assistant ronmental matters and in civil-rights litigation. Defender with the Illinois State Appellate De­ He holds a Master's degree in East Asian Stud­ fender in its Second Judicial District Office for ies from Claremont Graduate School and a J.D. the past year. His undergraduate degree is in from the University of Southern California. the administration of criminal justice, from the Thomas D. Eisele graduated from Harvard University of Illinois at Chicago Circle. Mr. Law School in 1973. Since then he has worked Heyrman specializes in the rights of the men­ on corporate and administrative law and secur­ tally disabled. Mr. Benner and Mr. Heyrman ities financings at Isham, Lincoln & Beale in join three other clinical fellows: Marc O. Beem, Chicago (1973-1976) and dealt with environ­ J.D. '75; Frank S. Bloch, who is also Lecturer in mental issues as Deputy Director of the Lake Law; and Randolph N. Stone, who has been Michigan Federation (1976-1978}. working in the Woodlawn Community Defender Therese Green's undergraduate training was Office since the summer of 1977. in English and SOciology at Alverno College in Charlotte K. Schuerman is now at the Clinic Milwaukee, where she took a B.A. in 1965. She full time as Social Worker and Field Super­ spent two years in Ethiopia as a Peace Corps visor. volunteer and later worked on development of The Law School has received a three-year Peace Corps programs and the training and grant from the National Institute of Mental assessing of volunteers. Following graduation Health for an experimental project to provide from Chicago-Kent College of Law in 1977 she Interdisciplinary clinical training to law and clerked for Chief Judge Floyd R. Gibson and social-work students in the representation of Judge Myron H. Bright of the U.S ..Court of persons suffering from mental illness. Mark Appeals, Eighth Circuit. Heyrman and Charlotte Schuerman are con­ For the past five years W. William Hodes has ducting the project, which will focus on the been senior staff attorney with the Education legal and social service needs of those who are Law Center in. Newark, New Jersey, a public outpatients and have been released from menta] interest law firm. He served as Assistant Cor- hospitals. This is one of ten experimental inter-

40 disciplinary programs currently being sponsored Visiting Professor of Economics Samuel Brit­ by NIMH. tan delivered the Henry Simons Lecture April 4 A one-year grant from the U.S. Department on "The British Economy: Its Present Position of Health, Education and Welfare has been re­ and Future Prospect," Of, "How English is the ceived to examine alternative methods of clin­ English Sickness?". Mr. Brittan has been prin­ ical supervision on actual cases. Mandel Clinic cipal economic commentator for the Financial attorneys will undertake to identify the most Times in London since 1966 and has written a effective approaches by studying the methods number of books. A published version of his used with their students during the 1978-79 Simons Lecture came out in the October 1978 academic year. The funds were awarded from issue of the Joumal of Law and Economics. Title XI of the Higher Education Act of 1965, which provides support for clinical legal edu­ Gerhard Casper, Max Pam Professor of Amer­ cation. Frank S. Bloch will direct activities ican and Foreign Law and dean-designate, has under the grant during the autumn quarter. been elected to membership in the American Law Institute. ALUMNI COLLEGE '78 He presented a paper on "The Committee System of the United States Congress" at the The Alumni College program "Individual Tenth International Congress of Comparative Rights and the Concept of Equality," sponsored Law, held August 23-28 in Budapest, Hungary. by the UC Center for Continuing Education He participated in two-day conferences on and held at CCE July 24-29, included talks by "Practice before the United States Supreme four members of the Law faculty, Philip B. Kur­ Court and Courts of Appeal" held in Chicago, land, H. Douglas Laycock, Antonio Scalia, and Los Angeles, and New Orleans, speaking on Franklin E. Zimring, and by two graduates of "The Court's Workload and its Effect on Prac­ the Law School, Carol Moseley Braun and tice." Elmer Gertz. Ronald H. Coase, Clifton R. Musser Professor TAX CONFERENCE of Economics at the Law School, was elected to the American Academy of Arts and Science in The 31st Annual Federal Tax Conference was May, at the Academy's 198th annual meeting held October 25-27 in the Auditorium of the in Boston. Mr. Coase is one of five University of Prudential Building in Chicago. A full house of Chicago faculty members among 107 elected over 450 registrants attended the sessions. Fellows this year.

FACULTY AND STAFF NOTES Kenneth W. Dam, Harold J. and Marion F. Green Professor in International Legal Studies, Assistant Dean and Dean of Students Richard is a member of the Ford Foundation "Next I. Badger is serving a two-year term as one of Twenty Years" Energy Study Group. six elected trustees of the Law School Admis­ His book with George P. Schultz, Economic sion Council, 1977-1979. Policy Beyond the Headlines, was published by W.W. Norton in March. Admirers of Professor Walter J. Blum and the He spoke on "Checks and Imbalances in Eco­ late Harry Kalven, Jr. may wish to celebrate in nomic Policy Making" at a conference on an­ an appropriate fashion the reissuance of their alysis of security prices held at the Graduate classic study The Uneasy Case for Progressive School of Business in May. Taxation as a University of Chicago Press Mid­ Assistant Dean Frank L. Ellsworth has been way Reprint. The volume is thought by many appointed to a three-year term on the Com­ to be perhaps more timely now than when it mittee on Continuing Legal Education of the was published in 1953. Association of American Law Schools.

41 He spoke on "American Legal Education: Special Committee on Aeronautical Law, on the Definition and Ingredients" on June 28 at a Civil Aeronautics Board under Chairman Alfred panel during the annual meeting of the Amer­ Kahn, during the ABA meeting in New York ican Association of Law Libraries, in Rochester, in August. He testified before the Subcommittee New York. on Communications of the House Commerce

Committee on the Communications Reform Act Susan C. Haddad, Assistant to the Dean since of 1978, August 22. On September 15 he gave 1975, left the Law School in May to practice a paper on "The Political Economy of Innova­ family law with the Chicago firm of Bentley, tions in Drugs and the Proposed Drug Regula­ DhCanto, Silvestri, Forkins & Doss. She handled tion Reform Act of 1978" at the American En­ arrangements for many Law School events and terprise Institute in Washington, D.C., during activities and alumni events, edited the Law a conference on the international supply of School Record and Occasional Papers> served medicines. A shorter version of this paper is as managing editor for the Law Alumni Journal, published elsewhere in this issue. He spoke on and also had responsibility for overseeing pub­ the political economy of the patent system to lication of the Law School Announcements and the Olin Fellows at the Center for Law and the Glass Menagerie. Economics, University of Miami, on September 29. The fourth edition of Cases and Materials on State and Local Taxation, by Jerome R. Assistant Professor Anthony Kronman will be Hellerstein and Assistant Professor Waiter Hel­ a visiting professor at Yale Law School during lerstein, was issued by the West Publishing Com­ 1978-79. pany in April. Mr. Hellerstein is on leave this year at the University of Georgia School of Philip B. Kurland, Professor of Law and Wil­ Law. liam R. Kenan, Jr. Distinguished Service Pro­ Mr. Hellerstein was on the faculty of the ALI­ fessor in the College, presented the convocation ABA Course of Study in State and Local Tax­ address, "Lament for Camelot," at the Univer­ ation and Finance, held in New York in March. sity's 368th convocation, in Rockefeller Chapel, He presented a class on the constitutional law in June. The text was published in the July 24, background to state and local taxation at the 1978, issue of the University of Chicago Record. Tax Executives Institute State and Local Taxa­ Mr. Kurland's book Watergate and the Con­ tion Course held in East Lansing, Michigan, in stitution was published this year by the Uni­ May. He presented a paper, "Constitutional versity of Chicago Press. Constraints on State and Local Taxation of En­ ergy Taxation held in Washington, D.C., in Professor John H. Langbein presented the May, co-sponsored by the National Tax Asso­ fourth William Crosskey Lecture in Legal His­ ciation and the Tax Institute of America. tory, "Torture and Plea Bargaining," at the Law School October 19. His book Torture and the Stanley A. Kaplan, now Professor Emeritus, Law of Proof: Europe and England in the will continue to teach Federal Regulation of Ancien Regi11Je was published last year by the Securities as well as Fiduciary and Professional University of Chicago Press. Mr. Langbein Responsibility this year. He has become a part­ spoke at the Special National Conference on ner in the Chicago law firm of Reuben & Plea Bargaining, sponsored by the National In­ Proctor. stitute of Law Enforcement and Criminal Jus­ tice of the LEAA, held at French Lick, Indiana, Professor Edmund W. Kitch spoke to the Chi­ June 15-17. cago area alumni on "The Effect of Federal Oil During 1977-78, Mr. Langbein was Visiting Price Regulation" at a Loop Luncheon May 10. Fellow at All Souls College, Oxford, and Visit­ He addressed a panel organized by the ABA ing Scholar at the Max Planck Institute for

42 European Legal History, in Frankfurt, Ger­ Summer Program for Lawyers. many. His year of research was devoted to two related projects: a study of the historical foun­ The second edition of Labor Law: Cases, dations of adversary criminal procedure in. Materials and Problems, by Bernard D. Melt­ eighteenth-century England, and a study of the zer, James Parker Hall Professor of Law, was French and German reception and transforma­ published last year by Little, Brown, and has tion of the Anglo-American jury system in the been well received. Professor Neil M. Bern­ nineteenth century. stein has hailed it as "the best labor law book that is currently available." Professor Raymond Assistant Professor H. Douglas Laycock is Goetz reviewed the book in 45 University of Vice-President of the Chicago Council of Law­ Chicago Law Review 483. Goetz comments, for 1977-1979. yers "Meltzer has provided us with another fine in­ He has served as to the Committee . . . Reporter structional tool. In my judgment, no labor on Motion Practice of the Illinois Con­ Judicial law teacher could go wrong adopting this book." ference, participating in seminars for Illinois Professor Meltzer lectured at Arden House circuit and appellate judges in September, 1977, August 1 on the "Legal Framework for Labor and for Illinois in associate judges March, 1978. Arbitration" in a seminar for new labor arbi­ On October 25, he participated in a public trators, sponsored by the ABA's Labor Relations forum on affirmative action and constitutional Committee, the American Arbitration Associa­ rights, in Park Forest, Illinois, sponsored by the tion, and the Federal Mediation and Arbitra­ Lincolnway Section of the National Council of tion Service. Jewish Women. Dean Norval Morris, Julius Kreeger Professor Edward H. Glen H. Levi, Lloyd Distinguished of Law and Criminology, received an honorary Service Professor, was awarded the third an­ LL.D. degree from Villanova University May nual Louis Dembitz Brandeis Medal for dis­ 19. His citation reads: tinguished legal services, by Brandeis University "Scholar, lawyer, educator, advisor to presi­ on 7 in York June New City. The first two re­ dents and prisoners, he came to us from the An­ cipients of the award were Leon Jaworski and tipodes to set the established world of criminol­ Elliott L. Richardson. ogy upside down, through his innovative and Mr. Levi' received the Citation of Merit imaginative views of crime and punishment. He Award for 1977-78 at the annual luncheon meet­ leads a great school of law Wisely and by his of the Yale Law School Alumni ing Association, writing and generous participation at every in October of 1977. He holds a J.S.D. degree level of the criminal justice system has helped from Yale in addition to Ph.B. and J.D. degrees make that system more effective, more just and from Chicago. more compassionate."

Julian H. Levi, Professor of Urban Studies in Associate Professor Gary H. Palm is the sub­ the Division of the Social Sciences and Lec-· ject of a profile in the Fourth Biennial Report turer in Law, is Visiting Professor this fall at 1975-1976 published by the Council on Legal Bastings College of the Law, University of Cal­ Education for Professional Responsibility, Inc. ifornia, in San Francisco. Mr. Levi is Executive Mr. Palm has been director of the Mandel Legal the Director of South East Chicago Commis­ Aid Clinic since 1970. He and the Clinic are sion. among ten people and programs featured in the report. Professor Jo Desha Lucas lectured July 19-21 at Emory University in Atlanta, Georgia, at a Susan S. Raup joined the administrative staff course on federal practice taught jointly with in June as Director of Alumni Activities, as­ Judge Sidney O. Smith, Jr., as part of the Emory suming Susan C. Haddad's role with publica-

43 tions and alumni relations. She has had exper­ Association of Law Libraries for a second three­ ience with publications, public relations, year term, 1977-1980. He was the official IALL graduate admissions, and placement, as admin­ representative at the Council Meeting of the istrative assistant at the Institute of Optics, International Federation of Library Associations University of Rochester, from 1965 to 1978, and and Institutions, held August 26-September 3 at the Department of Oceanography at the in Strbske Pleso, Czechoslovakia. Johns Hopkins University from 1957 to 1965. Mrs. holds an A.B. from Mount Raup Holyoke Professor James B. White delivered the annual College and pursued graduate study at Harvard. John R. Coen lecture at the University of Colo­ She has been appointed to serve on the Board rado April 14, on "The Incoherence of the of Directors of the Illinois Institute for Contin­ Criminal Law." He was a member of the Colo­ Education. uing Legal rado law faculty from 1967 until 1975. Mr. White spoke on "Argument in the Iliad" Professor Antonin Scalia appeared on the na­ at the Modern Language Association annual tional public television program "The Advo­ meeting in December 1977. cates" in a debate on tuition tax credits. He is on the Board of Editors of a new pub­ lication, Regulation, to which he regularly con­ Hans Zeisel, Professor Emeritus of Law and tributes brief unsigned items. Sociology, spoke at the Special National Con­ ference on Plea Bargaining, sponsored by the Professor Emeritus Malcolm P. Sharp cele­ National Institute of Law Enforcement and brated his 81st birthday on November 20. He Criminal Justice of LEAA, held at French Lick, spoke to the Chicago Loop Luncheon alumni Indiana, June 15-17. He was one of seven contributors to an inter­ group on "Jurisprudence, Some Recollections "The Fathers of Advertis­ and Expectations" on October 25 of last year. view film, Founding ing Research," put out by the Advertising Re­ Adolf Sprudzs, Foreign Law Librarian and search Foundation. Among the other contrib­ Lecturer in Legal Bibliography, was re-elected utors were George Gallup, Frank Stanton, and to the Board of Directors of the International Ernest Dichter.

44 Publications of the Faculty, 1977-1978

WALTER J. BLUM KENNETH W. DAM With Harry Kalven, Jr.: THE UNEASY CASE FOR' The American Fiscal Constitution, in Kewenig, PROGRESSIVE TAXATION (University of Chi­ ed., AMERICAN-GERMAN BICENTENNIAL SYM­ cago Press Midway Reprint, 1978). POSIUM ON CONSTITUTIONAL LAW 141 The Educational Benefits Trust as a Lesson in (Duncker & Humblot, 1978). Taxation, 56 TAXES 600 (1978). With George P. Shultz: ECONOMIC POLICY With Louis McClennen and Willard H. Ped­ BEYOND THE HEADLINES (W. W. Norton, rick: The Tax Expenditure Approach and 1978). Funeral Expenses, 7 TAX NOTES 327 (1978). With Willard H. Pedrick: The AILJ Reborn RICHARD A. EpSTEIN Again! Recycling the Reform, 56 TAXES 67 Crime and Tort: Old Wine in Old in ' Bottles, (1978). Barnett and Hagel, eds., ASSESSING THE CRIM­ INAL: RESTITUTION, RETRffiUTION, AND THE LEGAL PROCESS 231 Publishing RICHARD L. BOWLER (Ballinger Co., 1977). of Wes Wise, et al. v. Albert L. Analysis Lips­ Coordination of Worker's Compensation Bene­ comb, et al. No. PREVIEW (Docket 77-529). fits with Tort Damage Awards, 13 FORUM OF U.S. SUP. CT. CASES 3 (Apr. 24, 1978). 464 (1978). Review of Harvard Law Review Association: A The Limits of Medical Malpractice, 298 NEW UNIFORM SYSTEM OF CITATION (12th ed.), ENGL. J. MED. 1311 (1978). 44 U. CHI. L. REv. 695 (1977). Privacy, Property Rights, and Misrepresenta­ tions, 12 GA. L. REV. 455 (1978). GERHARD CASPER Products Liability: The Gathering Storm, 1 With Philip B. Kurland, eds.: THE SUPREME REGULATION 15 (Sept.-Oct., 1977). COURT REVIEW: 1977 (University of Chicago Products Liability: The Search for the Middle Press, 1978). Ground, 56 N. CAR. L. REV. 643 (1978). With Richard A. Posner: The Caseload of the The Next Generation of Legal Scholarship? Supreme Court: 1975 and 1976 Terms, 1977 (review of Ackerman: PRIVATE PROPERTY AND SUPREME COURT REv. 87. THE CONSTITUTION), 30 STAN. L. REV. 635 The Committee System of the United States (1978). Congress, 26 AM. J. COMPo L. 359 (1978) (Supp ). WALTER HELLERSTEIN Disclosure of Intelligence Budgets, 23 U. CHI. With Jerome R. Hellerstein: STATE AND LOCAL L. S. REC. 19 (Fall, 1977). TAXATION, CASES AND MATERIALS (4th ed., West Publishing Co., 1978). State Taxation and the Supreme Court: To­ RONALD H. COASE ward a More Unified Approach to Constitu­ Economics and Biology: A Comment, 68 AM. tional Adjudication?, 75 MICH. L. REV. 1426 ECON. REv. 244 (1978). ( 1977). Economics and Contiguous Disciplines, re-. printed in 23 U. CHI. L. S. REc. at 23 (Fall, GARETH H. JONES 1977). Review of Bryson: THE EQUITY SIDE OF THE EXCHEQUER, 35 CAMBRIDGE L. J. 340 (1976). Reviews of Chase and Krislov: BIOGRAPHICAL DAVID P. CURRIE DICTIONARY OF THE FEDERAL JUDICIARY; Congress, the Court, and Water Pollution, 1977 Shetreet: JUDGES ON TRIAL: A STUDY OF THE SUPREME COURT REV. 39. ApPOINTMENT AND ACCOUNTABILITY OF THE Res Judicata: The Neglected Defense, 45 U. ENGLISH JUDICIARY; and White: THE AMER­ CHI. L. REV. 317 (1978). ICAN JUDICIAL TRADITION: PROFILES OF LEAD­ Thoughts on Directed Verdicts and Summary ING AMERICAN JUDGES, 36 CAMBRIDGE L. J. Judgments, 45 U. CHI. L. REV. 72 (1977). 384 (1977).

45 Reviews of Dunne: HUGO BLACK AND THE Justice Robert H. Jackson-Impact on Civil JUnICIAL REVOLUTION; Countryman: THE Rights and Civil Liberties, 1977 ILL. L. F. DOUGLAS OPINIONS; and Ben-Veniste and 55l. Frampton : STONEWALL: THE REAL STORY OF Leviathan and Education, in Thompson and THE WATERGATE PROSECUTION, 37 CAMBRIDGE Wimpelberg, eds., DILEMMAS IN SCHOOL L. J. 186 (1978). FINANCE 7 (Midwest Administration Center, in 23 U. CHI. L. S. REc. STANLEY A. KAPLAN 1978); preprinted 10 (Fall, 1977). Review of Eisenberg: THE STRUcruRE OF THE Self-Portrait of a Jurist-Without Warts (re­ CORPORATION, 44 U. CHI. L. REV. 895 (1977). view of Warren: THE Mmroras OF CHIEF STANLEY N. KATZ JUSTICE EARL WARREN), 87 YALE L. J. 225 ( 1977). Republicanism and the Law of Inheritance in the American Revolutionary Era, 76 MICH. WILLIAM M. LANDES L. REV. 1 (1977). With Richard A. Posner: Altruism in Law and SPENCER L. KIMBALL Economics, 68 AM. ECON. REV. 417 (1978). With Werner Pfennigstorf, eds.: LEGAL SER­ An Economic Study of u.s. Aircraft Hijacking, VICE PLANS: ApPROACHES TO REGULATION 1961-1976, 21 L. & ECON. 1 � J. (1978). Bar Foundation, (American 1977). With Richard A. Posner: Salvors, Finders, With Werner Pfennigstorf: A Typology of Good Samaritans, and Other Rescuers: An Legal Service Plans, Regulation of Legal Economic Study of Law and Altruism, 7 J. Service Plans, & Employee Legal Service LEGAL STUDIES 83 (1978). Plans: between Federal and State Conflicts With Richard A. Posner: Should We Tax in Kimball and Regulation, Pfennigstorf, Virgin Materials to Finance Waste Dis­ eds., LEGAL SERVICE PLANS: ApPROACHES TO posal?, 9 WASTE AGE 12 (1978). REGULATION Ch. 1, 2, & 3 (American Bar Foundation, 1977). JOHN H. LANGBEIN With Werner Pfennigstorf: Regulation of Legal TORTURE AND THE LAW OF PROOF: EUROPE AND Service Plans, 1977 A. B. F. RES. J. 357. ENGLAND IN THE ANCIEN REGIME (University of EDMUND W. KITCH Chicago Press, 1977). WRITING LAW EXAMINATIONS Publish­ Can We Buy Our Way Out of Harmful (West Regulation?, in Warren and Schwartz, eds., ing Co., 1978). DEREGULATING AMERICAN INDUSTRY 51 (D. The Criminal Trial before the Lawyers, 45 U. C. Heath & Co., 1977). CHI. L. REV. 263 (1978). The Nature and Function of the Patent System, With Lloyd L. Weinreb: Continental Criminal 20 J. L. & ECON. 265 (1977). Procedure: "Myth" and Reality, 87 YALE L.J. 1549 (1978). ANTHONY T. KRONMAN Applications of Modern Portfolio Theory: Law, Mistake, Disclosure, Information and the Law Theory and Practice, in CONFERENCE PRO­ of Contracts, 7 J. LEGAL STUDIES 1 (1978). CEEDINGS, Investment Counsel Association Specific Performance, 45 U. CHI. L. REV. 351 of America (1978). ( 1978). The Teaching of Jurisprudence in American H. DOUGLAS LAYCOCK Law Schools, 23 U. CHI. L. S. REC. 3 (Fall, Civil Rights and Civil Liberties, 54 CHI.-KENT 1977). L. REV. 390 (1977). With Thomas Jackson: Voidable Preferences Federal Interference with State Prosecutions: and Protection of the Expectation Interest, The Need for Prospective Relief, 1977 SU­ 60 MINN. L. REV. 971 (1976). PREME COURT REV. 193. Statement: AWARDING OF ATTORNEYS' FEES: PHILIP B. KURLAND HEARINGS BEFORE THE SUBCOMMITTEE ON WATERGATE AND THE CONSTITUTION (Univer­ COURTS, CIVIL LmERTIES, AND THE ADMINIS­ of sity Chicago Press, 1978). TRATION OF JUSTICE OF THE HOUSE COM­ With Gerhard Casper, eds.: THE SUPREME MITTEE ON THE JUDICIARY, 94th Cong., 1st COURT REVIEW: 1977 (University of Chicago Sess.276 (1975) (U.S. Government Printing Press, 1978). Office, 1977).

46 DESHA LUCAS Prison A Out

JO . Sentencing: Way of Anarchy, With James W. Moore and Nola McLane: Los Angeles Times, Jan. 5, 1978, at Pt. II, 7. MOORE'S FEDERAL PRACTICE Ch. 18, 19, & 20 Review of Frankel and Naftalis: THE GRAND (Matthew Bender & Co., 1977). JURY: AN INSTITUTION ON TRIAL, 87 YALE L. 1977 Supplement to MOORE'S FEDERAL PRACTICE J. 680 (1978). (Matthew Bender & Co., 1977). Review of Weinreb: DENIAL OF JUSTICE: CRIM­ INAL PROCESS IN THE UNITED STATES, 91 BERNARD D. MELTZER HARVARD L. REv. 1367 (1978). LABOR LAW: CASES, MATERIALS AND PROBLEMS Foreword to Wolfgang, Figlio, and Thorn­ (2nd ed., Little, Brown, 1977). berry, EVALUATING CRIMINOLOGY (Elsevier­ North at ix. NORVAL MORRIS Holland Publishing Co., 1978)

EL FUTURO DE LAS ESTUDIOS SOBRE PRISIONES, RICHARD A. POSNER CRIMEN Y JUSTICIA (Siglo Veintiuno, 1978) Gratuitous Promises in Economics and Law, 6 [Spanish edition of THE FUTURE OF IM­ J. LEGAL STUDIES 411 (1977). PRISONMENT (Studies in Crime and Justice Series) (University of Chicago Press, 1974), The Rule of Reason and the Economic Ap­ Nicholas Grab, translator]. proach: Reflections on the Sylvania Decision, 45 U. CHI. L. REV. 1 With Gordon Hawkins: Attica Revisited: The (1977). Prospect tor Prison Reform, in Bonnie, ed., The Right of Privacy, 12 GA. L. REv. 393 PSYCHIATRISTS AND THE LEGAL PROCESS: DI­ (1978. ) AGNOSIS AND DEBATE 144 (Insight Communi­ An Economic Theory of Privacy, 2 REGULATION cations, Inc., 1977). 19 (May-June, 1978). Conceptual Overview and Commentary on the With William M. Landes: Altruism in Law Movement toward Determinacy, in National and Economics, 68 AM. ECON. REV. 417 Institute of Law Enforcement & Criminal (1978 ). Justice, LEAA, Report, DETERMINATE SEN­ With William M. Landes: Salvors, Finders, TENCING: REFORM OR REGRESSION? 1 (U.S. Good Samaritans, and Other Rescuers: An Government Printing Office, 1978). Economic Study of Altruism, 7 J. LEGAL Mental Health for Prisoners-the Magnitude STUDIES 83 (1978). of the Problem & The Difficult to Manage With Fischer Black and Merton Miller: An Inmate-Mad or Mean?, in MENTAL HEALTH Approach to the Regulation of Bank Hold­ FOR THE CONVICTED OFFENDER: PATIENT AND ing Companies, 51 J. Bus. 379 (1978). & 163 Carolina of PRISONER 9 (North Dept. With Gerhard Casper: The Caseload of the Correction, 1977). Supreme Court: 1975 and 1976 Terms, 1977 Punishment and Prisons, in Cederblom and SUPREME COURT REV. 87. AND PuNISHMENT 157 Blizek, eds., JUSTICE With Andrew M. Rosenfield: Impossibility and (Ballinger Publishing Co., 1977). Related Doctrines in Contract Law: An Punishment, Desert and Rehabilitation, in Economic Analysis, 6 J. LEGAL STUDIES 83 UNDER U.S. DEPART­ EQUAL JUSTICE LAW: (1977) . MENT OF JUSTICE BICENTENNIAL LECTURE SERIES 137 (U.S. Government Printing Of­ ANTONIN SCALIA fice, 1976). Guadalajara! Regulation by Munificence, 2 Who Should Go to Prison, in Sales, ed., PER­ REGULATION 23 (Mar.-Apr., 1978). AND PSYCHOLOGY: THE SPECI'IVES IN LAW Two Wrongs Make a Right: The [udicializa­ CRIMINAL JUSTICE SYSTEM 151 (Plenum tion of Standardless Rulemaking, 1 REGULA­ Press, 1977). TION 38 (July-Aug., 1977). Sentencing and Pa-role, 51 AUSTRALIAN L. J. STATEMENT: To RENEW THE REORGANIZATION 523 (1977). AUTHORITY: HEARINGS BEFORE THE SENATE Towards Principled Sentencing, 37 MD. L. COMMITTEE ON GOVERNMENTAL AFFAms, REV. 267 (1977). 95th Cong., 1st Sess. 39 (1977) (U.S. Gov­ ernment The Abandonment of "The Noble Lie", re­ Printing Office, 1977). printed in Killinger and Cromwell, eds., Statement: PROVIDING REORGANIZATION Au­ INTRODUCTION TO CORRECTIONS: SELECTED THORITY TO THE PRESIDENT: HEARINGS BEFORE READINGS, at 118 (West Publishing Co., THE SUBCOMMITTEE ON LEGISLATION AND 1978). NATIONAL SECURITY OF THE HOUSE COM-

47 MITTEE ON GoVERNMENT OPERATIONS, 95th JAMES B. WHITE Cong., 1st Sess. 56 Govern­ (1977) (U.S. TALK TO ENTERING STUDENTS ( Occasional ment Printing Office, 1977). Paper No. 13, University of Chicago Law Statement: TUITION TAX RELIEF BILLS, PART School, 1977). 1: HEARINGS BEFORE THE SUBCOMMITTEE ON TAXATION AND DEBT MANAGEMENT OF THE HANS ZEISEL SENATE COMMITTEE ON 95th FINANCE, Cong., THE DEATH SENTENCE AND THE INSANITY DE­ 2nd Sess. 284 Government (1978) (U.S. FENSE (Occasional Paper No. 14, University Printing Office, 1978) . Also reprinted as of Chicago Law School, 1978). TESTIMONY ON THE CONSTITUTIONALITY OF Difficulties in Indicator Construction: Notes TUI'nON TAX CREDITS, Reprint no. 84 (Amer­ and Queries, in Elkana, Lederberg, Merton, ican Enterprise Institute, 1978). Thackray, and Zuckerman, eds., TOWARD A METRIC OF SCIENCE: THE ADVENT OF SCIENCE ADOLF SPRUDZS INDICATORS 253 (Wiley and Sons, 1978). With I. Igor Kavass: UST CUMULATIVE INDEX With Shari S. Diamond: The Effect of Per­ CUMULATIVE INDEX TO 1971-1975; UNITED emptory Challenges on Jury and Verdict: An STATES TREATIES AND OTHER INTERNATIONAL Experiment in a Federal District Court, 30 AGREEMENTS 1971-1975 (William S. Rein & STAN. L. REV. 491 (1978). Co., 1977). In Memoriam: Paul Felix Lazarsfeld, 1901- Basic U.S. Sources for Current Research in In­ 1976, 40 PuB. OPINION Q. 556 (1977). ternational Law: An Elementary Vade­ With Shari S. Diamond: Search for Sentencing Mecum, 5 INT'L L. LmRARIEs 347 J. (1977). Equity: Sentence Review in Massachusetts of Review Leistner: ABBREVIATIONS' GUIDE TO and Connecticut, 1977 A. B. F. RES. J. 881. FRENCH FORMS IN AND ADMINISTRA­ JUSTICE With Shari S. Diamond: Review of Thibaut TION and ARBEITSHILFEN ZUM FRANZOSISCHEN and Walker: PROCEDURAL JUSTICE, 1977 4 INT'L L. LmRARIEs 65 RECHT, J. (1976). DUKE L. REV. 1289. Review of Ginsburgs and Kim: CALENDAR OF DIPLOMATIC AFFAms, DEMOCRATIC PEOPLE'S FRANKLIN E. ZIMRING REPUBLIC OF 1945 TO 5 INT'L KOREA, 1975, CONFRONTING YOUTH CRIME: REPORT OF THE L. LIBRARIES 255 J. (197�). TWENTIETH CENTURY FUND TASK FORCE ON Review of Lansky: HANDBUCH DER BIBLIO­ SENTENCING POLICY TOWARD YOUNG OFFEND­ GRAPHIEN ZUM RECHT DER ENTWICKLUNGS­ ERS 27 (Holmes and Meier, 1978). 5 INT'L L. LmRARIES 254 LANDER, J. (1977). Determinants of the Death Rate from Rob­ Review of MITTEILUNGEN DER ARBEITSGEMEIN­ bery: A Detroit Time Study, 6 J. LEGAL SCHAFT FUR JURISTISCHES BIBLIOTHEKS- UND STUDIES 317 (1977). DOKUMENTATIONSWESEN, 1971-1975, 4 INT'L Policy Experiments in General Deterrence: L. LIBRARIES 66 J. (1976). 1970-1975, in National Research Council, Review of Leistner: UBER DIE VEROFFENTLICH­ DETERRENCE AND INCAPACITATION: ESTIMAT­ UNGSPRAXIS OBERSTER UND HOHERER GERICHT;E ING THE EFFECTS OF CRIMINAL SANCTIONS ON IN 26 AM. COMPo L. WESTEUROPA, J. 132 CRIME RATES 140 (National Academy of (1978 ). Sciences, 1977). The 'Serious Juvenile Offender: Notes on an GEOFFREY R. STONE Unknown Quantity: in THE SERIOUS JUVENll.E GROUP DEFAMATION (Occasional Paper No. 15, OFFENDER: PROCEEDINGS OF A NATIONAL University of Chicago Law School, 1978). SYMPOSIUM HELD IN MINNEAPOLIS, MINN., Analysis of Rufus Mincey V. State of Arizona ON SEPT. 19 AND 20, 1977, at 15 (U.S. Gov­ (Docket No. 77-5353), PREVIEW OF U.S. SUP. ernment Printing Office, 1978). CT. CASES 3 (Mar. 20, 1978). Comment, 7 HASTINGS CENTER REP. 48 (1977). The Miranda Doctrine in the Burger Court, Crime in the Streets, Chicago Sun-Times, N0- 1977 SUPREME COURT REV. 99. vember 27, 1977.

48

The Law School Record NON-PROFIT ORG. U.S. POSTAGE PAID LAW THE SCHOOL . THE UNIVERSITY OF CHICAGO CHICAGO, ILL. STREET . ILLINOIS 60637 EAST 1111 60th CHICAGO, PERMIT NO. 7590

Volume Winter24 1978

CasperGerhard Becomes Dean 3 EmergingThe Constitution of the European Community 5 CasperGerhard EconomyPolitical The of Innovation in Drugs and the Role of the Food and Drug Administration 13 KitchW. Edmund

Proposed The Federal Criminal Code: Way A out of Anarchy in Prison Sentencing 20 MorrisNorval

J The RebornAIL Again! Recycling the Reform 23 J. Walter Blum and Willard H. Pedrick Law, the Life of the Law, and Society: PosthumousA Book by Karl Llewellyn 27 CasperGerhard WilfredErnst Puttkammer (1891-1978) 29 J. Walter Blum MattickW. Hans (1920-1978) 32 MorrisNorval

W. BarberAnn (1911-1978) 35 BadgerRichard 1.

the LawFrom School ...... 37 ofPublications the Faculty, 1977-1978 45