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Case Law Substitutes for Constitutional VOLUME 4 Contents 2 Editor's Column / On the Cover 3 Faculty Abroad 4 Constitutional Change: Reflections on the American Experience / Walter Dellinger 10 American German Tax Law Symposium in Heidelberg 11 A Constitutional Review of the American Income Tax / William Van Alstyne 19 Case Law Substitutes for Constitutional Structures in Computing Taxable Income in the United States / Richard Schmalbeck 25 DukeinDenmark 27 Faculty Travellers: Summer 1985 30 Book Review / Ethnic Groups in Conflict by Donald 1. Horowitz 35 International Relations 36 The Program for International Students 37 The Special Comparative and International Legal Studies Program 38 Commonwealth Countries 44 Europe DEAN EDITOR SENIOR REPORTERS STAFF Paul D. Carrington Joyce Rutledge Suzanne Bryant Anne Wilkinson Jennifer Carson Alice Higdon PhylliS Redic Julie Woessner Lisa Grogan Julie O'Brien Susan Gwin Susan Weaver NUMBERl 50 Book Review / Claire Germain's Guide to French Legal Materials by Wallace Baker 54 Far East 67 Book Review / Bureaucratic Reform in Nineteenth-Century China by Jonathan Ocko 68 Africa and Middle East 73 South and CentralAmerica 75 The Docket 76 Alumnus Profile 77 Specially Noted 80 Agenda} Law Alumni Week~ September 26-27, 1986 Duke Law Magazine is published under the auspices of the Office of the Dean, Duke Universit)\ School of Law, Durham, North Carolina 27706 © Duke University 1986 BUSINESS MANAGER lYPOGRAPHY/PRODUCTIONIDESIGN COVER PHOTOGRAPH Mary Jane Flowers Marathon Typography Service Chip Henderson DUKE LAW MAGAZINE / 2 Editors~ Column The Law School at Duke has Because the Law School is relatively Public Law conducted by Percy from its inception served as a small and maintains a close sense of Luney in association with Japanese national institution. In recent years, community, there is a great deal of legal scholars. Several members of it has grown to be an important interaction between its international the Duke Law faculty have taught in international institution as well. The students and its American students. China, including three in 1985; contours of this development are Thus, the School affords a superior another has taught in India, yet more generally described in this opportunity for Asian students and another in Singapore. In addition, in issue. This growth is especially students with Asian interests to share 1985-86, five Duke Law students are notable with respect to the School's a common intellectual enterprise. In studying in China for the year under ties to the continent of Asia. recent years, four professors from the auspices of the School. These Relative to its size, Duke now Asian universities have been in resi­ developments are also reported in enrolls more students from Asia dence at Duke for all or part of the this issue. Instruction in Chinese than any American law school. Duke academic year: one from China, one and Japanese languages is available has developed a close relation with from Korea, and two from Japan. at Duke. a number of institutions in the By reason of the interests and The Duke China Law Fund is a People's Republic of China and is activities of the faculty, the curric­ loose association of scholars and playing a significant role in helping ulum of the Law School has evolved practicing lawyers interested in the that nation redevelop its legal system in recent years to include a number development of the legal system and and legal profession. Ten students of offerings of special interest to the legal profession of China. It from China are enrolled in the persons having an interest in legal enlists the support of American law School in 1985-86; all but one of the developments in Asia. Donald firms, international businesses, foun­ ten is studying for theJD. In addi­ Horowitz, a leading expert on ethnic dations, and government agencies tion, there are five students from the conflict, regularly offers a seminar having interests in China. It also Republic of Korea (3 J.o.'s and 2 on the law of ethnic group conflict; sponsors an annual study trip to U~.M:s), three from Taiwan (2 SJ.o.'s a significant portion of the material China to examine the interaction of and 1 LL.M.), three from Japan (2 studied is Asian. For the last six law and economic development in LL.M.'s and 1 M.L.S.), one from India years, Jonathan Ocko has offered a that country, and to interview Chi­ 0.0.), and one from the Phillipines course in the Chinese Legal Tradi­ nese applicants to Duke. 0.0.). Malaysia was also represented tion. Recently, the School has also in the student body in 1984-85. been offering a course in Japanese On the Cover The cover depicts a hand-woven African tapestry recently given to the School by Ralph Lamberson, LL.B. '42. Now hanging in redecorated Room 214, the weaving was designed by Afro Studio and executed by Eliza­ beth '[<;holo. It comes from Phuthadit­ jhaba in Qwa Qwa. Lamberson, formerly of New York City and now living in Williams­ burg, Virginia, has given the Law School a number of works of fine art in the past several years. A print by Nissan Engel adorns the Faculty Lounge; an Engel poster hangs in Room 204 and two Engel watercolors hang in Room 21IA. Room 213 con­ tains two silkscreens of Mayan figures from Lamberson, as well as a block print on the Pegasus theme. DUKE lAW MAGAZINE / 4 Constitutional Change: Reflections on the American Experience" by Walter Dellingert alter Dellinger has tral'elled widely during the past year lecturing on a mn'ely of constitutional issues. Last fall, W he delil'ered addresses at the Brookings Institute in Washington, at the National Humanities Center, and at the annual meeting of the Association qf American Law Schools. In the spring he gal 'e a series of fifteen lectures on American constitutional law at tbe Catholic Unillersily in LeulIen, Belgium. While in Europe, be also gal'e talks at a number of leading unil'ersities. He lectured in Ita~v at the Unil'er­ sity ofFlorence and at the UnilJersity ofSienna. He gam two lectures at the University ofCopenhagen, Denmark, and delilJered an address sponsored by the the Gernzan­ American Lawyers Association in Nuremburg, Germany !bis December Professor Dellinger was irll'ited to address a convocation held in Rio de janeiro, Brazil, on the el'e ofthe drafting ofa new democratic constitu­ tion for Brazil, which has turned to cil..'ilian gOl'ern­ ment after twenty-one years of military rule. !be conference was sponsored by the Instituto dos Advogados Brasileiros and the American Bar Associa­ tion. Other American speakers included Harmrd Law Professor Paul Bator, former Attorney General Ben­ Walter Dellinger jamin CilJiletti,jederal court of appealsjudge Abner Mikva, and Michigan Law Professor (andformer Solicitor General) Wade McCree. Professor Dellinger delil 'ered his address to tbe ment article-was drafted, and then to look even more conference's final banquet on December 12, 1985- briskly at the historical context in which the Excerpts from his address follow: Constitution's twenty-six amendments have been Dr. [Sergio] Ferraz [Presidente do Instituto dos adopted. With this as background, I will address a few Advogados Brasileiros] and Mr. [William] Falsgraf specific questions concerning the law and policy of [President of the American Bar Association], ladies and constitutional change that are currently the subject of gentlemen: lively dispute in America. I am honored to have been asked to reflect with you The place to begin is with that extraordinary experi­ at this propitious moment in the constitutional history ence in fundamental constitutional change that took of Brazil about the American experience with constitu­ place in Philadelphia in the summer of 1787. The states tional change. I will talk this evening about a mystery for whom a constitution was being drafted were hardly that reverberates through two centuries: how does a then a nation. The coming together of these colonies a constitutional system of government, itself born of dozen years earlier had been more difficult than we can revolution, properly provide for its own revision easily now imagine. From the vantage point of 1776, the -provide literally for its own re-constitution? To year of the American Revolution, the Constitution that explore this question, I plan first to consider briefly the emerged a dozen years later looms as an extraordinary political and intellectual assumptions against which creation. None of the Revolutionary leaders contem­ Article V of the United States Constitution-the amend- plated erecting over America a truly national govern- VOL. 4, NO. 1 / 5 ment with the power to operate directly on individuals. warrant tumultuous assemblages of citizens, without At that earlier time-I77S-John Adams had written legal authority; to dictate to the government not only its home to Abigale of "[f]ifty gentlemen meeting together current policy, but amendments of the fundamental law. all strangers ... not acquainted with each other's The amendment article can thus be seen as part of the language, ideas, views designs. They are therefore conservative thrust of much of the work of the jealous of each otl1er-fearful, timid, skittish." While to Convention. The inclusion of a specific amendment us they stand at the beginning, initiating a history, Gary procedure emphasized that changes of fundamental Wills notes that "they saw themselves as defenders of a law were henceforth to be made only in accordance history accomplished; taking risks that might end, with modes sanctioned by the docLll~1ent itself. The rather than launch, a noble experiment." They came as amendment article thus served to confine the right to representatives of legislative assemblies a century old. revolution within expressly preso-ibed legal procedures. The colonies were more trading rivals than partners.
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