Malcolm P. Sharp

The Classical American Doctrine of "The Separation of Powers"

National attention on issues of public health preparedness necessarily brings into sharp focus the question of how to assure adequate, community-wide health care financing for preventive, acute care, and long-term medical care responses to public health threats. In the U.S., public and private health insurance represents the principal means by which medical care is financed. Beyond the threshold challenge of the many persons without any, or a stable form of, coverage lie challenges related to the structure and characteristics of health insurance itself, particularly the commercial industry and its newly emerging market of consumer-driven health plans. States vary significantly in how they approach the regulation of insurance and in their willingness to support various types of insurance markets. This variation is attributable to the size and robustness of the insurance market, the political environment, and regulatory tradition and custom. Reconciling health insurance markets with public health-related health care financing needs arising from public health threats should be viewed as a major dimension of national health reform. NOT TO BE REPRINTED WITHOUT THE PERMISSION OF THE AMERICAN SOCIETY OF LAW, MEDICINE & ETHICS

The Conservative Fellow Traveler

T IS good of you to permit me to talk under this ambiguous title. Since the title is plainly an egotistical one, I may as well be a little personal about it for a moment. Since 1950, and particularly from 1950 until 1957, I have been in and identified with three so-called left-wing cases: George Anastaplos bar admission case; the Rosenberg and Sobell case; and the proceeding by the Attorney General to list the National Lawyers Guild, in which, for a change, I was on the winning side. I am still concerned about George Anastaplo and in efforts to secure the parole of Morton Sobell. I may have occasion to refer to these cases in the course of our discussion, but in the mean time, I want to indicate that I am regarded by some as the last of the fellow travelers, in the sense of those who were so misguided as to use their energies in behalf of the interests of the Communist Party. In a second sense, I am also a fellow traveler. My economic views, such as they are, are conservative. I have made it a point not to know whether my friends on the left were Communists or not, but I have been able to recognize them as central planners and I have had a fine time arguing with them about central planning. You will find my most reactionary statements about my economics in speeches made as President of the National Lawyers Guild, which were published in the Lawyers Guild Review. In spite of this devotion to what I took to be their general principles, my conservative liberal economist friends at the University of Chicago, though doubtless appreciating my good points, have quietly complained that I was somewhat muddle-headed in my economics. For this reason, I suppose I should be called at the most a fellow traveler of theirs. In a third more fundamental sense, I am a perennial fellow traveler. You really need this warning in preparation for listening to my talk. The only vices I do not have are the gambling instinct and the instinct of the partisan. In hiking with Mr. Wilber Katz in the Rockies I made a famous observation, which you may have heard. Recognizing that we occasionally got lost and did not end up at our destination, I said that I rejoice in a flexible sense of objectives. I suppose this has something to do with my nonpartisan and fellow traveler instincts. When your spokesman wrote me, I had been reading about the Vatican

Death against Life

MALCOLM SHAPP* THE psychological factors in the chain reaction which threatens the world are more mysterious than atomic fission and more dangerous than cancer. They would repay unlimited study if anyone could be found to study them. Psychologists, anthropologists, diplomats, and military men are indeed engaged in examining these psychological phenomena. The military men are perhaps the only ones who deal with them objectively. As participation in a conference of psychoanalysts and political scientists would indicate, most of us today will use such scraps of knowledge as we possess in defense of some hunch or prejudice that goes back to the earliest days of infancy or before., Most of us brought up in this country believe in our case against the Russians. With good conscience and a show of reason, we argue that if atomic energy is to be used to destroy people and their works, it had better be the Russians and their works. The Russians and their friends, in obscure and varying combinations, have been promoting revolutions and rebellions in Greece, Iran, and China. Acting through determined minorities, they have taken over practical control in Hungary and Rumania. In Bulgaria, whatever support the Communists may have won was so insecure that they have been driven to control the opposition by persecution and force. While they started with some claim to a majority government in Poland, their treatment of the principal opposition leader makes it impossible to know whether a willing majority now backs a Polish government or not. The influence of a Communist-controlled police force apparently contributed to the creation of a parliamentary majority in Czechoslovakia; and again no one will know from here on whether or not there is willing majority support for any Czechoslovakian Government in power. When Mr. Truman speaks about a threat to democracy and the values * Professor of Law, University of Chicago Law School.

Notes on Contract Problems and Comparative Law

UF OUR major problems stand first in the list of contract problems ready for study, and perhaps ultimately action, in the light of comparative law. These are the problems of consideration; mistake and impossibility; the power of a possessor to transfer title to tangible things or contract rights; and specific performance. Many other questions, of course, suggest themselves, such as the defenses of a surety, the protection of a mortgagor, the effect of non-disclosure on a fiduciarys transactions, and the development of contractual rules in the field occupied by technical rules of conveyancing.