Digital Commons Network^™

Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law Review

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …

The Trouble With Corporate Conscience, James D. Nelson

Vanderbilt Law Review

Accomplished corporate law scholars claim that modern businesses need an infusion of morality. Disappointed by conventional regulatory responses to recurring corporate scandal, these scholars argue that corporate conscience provides a more fruitful path to systemic economic reform. In Burwell v. Hobby Lobby, which held that for-profit businesses can claim religious exemptions from general laws, the Supreme Court gave this notion of corporate conscience added momentum. Emboldened by the Court's embrace of business goals extending beyond shareholder profit, proponents of a moralized marketplace now celebrate corporate conscience as an idea whose time has come. This Essay criticizes the leading arguments for …

Respect My Authority! South Park's Expression Of Legal Ideology And Contribution To Legal Culture, Kimberlianne Podlas

Vanderbilt Journal of Entertainment & Technology Law

This Article recognizes that television programs outside of the law genre can engage in legal discourse: to wit, South Park. South Park has been called one of the most profane programs on television, as well as one of the most ideological. Indeed, through sophisticated, no-holds-barred satire, South Park contemplates a number of American culture's most complex and contentious legal issues. This Article systematically analyzes the legal ideologies conveyed by South Park, combining an interpretive ethnographic analysis with quantitative content analyses. Ultimately, these examinations reveal that South Park communicates a libertarian ideology of law. In doing so, however, it does not …

The Cloudy Crystal Ball: Genetics, Child Abuse, And The Perils Of Predicting Behavior, Robert D. Stone

Vanderbilt Law Review

In the cinematic world of Minority Report, mankind stands on the brink of a society without murder. Police can see the future, predicting murders and arresting perpetrators before they act. This utopian system is the ultimate evolution in preventative policing because it offers perfect prediction; it does not show what people intend to do, only what they will do. Society accepts the incarceration of pre-murderers, people who have committed no crimes, because there is no such thing as the "wrongfully accused.' Is the ability to predict behavior only science fiction, or can a combination of genetic and environmental factors actually …

An International "Truth Commission": Utilizing Restorative Justice As An Alternative To Retribution, Carrie J. Niebur Eisnaugle

Vanderbilt Journal of Transnational Law

A restorative justice paradigm emphasizes healing relationships between offenders, their victims, and the community in which the offense took place. It rejects retribution as a response to crime, focusing instead on the needs of all parties involved. This Note discusses the necessity for, and possible benefits of, using restorative justice principles when responding to international crimes and conflicts. Prosecution, war, and other violent means remain the most common responses to crime and conflict today. Such retributive reactions often lead to further violence rather than healing and peace. Using restorative justice principles to address crime and conflict, as was done in …

Regulating Federal Prosecutors' Ethics, Bruce A. Green, Fred C. Zacharias

Vanderbilt Law Review

To what extent should federal prosecutors be regulated by states, by federal courts, or by the U.S. Department of Justice ("DOJ) as a matter of self-regulation? This Article concludes that, subject to congressional oversight, federal courts should have the ultimate authority to regulate federal prosecutors. However, it also acknowledges the legitimacy of competing claims by the states and DOJ. Sometimes, federal courts should defer to state court regulation, given traditional state regulation of the practice of law and a host of practical considerations. At other times, federal prosecutors have compelling reasons to seek freedom from both state regulation and regulation …

Are Shaming Punishments Beautifully Retributive? Retributivism And The Implications For The Alternative Sanctions Debate, Dan Markel

Vanderbilt Law Review

In the last few years, scholars and policymakers in the area of criminal justice have focused an increasing amount of attention on two topics. The first is the retributivist theory of punishment ("retributivism");' the second is the development of alternative sanctions to the orthodoxy of incarcerating criminals in publicly managed prisons. This Article is about what connections may properly be drawn between what justifies punishment and how we actually go about punishing offenders.

A preliminary word on retributivism may be helpful. Retributivism is a theory about retribution, and retribution's features, or its definition, may be understood in either a weak …

Consolidating Democracy On A Troubled Continent: A Challenge For Lawyers In Africa, Okechukwu Oko

Vanderbilt Journal of Transnational Law

African countries during the post-colonial era have struggled to establish democratic governments, too frequently succumbing to authoritarian, usually military, rule. This instability, as nations swing from one regime to another, has hindered the economic growth and respect for civil rights that citizens had hoped would be the legacy of independence. Despite such abuses, both the elite and the masses in Africa recognize that democracy represents the best hope for future stability. In countries like Nigeria, citizens are demanding the replacement of corrupt, paternalistic military officers with democratic, civilian rule.

Even the election of civilian administrations, however, offers no guarantee that …

Making Society's Legal System Accessible To Society: The Lawyer's Role And Its Implications, L. Harold Levinson

Vanderbilt Law Review

During the past two decades the legal profession has been remarkably, even frantically active in examining and drafting standards of professional conduct. The American Bar Association (ABA) adopted the Code of Professional Responsibility in 1970. Most states adopted the Code with relatively minor variations during the 1970s. The ABA repealed the Code in 1983 and adopted, in its place, the Model Rules of Professional Conduct. By the beginning of 1988 one-half of the states had implemented the Model Rules, with significant variations from the ABA version in some of these states, while the remaining states either had rejected the Model …

Defending Miranda: A Reply To Professor Caplan, Welsh S. White

Vanderbilt Law Review

Professor Caplan yearns for the good old days "when the police enjoyed greater public confidence" and, in accordance with the tactics recommended in the police manuals, it was acceptable "for an investigator to talk sharply to the suspect or glare at him or sit too closely or withhold cigarettes, or, from the opposite vantage, to pretend to be a sympathetic friend or a concerned coreligionist."'Thus, Professor Caplan attacks the Miranda decision on the ground that "by introducing novel conceptions of the proper relationship between the suspect and authority," Miranda operates to subvert the principal function of the criminal process, the …

United States Research Of The Law Of The Communist-Ruled States Of Europe, Ivan Sipkov

Vanderbilt Journal of Transnational Law

The legal system of the Soviet Union, developed after the 1917 October Revolution, was introduced, with some variations, in several European, Asian, and Latin American states during the last years of World War II. These states have been characterized, both officially and unofficially, as "Soviet-type republics," "People's republics," "Socialist republics," and "Communist states." Their legal systems, although patterned after the Soviet Union legal system, developed in different directions. Today, the various legal systems of these republics are clearly distinguishable; however, one common feature is present: the states are ruled by one Communist party to the exclusion of other parties.

Youth Crime And Urban Policy: A View From The Inner City, Diana R. Gordon

Vanderbilt Law Review

One does not expect to be mesmerized by a book entitled Youth Crime and Urban Policy: A View from the Inner City. Yet this volume, compiled from the proceedings of a May 1980 conference sponsored by the American Enterprise Institute for Public Policy Research (AEI) proves to be a powerful testament to the plight of the dweller in America's crime-plagued inner-city neighborhoods. Because Robert Woodson has edited the comments of the conference's participants with a light hand, the book gives the reader the power of voices from the street-voices of people who are trying daily to stem the tide of …

The Decline Of The Rehabilitative Ideal: Penal Policy And Social Idea, Louis A. Jacobs

Vanderbilt Law Review

In his most recent contribution Professor Francis Allen suggests that the rehabilitative ideal can flourish only in a particular kind of society. He observes that today's American society lacks the nourishing characteristics that once fed that ideal; consequently, the ideal has withered. This argument is concisely and precisely constructed in The Decline of the Rehabilitative Ideal, a book derived from the 1979 Starrs Lectures on Jurisprudence at Yale Law School. Rather than describe the extent of the decline, Professor Allen focuses on the nexus raised in the book's subtitle--penal policy and social purpose. As social purpose evolved (perhaps "devolved"is more …

Deterrence, Death, And The Victims Of Crime: A Common Sense Approach, Frank G. Carrington

Vanderbilt Law Review

The concept of deterrence is one of the most important in the formulations of the victim advocate, primarily because of two essential premises that underlie the entire field of victim advocacy.The first, but not necessarily the most important, of these premises concerns the policy that favors assuaging the plight of persons after they have been victimized. This relief can be provided in a number of different ways: compensation to innocent victims from the states; restitution to victims as a condition of granting probation to the criminal; victim counselling; and victim/witness assistance programs.' The second premise of victim advocacy, namely,preventing victimization …

How Serious Is Serious Crime?, Albert J. Reiss, Jr.

Vanderbilt Law Review

This Article examines the information systems that are available to the American public. Part H of the Article discusses crime information sources and limitations arising from their excessive dependence upon the same sources of information. Parts III and IV of the Article focus on the information and methods that American society depends upon to determine the amount and seriousness of"serious" crime. These parts of the Article criticize society's present modes of crime assessment by evaluating public perceptions of crime under several standards for determining the amount of harm that results from different criminal acts. In part V, the Article examines …

Witness For The Defense: A Right To Immunity, Robin D. Mass

Vanderbilt Law Review

This Note has outlined various constitutional arguments that the criminal defendant can invoke in support of an application for witness immunity.First, the Note relies on the Supreme Court's decision in United States v. Nixon for its argument that courts should use a flexible separation of powers approach in the context of witness immunity grants. While the Nixon Court accepted the notion that separation of powers protects the decision making authority of the individual branches of government from infringement by the other branches, it observed that the doctrine does not enforce an absolute executive privilege. Thus, the separation of powers doctrine …

Recent Publications, Paul Heng-Chao Chen, Paul Hoffman, Gilbert Sharpe, Glenn Sawyer, Leon Friedman, Catharine A. Mackinnon, Edward Dumbauld

Vanderbilt Law Review

Chinese Legal Tradition Under the Mongols: The Code of 1291 as Reconstructed. By Paul Heng-chao Ch'en

The author's analysis of the "New Code" leads him to two conclusions: that the Yuan penal system was more lenient than its predecessors in imposing lesser punishments for minor offenses, and that the Mongol-Chinese partnership of the Yuan dynasty developed one of the most impressive and mature judicial systems that imperial China ever had for the administration of justice. He therefore argues that Chinese law in the time of Marco Polo was much less barbaric than has traditionally been thought.

Courthouse. By Paul Hoffman. …

Comment: Law And Disorder In Nineteenth-Century Kentucky, Mary K. Bonsteel Tachau

Vanderbilt Law Review

Robert M. Ireland's Article, "Law and Disorder in Nineteenth-Century Kentucky," centers on the state constitutional conventions of 1849 and 1890-1891, spiced with newspaper accounts, statutes,court cases, and legislative records. He has said that his Article presents a preliminary overview of some of the principal problems of the criminal justice system of nineteenth-century Kentucky. I hope this means he intends to continue his study so that soon we can expect a full examination of the criminal justice system in that state. I also hope that other scholars then will be inspired by his example to examine other contemporary state criminal justice …

Recent Publications, Journal Staff

Vanderbilt Law Review

Bar Admission Rules and Student Practice Rules

Edited by Fannie J. Klein with contributions by Ms. Klein, Steven H. Leleiko, and Jane H. Mavity

In this single volume, the Council on Legal Education for Professional Responsibility provides the first comprehensive collection of state and federal bar admission and law student practice rules. - - - - - - - - -

Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies

By Stephen Wasby, Anthony D'Amato,and Rosemary Metrailer.

In 1954, the United States Supreme Court in Brown v. Board of Education (Brown I) held that "separate" education for blacks …

Crisis In The Courts: Proposals For Change, Griffin B. Bell

Vanderbilt Law Review

The popular conception of the crisis in the courts focuses upon the condition of the courts and particularly upon the increasing volume of disputes that are presented for resolution. For example,Judge Ruggero J. Aldisert of the Third Circuit, one of the busiest federal circuits, has observed: "The reality is that today there is a mad rush to the Federal courts." The available statistics reflect Judge Aldisert's observation. For instance, according to the most recent report of the Administrative Office of the United States Courts, record numbers of cases have been filed in the circuit and district courts during the past …

Book Reviews, Frank J. Remington, George B. Tindall

Vanderbilt Law Review

Fair and Certain Punishment

Review by Frank J. Remington

Punishing Criminals. By Ernest van den Haag. New York: BasicBooks, Inc., 1975. Thinking About Crime. By James Q. Wilson. New York: BasicBooks, Inc., 1975.

Times change. So also do opinions about important social problems such as crime and government's response to crime. The books of both van den Haag and Wilson reflect changing opinions on crime and on what to do about crime. Both urge that we abandon the view that social conditions are an important cause of crime and that an improvement in social conditions will reduce crime substantially.Both urge …

Ethical And Value Issues In Population Limitation And Distribution In The United States, Martin P. Golding, Naomi Holtzman Golding

Vanderbilt Law Review

Any discussion of the ethical issues in population limitation and redistribution must begin by focusing upon the definition of "the problem," because how one views the problem, and its urgency and gravity, inevitably determines whether there is something that ought to be done and what it is that ought to be done.

As laymen in many of the areas that are relevant to the population problem, we are forced to rely on the expert knowledge of others. It would be highly salutary if there were a body of received opinion that could be used without hesitation. Unfortunately, on many crucial …

Legal Education: A More Optimistic View, Robert B. Mckay

Vanderbilt Law Review

While few would disagree with Dean Forrester's statement that"America is now in the midst of an attempted revolution," several questions naturally arise. Dean Forrester does not identify the nature and goals of the "attempted revolution," but the inference is that he disapproves. One wonders whether he objects to change because it challenges the status quo; whether he disagrees with the direction of the proposed change; or whether he opposes the method, particularly the abruptness, with which change is being forced upon us. Each possibility merits response.

Change Versus the Status Quo. It would be unfair to Dean Forrester to suggest …

Legal Institutions And Social Controls, Philip Selznick

Vanderbilt Law Review

When the architects of this program asked me to discuss non-legal social controls, I assume they had in mind the need for greater humility within the legal profession. So proud an occasion as this calls for sober reflection on the limits of the distinctively legal-on the contingent, derivative, and partial place of formal adjudication and control within the larger ordering of human society. I have no objection to communicating such a perspective, there by adding an appropriate note of piety to these proceedings. Nevertheless, I think it may be more important for us to consider some of the great social …

The Lawyer's Response To The Demand For Both Stability And Change Through Law, Orison S. Marden

Vanderbilt Law Review

We need not worry about the lawyer's response to the need for stability in the law. The average lawyer is a conservative chap who does not favor change unless the need for it has been proved to the hilt.Nor need we tender full apologies for this hardheaded attitude, for,as Judge Cardozo once said, "certainty and uniformity are gains not lightly to be sacrificed. Above all is this true when honest men have shaped their conduct upon the faith of the pronouncement." At times, however, we have allowed these considerations, important as they are, to outweigh even more compelling reasons for …