Law Commons^™

Law, Literature, And Social Change: Foreword, Sharon A. Mattingly

Vanderbilt Law Review

FOREWORD: Interpreting the meaning of words, whether those words compose a precedent-setting case or a newly enacted statute, is an integral part of the law. Furthermore, the impact of legal texts clearly extends beyond the legal discipline and permeates all layers of society. But from where do we derive the meaning of words and texts? Is the text itself the source of meaning, or is the text an embodiment of a meaning, the source of which is society? What determines textual interpretations-the historical roots of the text itself, the historical gloss of prior interpretations, the private experiences that each new …

Rhetoric Of Silence: Some Reflections On Law, Literature, And Social Violence, James A. Epstein

Vanderbilt Law Review

Martha Minow suggests the importance of looking outside of court-rooms and the law to find ways of speaking about social and family violence. Her article underscores the difficulties of breaking silence, and yet the power to impose silence is integral to violence itself. We are called upon, however, not only to speak, but to listen. Respectful listening indeed may be a prerequisite to attempting to frame words and actions of intervention and resistance. We are called upon to speak, but we are hard pressed to summon public language that does justice to private pain and anguish.

Robert Cover, in his …

Words And The Door To The Land Of Change: Law, Language, And Family Violence, Martha Minow

Vanderbilt Law Review

Can words stem violence? More specifically, can anything anyone says halt the physical devastation inflicted daily behind the closed doors of family dwellings? Some people strike, beat, or burn their children. Some people assault their lovers, some their spouses; usually, men batter women.' Can words, uttered by anyone else, stop this violence?

Words of journalists expose family violence to public view. Words of legislatures and judges forbid and punish family abuse. Words of historians, novelists, television scriptwriters, social workers, feminist theorists, and songwriters depict and decry domestic violence against a backdrop of societal silence about it. But are there words …

Private Lives, Public Selves, Jean B. Elshtain

Vanderbilt Law Review

What of the making public of a letter, what of the vocation of correspondent? Letters are a private genre, belonging in general, Kundera would say, to the domain of intimate life. When they "go public" some boundary is crossed, some violation is committed. Kundera's position hints that the great Oliver Wendell Holmes was perhaps a bit of a monster, seeming in his private life to be very much the "same" man as he was in his public vocation, except for his romantic effulgency with Clare Castletown. Reading this occasionally twittery and school boyish prose in Professor G. Edward White's article, …

The Role Of Law In Progressive Politics, Cornel West

Vanderbilt Law Review

What is the role and function of the law in contemporary progressive politics? Do legal institutions represent crucial terrain on which significant social change can take place? If so, how? In what ways? How can progressive lawyers remain relatively true to their moral convictions and political goals?

In this Article I shall attempt to respond to these urgent questions.I will try to carve out a vital democratic space left between the Scylla of upbeat liberalism that harbors excessive hopes for the law and the Charybdis of downbeat leftism that promotes exorbitant doubts about the law. My argument rests upon three …

Social Violence And Political Representation, Michael Ryan

Vanderbilt Law Review

If I were to sum up the revolution that has occurred in the humanities (and increasingly in the social sciences) in the past two decades, it would be to say that what was before seen as substance is now seen as representation. One could expand on that statement in several ways:what was before seen as nature or reason is now seen as convention or artifact; what was before a logic of necessity is now a highly contingent,even random relation of terms whose connections obey no necessary order; what was before a ground or foundation from which reasonable derivatives could be …

"Autocephalous Greek-Orthodox Church Of Cyprus V. Goldberg & Feldman Fine Arts, Inc".: Entrenchment Of The Due Diligence Requirement In Replevin Actions For Stolen Art, Stephen L. Foutty

Vanderbilt Law Review

Art prices are reaching spectacular heights. Current estimates place annual worldwide retail sales between ten billion and forty billion dollars;' each auction season, bidders smash previous price records. For example, at a May 9, 1989 Sotheby's auction, a buyer paid 47.9 million dollars for Picasso's self-portrait "Yo-Picasso"; Gaugin's "Mata Mau (In Olden Times)" sold for 24.2 million dollars. The next day at Christie's, an investor purchased a Monet for 14.3 million dollars, twice it's estimated value.' The inflated prices have inspired people without a prior interest in art to conceive a sudden passion for collecting by any available means. As …

Holmes As Correspondent, G. Edward White

Vanderbilt Law Review

This Article explores the function of letter writing in the life of Justice Oliver Wendell Holmes. I argue that letter writing was a by-product of an effort by Holmes to compartmentalize his life into professional ("my work") and domestic ("my wife") spheres, a compartmentalization that had its constraining effects. Because of this compartmentalization, a series of pursuits to which Holmes was attracted, ranging from speculation in the realms of literature and philosophy to flirtations with attractive women, were relegated implicitly to secondary stature, causing strain. In this context, letter writing functioned as a release for Holmes: a release from the …

The Constitutionality Of Pregnancy Clauses In Living Will Statutes, Elizabeth C. Benton

Vanderbilt Law Review

In 1976 the New Jersey Supreme Court allowed parents to remove a life support system from the body of their daughter after doctors deemed her vegetative state irreversible." The case, In re Quinlan, received extensive national media attention and pitted concerns about the quality of life and personal autonomy against respect for the sanctity of life. This conflict has intensified as medical technology has progressed so that patients who otherwise would die faster, natural deaths now are sustained indefinitely. Some patients and families see this life support as medical heroism, while others view it as painful,futile prolongation of death. One …

Law As Text: A Response To Professor Michael Ryan, Robert N. Covington

Vanderbilt Law Review

Law, Professor Michael Ryan reminds us by his emphasis on law as legitimating representation, is also text. This is the most telling of the many points he sets out in his provocative and thoughtful article; for those of us called to the bar, it is an important reminder. For us lawyers, after all, law is not so much text as it is process, not so much noun as verb. It is not that we disregard the fact that law is in part a pen-and-ink affair. Our shelves sag with books; in academic life, few divisions of a university spend so …

Afterword: Voices And Violence--A Dialogue, Ellen W. Clayton, Jay Clayton

Vanderbilt Law Review

WE: When organizing this Symposium on the topic of "Law, Literature,and Social Change," we asked whether current trends in literature and in literary, social, and legal theory actually could play a role in bringing about social change. The authors gathered at this Symposium responded to this question in very different ways. As we read their articles and comments, however, and as we talked about their various approaches, some common themes began to emerge. Narrative seemed important. The way people split public life off from private experience came up frequently. But violence seemed to be on everyone's mind.

IT: Why violence? …

To Quote Or Not To Quote: The Status Of Misquoted Material In Defamation Law, Sharon A. Mattingly

Vanderbilt Law Review

To quote or not to quote' is no longer a valid question in defamation law because courts have lessened the burden on writers to use the exact words of the speaker in quoted language. If individuals feel that the press has misquoted them, they have three realistic options: First,ignore the misquotation; second, contact the media and request a re-traction; and third, file a lawsuit claiming defamation and seeking monetary damages.' The first alternative is the easiest, but given the emotional overtones of defamation, it is also the most unlikely. If the media were more sensitive and less defensive, the second …

Academic Freedom And The University Title Vii Suit After University Of Pennsylvania V. Eeoc And Brown V. Trustees Of Boston University, Clisby L.H. Barrow

Vanderbilt Law Review

Tenure' is the crowning laurel of academia. The process of reviewing a candidate for tenure at the university level generally begins with an evaluation and recommendation by a group of the candidate's peers. Candidates who are denied tenure may seek judicial review of the decision and discovery of peer review materials. Not surprisingly, universities encourage courts to defer to tenure decisions and to deny plaintiffs access to confidential peer review documents.Traditionally, in fact, courts have given great deference to university tenure decisions. Judicial deference has pervaded every phase of review from discovery to trial and remedy. As deference to university …

Aids, Rape, And The Fourth Amendment: Schemes For Mandatory Aids Testing Of Sex Offenders, Paul H. Macdonald

Vanderbilt Law Review

Few subjects are as emotionally troubling as AIDS' and rape. The latter, of course, has plagued society throughout human history, but AIDS only recently has imposed itself upon our social and medical consciousness. Ever since AIDS became a familiar sight in the headlines nearly ten years ago, society has reacted to it with a mixture of anxiety, confusion, and despair. One consequence of the new societal awareness is the increased hesitancy with which individuals approach intimate contact. When intimate contact is involuntary as in the case of rape, fear of exposure to the disease is especially pronounced. Society,however, seems ill-prepared …

Product Health Claims And The First Amendment: Scientific Expression And The Twilight Zone Of Commercial Speech, Martin H. Redish

Vanderbilt Law Review

Imagine, for a moment, that Congress has enacted the "False and Misleading Medical and Scientific Reporting Act of 1990." The law is premised on a fear that scientific quackery may cause significant societal harm by confusing the public and inducing its members to seek out costly, worthless, and possibly harmful medical cures or supposed scientific advances. The Act establishes a special commission of scientific and medical experts to rule on the accuracy of any proposed scientific or medical theory that conceivably could cause public harm or confusion. Such scientific or medical assertions must be substantiated to the commission's satisfaction, or …

Franchising And The Collective Rights Of Franchisees, Robert W. Emerson

Vanderbilt Law Review

Assume that you are the franchisee of a nationwide restaurant chain. Your franchisor has acted contrary to what you believe to be in your best interest. For the franchisor, bigger is better: more outlets and discount programs mean higher sales volume and consequently additional franchise fees and royalties, with royalties typically being based on gross sales-not franchisee net profits. You are concerned that the franchisor is oriented more toward expansion than the well-being of existing franchisees. Franchisor assistance is less than you expected, but royalties and other charges seem steep.Facing a strong franchisor that appears not to worry about an …

Economics, Feminism, And The Reinvention Of Alimony: A Reply To Ira Ellman, June Carbone

Vanderbilt Law Review

Divorce reform and gender roles are inextricably linked. When Lenore Weitzman chronicled the devastating consequences of divorce for most women, she described a legal system that, in an effort to be gender neutral in a formal sense, made no allowance for the domestic role women continue to perform. Herma Hill Kay, in reviewing Weitzman-inspired proposals to expand the scope of the financial awards made at divorce, nonetheless warned against encouraging "future couples entering marriage to make choices that will be economically disabling for women, thereby perpetuating their traditional financial dependence upon men and contributing to their inequality with men at …

The Common Law As Cricket, David F. Partlett

Vanderbilt Law Review

Cricket and baseball are the summer national pastimes of England and America. They both involve players, one of whom propels a hard leather ball toward another with the intent of getting that other "out."The hitter tries to avoid getting out and attempts to hit the ball as far as possible. Umpires preside. Despite all these and other common factors, the games are different. Baseball is brash and dusty, and umpires endure frequent abuse; cricket is restrained and village greenish, and umpires rarely suffer abuse. Both games draw from history and culture.Where transplanted the games assume a different guise. In the …

The Role Of International Law As A Canon Of Domestic Statutory Construction, Ralph G. Steinhardt

Vanderbilt Law Review

From the beginning of our constitutional life, the Supreme Court has articulated principles that structure the juridical relationship between international law and domestic law. These principles purportedly offer rules of decision for resolving in domestic courts the potential in-consistencies between external and internal sources of law, and they do so with the surface simplicity of axioms. Treaties, for example, cannot trump constitutional norms.' Customary international law can provide a rule of decision at least in the absence of controlling legislative or executive acts. In the case of an irreconcilable conflict between a treaty and a statute, the latter-in-time prevails. When …

Securities Arbitration After Mcmahon, Rodriguez, And The New Rules: Can Investors' Rights Really Be Protected?, Perry E. Wallace, Jr.

Vanderbilt Law Review

Securities arbitration' is now ascendant as a favored device for resolving disputes between broker-dealers and their customers, and much of this recent status derives from a series of United States Supreme Court decisions.' Culminating in Shearson/American Express,Inc. v. McMahon and Rodriguez de Quijas v. Shearson/American Ex-press, Inc., these decisions have ended the reign of certain restrictive judicial decisions that previously governed the availability of arbitration under the Federal Arbitration Act (FAA or Arbitration Act) Accordingly, such developments presage a greatly expanded use of arbitration as a future means of resolving disputes between broker-dealers and customers." Indeed, since the Supreme Court …

Drug Diplomacy And The Supply-Side Strategy: A Survey Of United States Practice, Sandi R. Murphy

Vanderbilt Law Review

The illicit drug trade is gigantic. The United Nations reports that the annual value of the illegal drug trade worldwide is 250 to 300 billion dollars.' The United States leads the world in illicit drug consumption and suffers a myriad of drug-related problems. The majority of marijuana, cocaine, and heroin consumed in the United States through out the 1980s was supplied by six Latin American and Caribbean countries. These countries, like the United States, are plagued by drug-related problems. The governments and citizens of both drug producing and drug transit countries are increasingly victims of crime, violence,and corruption.

Attendant to …

Government Drug Testing: A Question Of Reasonableness, James M. Sokolowski

Vanderbilt Law Review

The 1980s were noted for the escalation of the war on drugs. The dominant public perception was that drug use is a hideous evil that must be stopped, even at a great cost of public resources and personal liberties. Parents, politicians, and law enforcement officials rallied to battle drug use.2 Tremendous expenses and limited victories did not slow the war on drugs.'It cannot be disputed that drug abuse is widespread. More than seventy million Americans have experimented with illegal drugs, and twenty-three million currently use an illegal drug.4 The costs to society include drug-related crimes, accidents, lost productivity, increased health …

Drug Couriers And The Fourth Amendment: Vanishing Privacy Rights For Commercial Passengers, Alexandra Coulter

Vanderbilt Law Review

Increased drug enforcement initiatives within the United States parallel the international' escalation of the war on drugs. Curbing the flow of narcotics into the country has seemed an unconquerable task.The tremendous influx of illegal substances and the heightened domestic production of both natural and synthetic' drugs prompt governments at every level to attempt to restrict drug trafficking within the United States.' The enforcement escalation is highlighted by a vociferous executive and congressional commitment to the eradication of the drug problem, improved drug detection technology, and a dedication of increased manpower and resources to enforcement efforts.'

Detecting illegal substances during transportation …

Special Project: Current Issues In Drug Enforcement Law, S. Douglas Williams, Jr.

Vanderbilt Law Review

The illegal drug trade and its costs to society have grown exponentially in the past several years. Drug traffickers, both within the United States and abroad, have amassed incredible wealth trafficking illicit drugs while the United States, the world's leading consumer of those drugs,' has suffered drug related increases in lost productivity, insurance costs, and health care expenditures. As the impact of these problems has reached more Americans, popular support for increased enforcement efforts has grown. Politicians have successfully used the drug war as a get-tough-on-crime campaign message. Local communities have organized themselves to confront drug dealers and to attempt …

Drug Proceeds Forfeiture And The Right To Counsel Of Choice, Danton A. Berube

Vanderbilt Law Review

As part of the current war on drugs, Congress enacted 21 U.S.C.section 853, the drug proceeds forfeiture statute. The statute authorizes criminal forfeiture of assets that are used in the commission of, or constitute the proceeds from, a federal drug felony. When prosecutors began to use the statute to seek forfeiture of defense counsel's attorney's fees, defendants and the law firms that represented them argued that the provision violated the sixth amendment right to counsel.

The courts of appeals were divided on the question of whether the sixth amendment prohibits forfeiture of assets intended to be used to hire an …

Current Rico Policies Of The Department Of Justice, Edward S.G. Dennis, Jr.

Vanderbilt Law Review

In H.J. Inc. v. Northwestern Bell Telephone Co. the United States Supreme Court issued its latest opinion interpreting the reach of the Racketeer Influenced and Corrupt Organizations Act (RICO).' The H.J. Inc. decision comes at a time when the RICO statute is at the center of controversy. Those opposed to private treble damages suits particularly attack the statute. The defense bar attacks the use of the statute in white-collar prosecutions, especially in those cases involving securities fraud. If the defense bar has its way in Congress, RICO could not be invoked in cases involving fraud alone. The criminal defense bar …

The Defense Case For Rico Reform, Terrance G. Reed

Vanderbilt Law Review

Frequent use of the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO)' by government and private litigants has prompted a chorus of criticism during the last five years. This criticism has not been restricted to the narrow confines of the legal profession;many respectable newspapers recently have issued calls for the outright repeal of RICO. Attorneys who regularly defend against criminal or civil RICO allegations cannot take credit for the increasing dissatisfaction with RICO. Rather, it is the successes, and indeed the excesses, of RICO's proponents that have tarnished the statute's image. RICO's revolutionary application to increasingly broad areas of …

Judicial "Pruning" Of "Garden Variety Fraud" Civil Rico Cases Does Not Work: It's Time For Congress To Act, Susan Getzendanner

Vanderbilt Law Review

After many years of effort, Congress actually may amend substantively the civil provisions of the Racketeer Influenced and Corrupt Organizations Act'-"RICO"-this year.' So I am delighted to accept the timely invitation of the Vanderbilt Law Review to add my view of how the law should be revised.My RICO perspective comes from my years as a federal district court judge in Chicago from 1980 to 1987, when I witnessed the real birth and growth of civil RICO.'

I am told by my co-panelist, Professor G. Robert Blakey, that for a time I had written more RICO opinions than any other judge …

Reforming Rico: If, Why, And How, Rene Augustine

Vanderbilt Law Review

With its increased use both by prosecutors and private plaintiffs,the RICO statute has prompted a host of criticisms. For instance, some critics argue that Congress intended RICO to battle mafia crimes of the Al Capone genre, but that it has been applied in situations far beyond those Congress originally envisioned. Some seek RICO reform because of concerns that the statute may threaten civil liberties and chill free speech. Unhappiness with RICO has led to some uncommon alliances between diverse groups who wish to reform or repeal the statute. In fact, RICO itself has been applied to a wide variety of …

Rico Threatens Civil Liberties, Antonio J. Califa

Vanderbilt Law Review

The history of conspiracy, according to Justice Robert Jackson, exemplifies the "'tendency of a principle to expand itself to the limit of its logic.' "" This same phenomenon is present today in the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO). RICO has moved beyond logic and intent into areas far removed from racketeering. Originally intended to combat organized crime, RICO is used increasingly in ideological disputes. For example, it has been used against abortion clinic protesters and anti-pornography groups.

This Article argues that using RICO in ideological disputes is inappropriate and harmful because it results in the chilling …