Law Commons^™

Further Thoughts On Realizing Gains And Losses At Death, Joseph M. Dodge

Vanderbilt Law Review

Professor Lawrence Zelenak has put forth a detailed proposal' for repealing present Section 1014 of the Internal Revenue Code, which gives a decedent's successor a basis equal to the estate tax value of property at death. This rule, commonly known as the stepped-up basis (at death) rule, has been roundly criticized as producing an unwarranted (inequitable, nonneutral) income tax loophole, because the step up in basis without realization of gain removes the gain from the tax system entirely. Its repeal, therefore, offers a potential source of significant revenue. Moreover, Section 1014 aggravates the "lock-in effect"; that is, it inhibits rational …

Making Sense Of The Rule Of Reason: A New Standard For Section 1 Of The Sherman Act, Thomas A. Piraino, Jr.

Vanderbilt Law Review

For most of the twentieth century, the federal courts have assumed that they must choose between two extreme methods of analyzing conduct under Section 1 of the Sherman Act:' a per se rule that deems certain conduct illegal on its face; or, a rule of reason that inquires into all conceivable circumstances before determining the legality of a particular restraint. Until the 1970s, the courts were enamored of the clarity, simplicity, and deterrent effects of per se rules. As they have become more knowledgeable about economic theory in the last fifteen years, however, the courts have grown disillusioned with the …

The Neoconservative Case Against Hate-Speech Regulation -- Lively, D'Souza, Gates, Carter, And The Toughlove Crowd, Richard Delgado, David Yun

Vanderbilt Law Review

In Babette's Feast, the French housekeeper for two dour Protestant sisters living in a remote Danish village where life is hard decides to mark her fourteenth year of working in this repressed environment by preparing a huge feast. Using money she has just won from the French lottery, she imports turtles, quail, and the finest wines, and serves them at a long table to the sisters and their congregation. But she has not counted on the experience's novelty: Until now, the God-fearing folks gathered at her table have not touched a drop of liquor or eaten anything other than dried …

"Not In My State's Indian Reservation"-- A Legislative Fix To Close An Environmental Law Loophole, Roger R. Martella, Jr.

Vanderbilt Law Review

For hundreds of years, this continent's Indians shared a spiritual belief that they must respect and protect their Mother Earth above all else. Today, however, many tribes no longer view the environment as a bank of natural resources that they must shield and shelter at any cost. Instead, the economic pressures of the twentieth century-particularly underdevelopment, unemployment, and poverty -are forcing a growing number of Indian tribes to exchange the spiritual view of their once pristine environment for a commercial one. This shift from nurturing nature to exploiting the environment on a growing number of reservations results largely from a …

Legal Malpractice: The Profession's Dirty Little Secret, Manuel R. Ramos

Vanderbilt Law Review

Legal malpractice is a taboo subject. It has been ignored by the legal profession,' law schools, mandatory continuing legal education ("CLE") programs, and even by scholarly' and lay publications. Unfortunately, our perception of legal malpractice, up until now, has been highly distorted by secretive insurance companies, confidential settlement agreements, and a questionable American Bar Association ("ABA") Study. Nonetheless, sharply contrasting portraits of legal malpractice have emerged: either it is just a minor problem of "weeding out" a few "bad apples," or it is the tip of an "iceberg," ready to overwhelm the legal profession. The ABA Study has fostered the …

Rethinking Financial Information Disclosure Under The National Labor Relations Act, Brent Robbins

Vanderbilt Law Review

The National Labor Relations Act's ("NLRA") central purpose is to reduce industrial strife and stimulate economic growth by promoting collective bargaining between employers and unions.' The 1947 amendments to the Act make clear that collective bargaining must be conducted in good faith. Under the Act, as interpreted by the National Labor Relations Board ("NLRB") and the courts, labor and management must bargain collectively in good faith over the "mandatory" subjects of "wages, hours, and other terms and conditions of employment." From its earliest days, the NLRB has interpreted the duty to bargain collectively as requiring companies to bargain collectively with …

Lamb's Chapel V. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993), John E. Burgess

Vanderbilt Law Review

The First Amendment to the United States Constitution provides the primary foundation for the protection of several individual rights, including free speech and religious autonomy.' At times, how- ever, efforts to protect these rights appear to conflict with competing restraints on state action. The drafters of the First Amendment's Religion Clauses, for example, sought to guarantee religious freedom while maintaining a separation between church and state. The goal or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances."

Environmental Policy And Federal Structure: A Comparison Of The United States And Germany, Susan Rose-Acherman

Vanderbilt Law Review

The assignment of tasks to the appropriate level of government is an important aspect of environmental policy design. Because the costs and benefits of pollution control policies are closely tied to geography, political solutions should reflect the underlying spatial structure of environmental problems. These solutions should not only incorporate the long-distance effects of air and water pollution, but also account for the mobility of economic actors and the resource base of governments.

There are three general types of environmental problems. Global issues have no complex geographical component. Regional problems arise when political boundaries do not coincide with the pollution's geographical …

The Elastic Commerce Clause: A Political Theory Of American Federalism, William N. Eskridge, Jr., John Ferejohn

Vanderbilt Law Review

Federalism is sometimes said to be an unstable halfway house between unified national government and an alliance among separate the state, according to which sovereignty must ultimately be indivisible: either national institutions retain the authority to make decisions or they do not. Genuine federal arrangements are unstable under this perspective. The notion of indivisible sovereignty has a powerful hold on our view of politics, but we think it is limited, most importantly by its conflation of the question of where ultimate authority resides with the question of where state power is actually exerted. While the answer to the first question …

Federalism's Future In The Global Village, Barry Friedman

Vanderbilt Law Review

The world we live in is becoming smaller. Although no doubt people have been saying that since at least the travels of Marco Polo, Columbus, and Vespucci, events appear to be moving with startling rapidity. Global trade, global travel, global communication-all are bringing us together in ways that even twenty years ago we hardly could imagine. The words "globalization" and "internationalization" are heard frequently now, and in many new and different contexts. In contrast to the globalization phenomenon, we are accustomed to thinking about American federalism largely in domestic terms. The primary arena in which the debate about the role …

Symposium: Federalism's Future, Jeffrey R. Pettit

Vanderbilt Law Review

Two years have passed since my predecessor, Mike Smith, sat in Professor Barry Friedman's office to begin choosing a topic for the Symposium that now sits before you. Although choosing a topic for a symposium two years in advance of its occurrence can be a difficult task, the topic they agreed upon, Federalism's Future, transcends the risk of becoming outdated. If the Supreme Court's struggle to articulate a "reasoned principle" in balancing the powers and responsibilities of our state and federal governments in Garcia v. San Antonio Metropolitan Transit Authority, and later in New York v. United States,2 is any …

Free Trade And The Regulatory State: A Gatts-Eye View Of The Dormant Commerce Clause, Daniel A. Farber, Robert E. Hudec

Vanderbilt Law Review

At one time, federalism may have seemed a peculiarly American institution. Today, however, we can see federalism as a special case of the more general problem of allocating power among geographic units. Problems of federalism arise in structures as large as the European Union' and the even larger global trade system under the General Agreement on Tariffs and Trade ("GATT").

Free trade increasingly is accepted as a value internationally, as it always has been for commerce within the United States. Yet, both internationally and domestically, free trade must accommodate the reality of the modern regulatory state-a state that shows little …

Federalism, Untamed, Ann Althouse

Vanderbilt Law Review

Do you rankle at those amorphous rhapsodies about "Our Federalism" indulged in by judges who relegate civil rights litigants to state courts?' Why would anyone see cases in which state officials stand charged of violating the rights of individuals as presenting an occasion for deference to the states? If federal rights take precedence over state policies and practices, is it not perverse to prefer adjudication in the courts that have the strongest bias in favor of state interests? If jurisdiction is a duty and declining jurisdiction consequently a dubious business, shouldn't we reject judge-made doctrine and statutory interpretation that restrict …

Three Faces Of Federalism: Finding A Formula For The Future, Deborah J. Merritt

Vanderbilt Law Review

The first, and oldest, of the Supreme Court's concepts of federalism is the territorial model. This model recognizes that there is a discernible boundary between the subjects fit for national regulation and those reserved for state governance. Territorialists argue that the national government is supreme in some areas, while states reign sovereign in others. Adherents of this model, for example, might declare that the national government directs foreign affairs while the states control domestic relations.

Under the territorial model, federalism violations occur when the national government attempts to invade a substantive area of law reserved to the states. The Supreme …

Federalism And Civil Rights: Complementary And Competing Paradigms, James F. Blumstein

Vanderbilt Law Review

Until the Nixon Administration, federalism was not talked about much in the United States in the post-New Deal period and was not taken seriously as an intellectual matter. Increasingly, however, federalism has become an important domestic' and a critical worldwide issue. It may not be an exaggeration to say that federalism has indeed become the pervasive legal/political issue around the world.

In this Article I will make four points. First, by way of background and overview, I will conclude that the goal of federalism is and should be to encourage and facilitate geographically-based political autonomy without placing at risk the …

"What About The 'Ism'?" Normative And Formal Concerns In Contemporary Federalism, Richard Briffault

Vanderbilt Law Review

Contemporary legal discourse concerning federalism has shifted from the formal to the normative, that is, from a focus on the fifty states as unique entities in the American constitutional firmament to a concern with the values of federalism. This normative turn has had some salutary effects. It has sharpened the debate over federalism, reminded us of the impact of the federal design on the substance of American governance, and underscored the interrelationship of government structure and individual rights. But the normative approach has also, paradoxically, moved the focus of federalism away from the states. Many of the arguments offered on …

Understanding Federalism, Larry Kramer

Vanderbilt Law Review

It's necessary to begin with considering the sort of judicially enforced federalism rejected in Garcia and to consider why the Court rejected it. According to this view of federalism, the Constitution leaves certain substantive affairs exclusively to the states, and what matters is making sure that states can regulate these without federal interference. So long as this domain is protected, the political significance of states is assured and federalism is secure. The federal government can, if it chooses, take charge of all those matters as to which state and federal authority is concurrent-though Congress will find this harder to accomplish …

Why The Supreme Court Overruled "National League Of Cities", Mark Tushnet

Vanderbilt Law Review

We are now in the midst of a confused era for federalism doctrine. A court of appeals has read the Supreme Court's precedents for at least as much as they are worth in holding that Congress, in enacting the Gun-Free School Zones Act of 1990, exceeded the power the Commerce Clause grants it., The Supreme Court itself has been unable to develop a stable constitutional doctrine about the roles of Congress and the courts in protecting federalism. Every time the Supreme Court has wandered into the federalism forest, it has gotten lost. For a while, scholars believed we understood why. …

Five Views Of Federalism: "Converse-1983" In Context, Akhil R. Amar

Vanderbilt Law Review

In 1987, I published an overly long article in the Yale Law Journal entitled Of Sovereignty and Federalism. In it, I advanced a "converse-1983" model of federalism-a model that highlighted the ways in which state laws can provide remedies when federal officials violate federal constitutional rights. For example, prior to the 1971 landmark of Bivens v. Six Unknown Federal Agents, citizens whose Fourth Amendment rights had been violated by federal officers had no clear federal cause of action; but state trespass law often provided a remedy, and enabled citizens to recover when their "persons, houses, papers, [or] effects" had been …

R.A.V. V. City Of St. Paul: The Continuing Confusion Of The Fighting Words Doctrine, Melody L. Hurdle

Vanderbilt Law Review

Communication contributes to the marketplace of ideasI which is the only way to promote the discovery of truth in society. The importance of communication has led the United States Supreme Court to herald freedom of expression as "the matrix, the indispensable condition, of nearly every other form of freedom." Indeed, the Court protects few other constitutional rights with such fervor. First Amendment protection is not absolute, however, and the United States Supreme Court consistently has asserted that certain forms or classes of expression may be regulated without violating the Constitution. Generally speaking, the Court has carved exceptions to First Amendment …

Daubert V. Merrell Dow Pharmaceuticals: Pushing The Limits Of Scientific Reliability--The Questionable Wisdom Of Abandoning The Peer Review Standard For Admitting Expert Testimony, Alan W. Tamarelli, Jr.

Vanderbilt Law Review

Historically, trial courts have been cautious about allowing juries to hear testimony from scientific experts. When a testifying expert professes to have knowledge in a specialized field, juries often find sorting out issues of credibility and relevance difficult and confusing.' Therefore, federal courts traditionally have attempted to exclude expert testimony if its basis has not yet gained a requisite degree of acceptance within a relevant community of experts. The justification for this limitation is that those people who are in the best position to understand and evaluate this evidence-other experts-should make judgments about the reliability of scientific evidence. This contingent …

William J. Harbison, Charles W. Burson

Vanderbilt Law Review

Justice William J. Harbison served on the Tennessee Supreme Court from 1974 through 1990, and served that court as Chief Justice from 1981 to 1982 and from 1987 to 1989. During his tenure he authored numerous opinions that shaped and refined Tennessee law. The following Tribute briefly highlights some of Justice Harbison's most significant opinions.

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Justice Harbison authored a number of important opinions on new statutory schemes. The opinions provided needed guidance on and clarification of the law. For example, in Aluminum Co. of America v. Celauro, his opinion clarified the application of a 1986 statute that …

A Purposeful Approach To Products Liability Warnings And Non-English-Speaking Consumers, Thomas H. Lee

Vanderbilt Law Review

This simple statement, which represents a patriotic imperative ' for some Americans and a simple declaration of measurable observation for others, potentially plays havoc with products liability warning law. Products liability law, a byproduct of both common and statutory law, has developed state by state in a crazy quilt pattern across the country; although the states are virtually unanimous on broad doctrines, they have taken a Balkanized approach to details. Today, every jurisdiction recognizes that product manufacturers and sellers have a duty to warn consumers and users adequately of the inherent dangers associated with their products. This recognition, however, does …

William J. Harbison, Ward Dewitt, Jr.

Vanderbilt Law Review

Those close to him knew Bill Harbison for much more than the great legal scholar that he was. For almost twenty years I had the good fortune to practice law with him and was privileged to be his friend for over forty years. He was, as everyone knows, an outstanding lawyer and judge, but perhaps many do not know the non-legal side of Bill Harbison. In no particular order, Bill was a churchman, a sports enthusiast, a gardener, a historian, a fisherman, a lover of literature, and above all a devoted family man. For many years he was active at …

Reflections On The Hart And Wechsler Paradigm, Richard H. Fallon, Jr.

Vanderbilt Law Review

The Federal Courts field may be experiencing a methodological crisis, but if so, it is a methodological crisis of a peculiar kind. The problem is not that new methodologies threaten traditional modes of analysis. On the contrary, the difficulty is that we have been doing largely the same thing for more than forty years--asking much the same questions formulated by Henry Hart and Herbert Wechsler in the first edition of The Federal Courts and the Federal System' and trying to answer them with roughly the same techniques. Not surprisingly, a number of people would like to throw off the Hart …

Rereading "The Federal Courts": Revising The Domain Of Federal Courts Jurisprudence At The End Of The Twentieth Century, Judith Resnik

Vanderbilt Law Review

A first enterprise in understanding and reframing Federal Courts jurisprudence is to locate, descriptively, "the Federal Courts." This activity-identifying the topic-may seem too obvious for comment, but I hope to show its utility. One must start with a bit of history, going back to the "beginning" of this body of jurisprudence. The relevant date is 1928, when Felix Frankfurter and James Landis, who began this conversation, published their book, The Business of the Supreme Court: A Study in the Federal Judicial System. Three years later, in 1931, Felix Frankfurter, then joined by Wilber G. Katz (and later by Harry Shulman), …

William J. Harbison, Thomas J. Sherrard, Iii

Vanderbilt Law Review

Bill joined Sherrard & Roe after his retirement from the Tennessee Supreme Court in the spring of 1990. Although I didn't appreciate it fully at the time, his arrival proved to be a defining event for our firm. To a group of practitioners in a growing law practice still trying to identify clearly our professional objectives and philosophy of practice, Justice Harbison served as an immediate and constant exemplar of those qualities and attributes that we most admired and that we knew should be perpetuated in our firm.

Of course, we all knew before Bill Harbison joined our firm that …

Late Night Confessions In The Hart And Wechsler Hotel, Ann Althouse

Vanderbilt Law Review

I began my work in this field about a decade ago, as a teacher, quite simply, trying to find some coherence, some sense in the notoriously complex doctrine. Finding a scheme of coherence, a framework, really is the process of understanding. To merely observe that the field is chaotic, arcane, or incoherent is to decline the work of understanding. That rejection of the subject matter may be a fair and appropriate reaction: witness my colleagues who regard Federal Courts as a "mind game" or a "crossword puzzle." (Indeed, vast numbers bf laypersons have this reaction to the entire subject of …

The First Amendment And Homosexual Expression: The Need For An Expanded Interpretation, Brent H. Allen

Vanderbilt Law Review

"Homosexuality is today essentially a form of political, social, and moral dissent on par with the best American traditions of dissent and even subversive advocacy.... Those that support criminalization find today in homosexuality what they found before in the family planning of Sanger, the atheism of Darwin, the socialism of Debs, or the Marxist advocacy of the American Communist Party."

Ostensibly, the First Amendment guarantees all people freedom of expression of every belief. The free exchange of ideas forms the basis of a democratic government. Only citizens with unhindered access to the famed "marketplace of ideas" can participate meaningfully in …

Foundations Of The Duty To Rescue, Steven J. Heyman

Vanderbilt Law Review

In 1908, James Barr Ames concluded his classic lecture on Law and Morals by posing the problem of a duty to rescue., Suppose, he said, that you are walking over a bridge when a man falls into the water and cries out for help. Do you have an obligation to save him from drowning by throwing a nearby rope? As the law then stood, the answer clearly was no. "The law does not compel active benevolence between man and man. It is left to one's conscience whether he shall be the good Samaritan or not." Nevertheless, Ames asserted, it was …