Law Commons^™

Sex In The Sunlight: The Effectiveness, Efficiency, Constitutionality, And Advisability Of Publishing Names And Pictures Of Prostitutes' Patrons, Courtney G. Persons

Vanderbilt Law Review

An interstate billboard warns visitors to La Mesa, California: "Attention johns: We take pictures." In 1994, to widespread political accolades, the city initiated a policy of publishing names and pictures of prostitutes' patrons in local newspapers. La Mesa is not alone. If nightmares about the revelation of the contents of Heidi Fleiss's little black book sent shivers down the spines of Hollywood's rich and fa- mous, the tremors have traveled through La Mesa and sent similar shudders across the nation. The anonymous sex once so sought-after for its secrecy has been slapped up on billboards as communities, desperate to disinfect …

Killing Egyptian Prisoners Of War: Does The Phrase "Lest We Forget" Apply To Israeli War Criminals?, Scott R. Morris

Vanderbilt Journal of Transnational Law

This Article offers an analysis of Israel's response, or lack thereof, to the 1995 admission by Israeli war hero General Ayre Biro that he participated in the slaughter of forty-nine unarmed Egyptian prisoners of war in 1956 during Israel's struggle for independence. While in the past Israel has actively pursued the prosecution of war criminals who committed atrocities against its own people under the battle cry "lest we forget," the country has recently shown a strong reluctance to take action against General Biro for his execution of Egyptian prisoners of war. Specifically, Israel reasons that its statute of limitations for …

Indirect Effects Of Direct Election: A Structural Examination Of The Seventh Amendment, Vikram D. Amar

Vanderbilt Law Review

Federalism is hot. Courts are trying to preserve it.' Politicians are trying to reinvent it. And academics are trying just to understand it. Inspired by this renewed interest in the relationship between federal and state governments, I decided to undertake a fresh examination of the Seventeenth Amendment which requires direct election-by the People of each State-of members of the United States Senate. After all, although direct election has not received extensive academic attention, the amendment's removal of state legislatures from the federal electoral process would seem to have significantly reworked the Constitution's federal framework; state legislative election of Senators was …

Liquor And Lemon: The Establishment Clause And State Regulation Of Alcohol Sales, Steven L. Lane

Vanderbilt Law Review

Approximately half of the fifty states and numerous municipalities maintain and enforce legislation that prohibits the sale of alcohol close to churches. A number of other states allow their liquor- licensing authorities to consider proposed vendors' proximity to churches. Likewise, states and municipalities in all regions of the country have laws that restrict the sale of alcohol on Sunday. Notwithstanding the secular justifications offered by the proponents of such legislation, analysis reveals that it is religiously motivated. Although the Bible contains no clear mandate against the sale, purchase, or consumption of alcohol, history illustrates that prohibitions on the sale of …

Double-Barreled Prosecution: Linking Multiple Section 924(C) Violations To A Single Predicate Offense, Christopher L. Robbins

Vanderbilt Law Review

Violent crime involving the use of firearms has risen dramatically during the past few decades. Recent congressional efforts to address this problem have focused almost exclusively on gun control as the appropriate solution, leading to the imposition of waiting periods for the purchase of firearms and complete bans on the production of certain assault weapons. Attempting to remove firearms from the hands of criminals, however, is not an exclusive remedy.

One of the natural companion measures to gun control is the imposition of severe sentences for the use of firearms during the commission of violent felonies. Congress adopted this approach …

The Fitness Of Law: Using Complexity Theory To Describe The Evolution Of Law And Society And Its Practical Meaning For Democracy, J. B. Ruhl

Vanderbilt Law Review

Why does law change, and how does that process unfold? In this Article, Professor Ruhl examines those questions using tools from the emerging field of Complexity Theory. Complexity Theory involves the study of change in dynamical systems. Its findings of unpredictable change in a variety of natural and social settings have profoundly effected the theoretical foundations of many fields of study. In particular, Complexity Theory has revisited the Darwinist theory of biological evolution and used it as a platform for developing a general theory of system evolution that focuses on the concept of fitness landscapes. The fitness, or sustainability, of …

Vietnam's Contemporary Battle With The United States: Vying For Most Favored Nation Trading Status, Davis Frye

Vanderbilt Journal of Transnational Law

Since the United States and Vietnam signed the Paris Peace Agreement of 1973, Vietnam has sought to normalize economic relations with the United States in hopes of gaining American capital and technology. After the Vietnam War, however, the United States imposed a trade embargo against Vietnam and passed legislation denying that country non-discriminatory trading status. Moreover, Vietnam's past human rights abuses and its previous unwillingness to resolve American MIA/POW issues made its ambition of normalized U.S. relations an improbability. Recently, however, in response to Vietnam's renewed cooperation with U.S. foreign objectives, President Clinton has lifted the trade embargo against that …

Untying A Judicial Knot: Examining The Constitutional Infirmities Of Extrajudicial Service And Executive Review In U.S. Extradition Procedure, Matthew M. Curley

Vanderbilt Law Review

Consider the following situation. An investment banker embezzles millions of dollars from a bank in Italy and transfers the funds to an account in the United States. While he is vacationing in the United States, federal marshals apprehend him pursuant to a request by the Italian government. They bring him before a federal district court judge sitting as an extradition magistrate in the local federal courthouse. After determining that the evidence presented meets the requisite level of criminality, the judge declares that the banker is properly extraditable and binds the case over to the Secretary of State.

The President, however, …

The Case For Applying The Eighth Amendment To Corporations, Elizabeth S. Warren

Vanderbilt Law Review

ABC Corporation employs fifty drivers and transports various products across state lines. An employee of ABC corporation secretly carries small amounts of illegal drugs in the trailers of the trucks he drives and does so without detection for five years. After law enforcement authorities discover the drug trafficking, the United States files an in rem action under 21 U.S.C. section 881(a)(4), seeking forfeiture of every truck that the guilty driver drove over the past five years and every trailer in which the guilty driver carried drugs. This forfeiture could result in ABC Corporation's losing a third of its trucks and …

The Spousal Defense--A Ploy To Escape Payment Or Simple Application Of The Equal Credit Opportunity Act?, Andrea M. Farley

Vanderbilt Law Review

A defaulting spouse may find a powerful and effective defense to a creditor's entry of judgment in the Equal Credit Opportunity Act ("ECOA" or "the Act") and the accompanying federal regulation ("Regulation B"). The defense arises when a married applicant enters a financial institution seeking a loan, and even though the applicant is unquestionably creditworthy, the creditor requires that the applicant's spouse co-sign the loan as a guaranteeing spouse. The financial institution has just violated the ECOA by discriminating against the applicant on account of the applicant's marital status. If the original applicant later defaults on the loan, the creditor …

Calling Off The Lynch Mob: The Corporate Director's Fiduciary Disclosure Duty, Lawrence A. Hamermesh

Vanderbilt Law Review

Two parallel bodies of American law establish the obligations of corporate directors to disclose information about the corporation to its existing stockholders: (1) the Securities Exchange Act of 1934, and (2) state common law, including doctrines such as fraud and negligent misrepresentation. Although these state common law doctrines have been applied to transactions in corporate securities, their significance has been largely eclipsed by comprehensive federal regulation.

Of growing importance, however, is a state law duty that courts have created and imposed upon directors based upon their fiduciary relation to the corporation and its stockholders. In the last twenty years, this …

Bargaining About Future Jeopardy, Daniel C. Richman

Vanderbilt Law Review

The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants-those who plead guilty instead of standing trial-the Double Jeopardy Clause sin- ply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring the dynamics of …

Economic Foundations Of The Current Regulatory Reform Efforts, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Almost since the inception of the risk and environmental agencies in the early 1970s, there has been a continuing concern with ensuring that regulations yield societal benefits commensurate with their costs. This recognition of the need for balance, in turn, has led policymakers to seek a greater role for economists, and the principles of economic analysis undoubtedly will continue to play a central role in the debate over the future of regulatory policy.

Cleaning Up Superfund, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The cleanup of hazardous wastes is the number one environmental concern of the American people. The government's response: the Environmental Protection Agency (EPA) launched its Superfund program, which was established by Congress in 1980 and reformed in 1986. But, though not even two decades old, the Superfund effort is now a major target of Congress in its regulatory reform efforts. There are two main sources of dissatisfaction: First, cleanups of hazardous wastes are expensive, averaging $25.7 million per site. Superfund expenditures increased from under $400 million in 1985 to over $1.4 billion in 1995 and continue to be above the …

Rape, Race, And Representation: The Power Of Discourse, Discourses Of Power, And The Reconstruction Of Heterosexuality, Elizabeth M. Iglesias

Vanderbilt Law Review

This Article explores some of the difficulties involved in designing genuinely effective and broadly inclusive legal strategies for eliminating women's sexual oppression. Part II.A begins the analysis by using Gary LaFree's empirical studies of rape enforcement practices to develop some observations about the kinds of legal strategies most likely to foster women's sexual autonomy.' LaFree's studies illustrate how the institutional structures and decision making procedures of the criminal justice system create the opportunity for rape processing practices to reproduce relations of race and gender subordination. Each discretionary decision point in the system creates a social space in which legal agents …

Appellate Court Voting Rules, Scott B. Smith

Vanderbilt Law Review

During the 1996 term, the United States Supreme Court made a candid confession about its voting practices. In Seminole Tribe of Florida v. Florida, the Court overruled Pennsylvania v. Union Gas Co. and recognized that when a justice defers to the majority against his or her own reasoning inconclusive precedent results. Union Gas was particularly unusual because Justice White switched his vote to assure a result in a three-remedy case where none of the three remedies had the support of a majority. In Seminole Tribe, the Court admitted Union Gas "has, since its issuance, been of questionable precedential value, largely …

Issues And Outcomes, Guidance, And Indeterminacy: A Reply To Professor John Rogers And Others, David G. Post, Steven C. Salop

Vanderbilt Law Review

There is now a small but growing literature on the proper voting procedure for multijudge panels. Professor John Rogers began the most recent round of thinking about these vexing issues, arguing that a judge on a multimember panel should never "vote against the result of his or her own reasoning by deferring to a majority on a sub-issue on which the judge differs." We responded, arguing in favor of just such action, which we labeled "issue voting." We criticized Professor Rogers's preferred mode of multimember court adjudication, which we labeled "outcome voting," on the grounds that it provided limited guidance …

"Issue Voting" By Multimember Appellate Courts: A Response To Some Radical Proposals, John M. Rogers

Vanderbilt Law Review

A judge on a multimember appellate court can vote against the result of his or her own reasoning by deferring to a majority on a subissue on which the judge differs. When Justice White did just this in Pennsylvania v. Union Gas,' soon followed by a similarly anomalous vote by Justice Kennedy in Arizona v. Fulminante, I examined the pool of United States Supreme Court cases in which this kind of voting was possible. Out of more than one hundred fifty earlier cases where one or more of the justices might have voted in such a way, only two justices …

How Outcome Voting Promotes Principled Issue Identification: A Reply To Professor John Rogers And Others, Maxwell L. Stearns

Vanderbilt Law Review

In his provocative article, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals,' Professor John M. Rogers has provided a valuable opportunity for those of us interested in the structural aspects of appellate court decisionmaking--especially Supreme Court decisionmaking--to step back, to compare notes, and to evaluate an increasingly prominent proposal for institutional reform. More importantly, this Colloquium provides an opportunity to explore more deeply several anomalies associated with appellate court decisionmaking. At the outset, I should emphasize that while he devotes a considerable portion of his article to evaluating my scholarship on appellate court decisionmaking, as Professor …

Recovering Environmental Cleanup Costs Under The Resource Conservation And Recovery Act: A Potential Solution To A Persistent Problem, Randall J. Butterfield

Vanderbilt Law Review

The rise of environmental concerns in the 1950s and 1960s' led Congress to adopt a number of statutes designed to curtail the pro- duction of air and water pollution as well as to promote the proper handling, storage, and disposal of those substances capable of contaminating the nation's natural resources. Citizen suit provisions were eventually incorporated into these environmental statutes in an effort to supplement what many perceived to be less than diligent governmental enforcement measures. However, despite early congressional efforts to regulate air and water pollution, disposal of hazardous waste on land went largely unregulated. This legislative oversight resulted …

Venue For Offshore Environmental Crimes: The Seaward Limits Of The Federal Judicial Districts, M. Benjamin Cowan

Vanderbilt Law Review

Consider the following scenario: USA Oil, an American company incorporated in Delaware with its principal place of business in California, has been conducting ongoing oil drilling operations in the Gulf of Mexico. The company operates three oil platforms off the Texas coast. One is located two miles offshore, another six miles offshore, and the third ten miles offshore.

Federal authorities receive notice that on several occasions since the company began operating these rigs, it deliberately allowed large quantities of oil to leak into the Gulf from each of them. The government seeks to indict USA Oil on three counts of …

Reexamining Copyright's Incentives-Access Paradigm, Glynn S. Lunney, Jr., Glynn Lunney

Vanderbilt Law Review

For the past three centuries, defining the appropriate scope of copyright has entailed an examination of incentives and access.' Broadening the scope of copyright increases the incentive to produce works of authorship and results in a greater variety of such works. Broadening copyright's scope, however, also limits access to such works both generally, by increasing their price, and specifically, by limiting the material that others can use to create additional works. Given these competing considerations, defining copyright's proper scope has become a matter of balancing the benefits of broader protection, in the form of increased incentive to produce such works, …

Deterring Irresponsible Use And Disposal Of Toxic Substances: The Case For Legislative Recognition Of Increased Risk Causes Of Action, Tamsen D. Love

Vanderbilt Law Review

Increasing risk does not ordinarily result in tort liability. For instance, every speeding driver increases the risk of a traffic accident.' Tort liability, however, attaches only if the driver actually causes an accident, This means that of two reckless drivers who engage in exactly the same risky behavior, one might face great liability, while the other might escape with no liability at all. The difference between the two cases is in many ways a mere fortuity-whether timing and circumstance conspire to cause a traffic accident in a particular case or not. Many acts of reckless driving go unanswered in tort …

"Ssc Corp. V. Town Of Smithtown And Usa Recycling, Inc. V. Town Of Babylon:" Reinvigoration Of The Market Participant Exception In The Arena Of Municipal Solid Waste Management, David L. Johnson

Vanderbilt Law Review

Residents and commercial enterprises in the United States generate an enormous amount of solid waste. The responsibility of managing the collection and storage of this waste has traditionally been a municipal function, and disposal of the waste is a dilemma that perpetually confronts the states. With the advent of stricter federal guidelines concerning the disposal of solid waste, state and local governments have been forced to implement creative approaches to handle an ever-increasing supply of garbage.

The two predominant strategies used by local governments to address the dilemma are import restrictions and export restrictions. Import restrictions protect landfills by limiting …

Environmental Reform In An Era Of Political Discontent, Walter R. Burkley

Vanderbilt Law Review

When Congress sought in 1995 to restructure the federal environmental regulatory schemes, it looked like a good fight to pick.' Congress, Republican-controlled for the first time in decades, was armed with an apparent mandate to shrink the federal government. Moreover, Americans were concerned about jobs and the economy. Environmental regulation, so the argument goes, impedes competitiveness, which in turn leads to loss of jobs. In addition, if history is any guide, environmental concerns tend to suffer in times when the economic interest of individuals is the driving political force. Given these dual concerns over the economy and the size of …

Faith In Fantasy: The Supreme Court's Reliance On Commutation To Ensure Justice In Death Penalty Cases, Victoria J. Palacios

Vanderbilt Law Review

Since scarcely a decade after Furman v. Georgia,' the Supreme Court has struggled to avoid review of death penalty cases by narrowing the grounds defendants can use to challenge their sentences, as well as the procedures they can use to make those challenges. The Court supports its jurisprudence and the deregulation of death with an important but unexamined assumption: whatever shortcomings exist in the administration of the death penalty, ultimately injustice can and will be avoided by the exercise of the commutation power at the state level.

This Article argues that such an assumption is unwarranted. By substituting the fantasy …

Public Choice, Public Opinion, And The Fuller Court, Jonathan R. Macey

Vanderbilt Law Review

Everyone has his own, personal view about what role the United States Supreme Court should play in American political life. Conservatives of the Robert Bork variety prefer that supreme court justices treat congressional enactments with great deference and respect.' Liberals of the Laurence Tribe persuasion like judges to take an active role in ensuring certain individual rights, such as the right to abortion, while giving Congress latitude to regulate in the sphere of economic rights. Libertarians of the Bernard Siegan orientation strenuously deny the difference between economic liberties and other sorts of human rights and would have judges actively protect …

Revoking The "Fishing License:" Recent Decisions Place Unwarranted Restrictions On Administrative Agencies' Power To Subpoena Personal Financial Records, Jack W. Campbell, Iv

Vanderbilt Law Review

The backbone of an administrative agency's effectiveness is the ability to investigate rapidly the activities of entities within the agency's jurisdiction., An agency's ability to carry out its investigative functions depends upon enforcement of the agency's administrative subpoenas. Courts have not always looked favorably upon broad agency subpoena power. The implementation of the New Deal and the exigencies of World War II created a need for increased administrative oversight of national affairs. Courts began to recognize the usefulness of proactive administrative government. Concurrent supreme court decisions reflected this philosophical change by adopting highly deferential views of administrative subpoena enforcement. This …

Race And Place: Geographic And Transcendent Community In The Post-"Shaw" Era, Lisa A. Kelly

Vanderbilt Law Review

In the Preface to Colored People, Henry Louis Gates, Jr., describes and explains for his daughter, Liza, communities characterized by race. Throughout his memoir, Professor Gates re- creates communities local and communities transcendent. In one passage, he insists that he is "from and of a time and place-Piedmont, West Virginia... slathered along the ridge of 'Old Baldie' mountain like butter on the jagged side of a Parker House roll." The geography of place, even within the small town of Piedmont, is central. Italian neighborhoods in the west, Irish neighborhoods up on "Arch Hill," wealthy white neighborhoods defined by the block …

Speaking Frankly About Copyright Infringement On Computer Bulletin Boards: Lessons To Be Learned From "Frank Music, Nctcom" And The White Paper, Joseph V. Myers, Iii

Vanderbilt Law Review

Copyright law operates primarily as a strict liability, regime whenever infringing behavior constitutes a direct infringement of copyright. When behavior qualifies as an indirect infringement, gaps in copyright protection are filled by principles of contributory and vicarious liability. Although the application of these liability constructs has never been a simple matter, recent growth in the on- line industry has resulted in a dramatic confusion and divergence of views. In particular, the law is currently unclear in two important respects. First, opinions differ greatly as to whether computer bulletin board operators ("sysops") should incur liability for the infringing misdeeds of individual …