Law Commons^™

Monitoring Governmental Disposition Of Assets: Fashioning Regulatory Substitutes For Market Controls, Harold J. Krent, Nicholas S. Zeppos

Vanderbilt Law Review

Each year, the government sells and leases public assets worth billions of dollars. FCC auctions to allocate rights to electromagnetic spectrum generated over twenty billion dollars within a three-year period, and proceeds from mineral leases, timber sales, and disposition of real estate from defaulting thrifts have surpassed several billion dollars annually.

From the taxpayer's perspective, however, government sales and leases have been deplorable. The government has donated valuable resources to preferred claimants, allocated scarce broadcast and oil rights resources by lottery, and sold both public land and mineral rights to private parties at a fraction of the market price. Although …

Witch Doctors And Battleship Stalkers: The Edges Of Exculpation In Entrapment Cases, John F. Preis

Vanderbilt Law Review

The bumbling criminal has long been humorous to the law-abiding. Take, for example, a man recently intent on robbing a bank. The man entered a Bank of America bank, grabbed a deposit slip, and wrote on it "This iz a stikkup. Put all your muny in this bag."' While waiting in line for a teller, he became worried that someone had seen him write the note and would inform the police. Thus, he exited the bank, walked across the street to the Wells Fargo bank, and gave the note to a teller. The teller, probably sensing his lack of dangerousness …

Beyond "Harm": Abandoning The Actual Injury Standard For Certain Prohibited Takings Under The Endangered Species Act By Giving Independent Meaning To "Harassment", Alicia M. Griffin

Vanderbilt Law Review

As new technology and a desire for progress propel us into the next millennium, a corresponding daily depletion of national and worldwide wildlife resources perpetuates the frightening biological problem of species extinction, resulting in "irreplaceable losses" to medicine, science, ecology, and aesthetics. Every species is a part of the intricate and complicated ecosystem; its stability depends on the continued existence of each of its components. Each black-footed ferret, blue whale, and red wolf contributes to the delicate "balance of nature," a state of ecology that must be maintained for humans to survive. Indeed, scientists have derived much-needed knowledge from other …

The Graduation Prayer Cases: Coercion By Any Other Name, Colin Delaney

Vanderbilt Law Review

The Supreme Court's decision in Lee v. Weisman held clergy- delivered invocations at public-school graduation ceremonies unconstitutional. In the wake of this landmark case, school boards across the country instituted a variety of policies to avoid the establishmentarian attributes fatal to the prayers in Lee. Several Courts of Appeals soon heard cases involving authorities seeking to divorce themselves from speakers and speaker selection, in the apparent belief that school involvement placed the imprimatur of the state on graduation prayer. Yet two facts mark all of the situations challenged to date. First, an agent of the state, the school board, exercised …

State Defiance Of Bankruptcy Law, Eric Winston

Vanderbilt Law Review

Bankruptcy is the principal device by which failing businesses and financially-troubled families get one last chance to reorganize their affairs back to financial health. It is also the graveyard for business failures, the place where we bury dead corporations and divide their remaining assets among their surviving creditors. In the last decade, the bankruptcy system has given seven million middle-class families a way to start over-an opportunity to save their homes from foreclosure, rid themselves of overwhelming debts, and reintegrate themselves into the workforce as productive citizens. It has also been the way that 10,000 corporations have restructured their way …

Privacy And Democracy In Cyberspace, Paul M. Schwartz

Vanderbilt Law Review

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self- determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which …

The Role Of Offshore Jurisdictions In The Development Of The International Trust, David Brownbill

Vanderbilt Journal of Transnational Law

The trust is a common law invention, the product of experience over many years. But the more it is reduced to legislation, the more formalistic it becomes, and the less able it will be to respond to new situations and challenges. The quasi-code approach--and, to a much lesser extent, the targeted approach--also results in a fragmenting of the trust law. The trust has benefited immensely from the relative uniformity of most general principles throughout the Commonwealth and other common law countries. This has enabled developments, in the form of judicial pronouncements, in one country to be freely adopted in others. …

Understanding Causation And Threshold Of Release In Cercla Liability: The Difference Between Single- And Multi-Polluter Contexts, Aaron Cooper

Vanderbilt Law Review

Toxic waste has become an increasing public health problem in America.' Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act CCERCLA" or "the Ace) in 1980, as a means to improve the efficiency of hazardous waste site cleanups. CERCLA encourages parties to clean up toxic sites by allowing those parties to recover response costs from potentially responsible parties (TRPs"). To accomplish this goal, CERCLA contains an expansive liability scheme that imposes strict liability on, among others, a party that has released or threatened release of a toxic substance that has caused or may cause the incurrence of response costs. …

Corporate Liability, Risk Shifting, And The Paradox Of Compliance, William S. Laufer

Vanderbilt Law Review

The evolution of corporate criminal law is explained by the shifting risks of liability and loss between corporations and their agents in accommodating the illogic of vicarious liability. A vivid example of the effects of this risk shifting is seen with the recent emergence of the good citizen corporation movement. This movement en- courages prosecutors with vast discretion to leverage indictments and convictions of subordinate agents, resort to civil and administrative actions against large and medium-sized corporations in place of criminal indictments, compromise agent indemnification, and enforce corporate self-regulation through elaborate plea agreements. Not surprisingly, organizations tend to conceive of …

Beyond The Formalism Debate: Expert Reasoning, Fuzzy Logic, And Complex Statutes, Edward S. Adams, Daniel A. Farber

Vanderbilt Law Review

Formalists and antiformalists continue to debate the utility of using legislative history and current social values to interpret statutes. Lost in the debate, however, is a clear model of how judges actually make decisions. Rather than focusing on complex problems presented by actual judicial decisions, formalists and antiformalists concentrate on stylized examples of simple statutes.

In this Article, Professors Adams and Farber construct a more functional model of judicial decisionmaking by focusing on complex problems. They use cognitive psychological research on expert reasoning and techniques from an emerging area in the field of artificial intelligence, fuzzy logic, to construct their …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law Review

In confronting important constitutional issues, state courts face a range of interpretive questions, many unanswered by the texts of state constitutions. Where a constitutional text fails to answer the question posed, a state court, much like its federal counterparts,' must look to extra-textual interpretive tools to aid in its decision- making task. The literature on state constitutional law provides important insights into how interpretation operates within a single state's. system of governance. But rarely does it attempt to under- stand and appreciate how or why the interpretive practices of state and federal constitutional systems differ.

This is unfortunate. Understood through …

State Defiance Of Bankruptcy Law, Kenneth N. Klee, James O. Johnston, Eric Winston

Vanderbilt Law Review

Bankruptcy is the principal device by which failing businesses and financially-troubled families get one last chance to reorganize their affairs back to financial health. It is also the graveyard for business failures, the place where we bury dead corporations and divide their remaining assets among their surviving creditors.

In the last decade, the bankruptcy system has given seven million middle-class families a way to start over-an opportunity to save their homes from foreclosure, rid themselves of overwhelming debts, and reintegrate themselves into the workforce as productive citizens. It has also been the way that 10,000 corporations have restructured their way …

The Trust Offshore, Antony G.D. Duckworth

Vanderbilt Journal of Transnational Law

I was not present at the birth of the offshore financial centers or of their trust business, but I am told that the mother was taxation. Perhaps that is an oversimplification, but I do not doubt that taxation was the major influence. The typical settlor was a taxpayer from one of the major common law countries, and his primary motive for going offshore was tax avoidance. But there were also a few settlors from other places, some motivated by estate planning considerations (the trust allowing them to make property arrangements which could not be made at home), some by fear …

Protecting Privacy On The Front Page: Why Restrictions On Commercial Use Of Law Enforcement Records Violate The First Amendment, Jason L. Cagle

Vanderbilt Law Review

An individual is involved in an automobile accident and is arrested for driving under the influence. A few days after being re- leased, he receives several letters in the mail. One is from a chiropractor offering services to treat his injuries. Another is from an alcohol abuse treatment center. Yet another is from an attorney who defends traffic offenses. Each of the solicitors obtained the individual's name and address from publicly available records concerning the incident. The letters are truthful and not misleading, but utilize publicly available information for purely commercial purposes at the expense of the individual's privacy.

Several …

The Legend Of "Crow Dog:" An Examination Of Jurisdiction Over Intra-Tribal Crimes Not Covered By The Major Crimes Act, James W. King

Vanderbilt Law Review

Native American tribes present unique problems to American jurisprudence and governance. Unquestionably subject to federal control on some levels, they have maintained the "inherent powers of a limited sovereignty" over internal affairs.' While both the Supreme Court and Congress have recognized this sovereignty, specific Congressional mandate can abrogate it at any time. This Note addresses the question of whether Congress has mandated federal jurisdiction over all serious crimes committed by Indians against other Indians on tribal land.

The story is long and complicated, with its beginnings in the 1883 Supreme Court case Ex parte Crow Dog, in which the Court …

Learning To Live With The New Foreign Nongrantor Trust Rules, Carlyn S. Mccaffrey, Elyse G. Kirschner

Vanderbilt Journal of Transnational Law

The Small Business Job Protection Act of 1996 (the 1996 Act) was intended to deal a heavy blow to the appeal of foreign trusts to U.S. persons. The results were mixed. On the one hand, the 1996 Act imposes an array of reporting requirements, imposes harsh penalties on failures to comply with these requirements, increases the interest charge imposed on taxes paid on distributions of accumulated income from foreign trusts, treats loans of cash from foreign trusts as distributions, and expands the kinds of gifts that can be treated as indirect transfers from foreign trusts. On the other hand, curiously, …

Self-Settled Spendthrift Trusts: Should A Few Bad Apples Spoil The Bunch?, Gideon Rothschild, Daniel S. Rubin, Jonathan G. Blattmachr

Vanderbilt Journal of Transnational Law

It is unfortunate, but perhaps not terribly surprising, that the first two reported cases to consider the application of conflict of laws principles to self-settled spendthrift trusts both involved "bad facts" from an asset protection planning standpoint. In this regard, the adage "bad facts produce bad law" is not a slight on the courts, but rather an acknowledgment of a court's primary duty to do substantial justice to the parties immediately before it. However, in an effort to do substantial justice to the parties immediately before them, the Portnoy and Brooks courts have forged what may well become the first …

Law For Sale: Alaska And Delaware Compete For The Asset Protection Trust Market And The Wealth That Follows, Amy L. Wagenfeld

Vanderbilt Journal of Transnational Law

For years, U.S. citizens have looked to offshore jurisdictions to create trusts that protect a settlor's assets from the claims of creditors, yet allow the settlor to be named as a beneficiary. United States law and public policy have long been against the idea of allowing a person to enjoy benefits from assets that are simultaneously shielded from creditors' claims. However, despite this existing public policy, Alaska and Delaware have enacted statutes that attempt to do just that. Essentially, these statutes claim to make what used to be possible only offshore, now possible in the United States.

This Note seeks …

Roundtable Discussion, David Aronofsky, Barry S. Engel, Eric Henzy, Gideon Rothschild, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

Welcome to the Roundtable panel discussion. Each of the speakers is going to open with a few minutes statement. And then we're going to pose some questions to open discussion, so it will take people through the whole asset protection route from beginning to end, hopefully. And then, any questions you may have we believe we'll have sufficient time to ask those questions and have them answered. You may get very different views. And then we've just decided that the jury will decide whether asset protection trusts are a good thing or a bad thing. Okay. So pay attention.

Beyond The Caricature: The Benefits And Challenges Of Large-Firm Practice, Mary A. Mclaughlin

Vanderbilt Law Review

I am the arch-villain of Professor Schiltz's article-not just a partner at a big firm, but the Hiring Partner. Because I have spent part of my career in government service and teaching, I may be uniquely positioned to react to Professor Schiltz's article. After get- ting out of law school in 1976, I clerked for a federal judge for a year and then went to a big firm in Washington, D.C. In 1980, became an Assistant United States Attorney, working as a criminal prosecutor for three-and-a-half years. I then went to Vanderbilt Law School where for two years I taught …

On Being A Happy, Healthy, And Ethical Member Of An Unhappy, Unhealthy, And Unethical Profession, Patrick J. Schiltz

Vanderbilt Law Review

Dear Law Student: I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth--and, in the view of many, one of the most unethical. The good news is that you can join this profession and still be happy, healthy, and ethical. I am writing to tell you how. I. THE WELL-BEING OF LAWYERS Lawyers play an enormously important role in our society. "It is the lawyers who run our civilization for us-our governments, our business, our private …

Erisa Preemption Of Medical Malpractice Claims In Managed Care: Asserting A New Statutory Interpretation, Karla S. Bartholonew

Vanderbilt Law Review

Congress enacted the Employee Retirement Income Security Act of 1974 ("ERISA) to protect employee interests and ensure a uniform body of law for pension and benefit plans. The statute's expansive preemption clause and preclusion of extra-contractual damages have since been used to immunize Managed Care Organizations ("MCOs") from liability for patients injuries resulting from medical malpractice. Because plaintiffs with preempted claims may receive only the remedies provided for under ERISA-the right or benefit due under the plan-many injured patients have been left with no meaningful remedy.

"[N]ot a model of legislative drafting,"" the statute's broad preemption clause provides that state …

Resisting The Current, Stephen L. Pepper

Vanderbilt Law Review

The occasion was a faculty lunch with presentations from three members of the local bar. One was a partner at one of the largest and most respected firms in the city. Another was a former student of great ability and charm who had left one of the other large elite firms to form his own small, successful firm. The third, if I recall correctly, practiced with one of the federal agencies. Our purpose was to reinforce contacts with the city's practitioners and learn more concerning their views of contemporary law practice. I remember the two private practitioners more clearly because …

Introduction: Attorney Well-Being In Large Firms, Kent D. Syverud

Vanderbilt Law Review

It took courage for Professor Patrick Schiltz to write the article that opens this symposium issue of the Vanderbilt Law Review. At the Notre Dame Law School, where Professor Schiltz teaches, as at the Vanderbilt University Law School and all elite schools, most graduates go to work in private practice, most often at large law firms. Professor Schiltz's portrayal of lawyers at such firms-as rich, overworked, unhappy, and often unethical--ought to be provocative and profoundly troubling to alumni at Vanderbilt and elsewhere. It will also be troubling to Deans, who struggle mightily each year to convince alumni to give money …

Large Law Firm Misery: It's The Tournament, Not The Money, Marc S. Galanter, Thomas M. Palay

Vanderbilt Law Review

Will young lawyers truly be happier and more fulfiled if they can restrain their appetite for money? Professor Schiltz's wonderful sermon certainly provides a stirring argument in the affirmative. In his eyes, it is greed (or materialism) that has led to the decline of the profession and makes lawyers unhappy. Lawyers' lust for money is at the root of their unhappiness with the profession.' This is broken down into two steps: "[m]oney is at the root of virtually everything that lawyers don't like about their profession: the long hours, the commercialization," etc., etc. And their obsession with money leads lawyers …

Cross-Examining The Myth Of Lawyers' Misery, Kathleen E. Hull

Vanderbilt Law Review

This comment will address one important aspect of Professor Schiltz's broader argument, namely his contention that the legal profession is afflicted with widespread job dissatisfaction. More specifically, Schiltz makes the following assertions about lawyers' unhappiness with their professional lives: (1) dissatisfaction is high; (2) dissatisfaction is increasing; and (3) dissatisfaction is highest among lawyers in private practice in large firms.' Using data from a recent survey of Chicago attorneys as well as other studies of lawyers' job satisfaction, including those cited by Schiltz, I will address each of these points in turn.

Thinking About The Business Of Practicing Law, Michael J. Kelly

Vanderbilt Law Review

The core of Schiltz's argument with which I most disagree is that large firms are all alike, or, to put it in its more modest, plausible, and compelling form, that big firms and big-firm lawyers are be- coming more alike. The claim of what academics call isomorphism-- in this case, that large-firm practices converge ultimately in similarity-- is his principal descriptive claim. It is also the primary rhetorical device that allows Schiltz to attack large law firms as if they were one, to transpose the caricature of the managing partner in his third marriage to all large law practices. Schiltz's …

Working Without Rights: Recognizing Housestaff Unionization--An Argument For The Reversal Of "Cedars-Sinai Medical Center And St. Clare's Hospital", Jennifer A. Shorb

Vanderbilt Law Review

Increased competition in today's health care industry has contributed to the industry's growing emphasis on cost-containment. Concerns about this focus on the bottom line have motivated some caregivers to attempt to improve working conditions and the quality of patient care through unionization. One such group, "housestaff' or "house officers," is comprised of hospital interns, residents, and fellows. These individuals are medical school graduates seeking additional training for licensure and specialization. Housestaff are often overworked, underpaid, and forced to deal with working conditions that adversely affect patient care. Such conditions force many house officers to join union organizations and seek the …

Speaking Truth To Powerlessness, Howard Lesnick

Vanderbilt Law Review

I have offers from three New York firms, and wonder if you can tell me which one is the most prestigious. A third-year student seeking my advice a year or two ago The most striking aspect of Patrick Schiltz's essay is that it directly addresses students. In word (the salutation) and deed (what follows), he speaks, not to the folks who help rule the world (judges, legislators, officials, weighty practitioners, and those rulers-once-or- twice-removed, professors), but to those who are hoping-dare they?-to ascend to some future vacancy in those positions.

Schiltz's message is in two parts: First, he tells students …

The Pursuit Of Happiness, Michael Traynor

Vanderbilt Law Review

Ills that beset our profession are addressed by Professor Patrick Schiltz in the alert he sounds in his lead article, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,' and his earlier article, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Foundation of the Novice Attorney. His articles call for attention and introspection by law students and others in the profession.

The editors invited me to comment because of the transitions I have experienced since graduating from law school in 1960. I agreed, not realizing the extent …