Law Commons^™

Lowering The Filed Tariff Shield: Judicial Enforcement For A Deregulatory Era, Jim Rossi

Vanderbilt Law Review

The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims.

This Article assesses how …

Tendencies Versus Boundaries: Levels Of Generality In Behavioral Law And Economics, Gregory Mitchell

Vanderbilt Law Review

When evidence on the truth or falsity of a proposition is ambiguous and open to multiple interpretations, psychologists warn about "biased assimilation" of the evidence to support pre-existing theories, beliefs, and attitudes. Therefore, when a skeptic about the public policy implications of psychological research examines the complex mix of evidence on human rationality, he may find much to support his skepticism about the use of psychology to reform the law. Likewise, an optimist about the public policy contributions of psychology may find within this same body of evidence much to bolster his optimistic view that psychological research can be used …

War And American Constitutional Order, Mark E. Brandon

Vanderbilt Law Review

In their introduction to a fine new edition of Alexis de Tocqueville's Democracy in America, Harvey C. Mansfield and Delba Winthrop claim that "[i]f the twentieth century has been an American century, it is because the work of America... has been to keep democracy strong where it is alive and to promote it where it is weak or nonexistent." By "democracy" they doubtless intend something akin to "constitutional democracy," "liberal democracy," or "republican government." I take each of these to be a rough proxy for a constitutionalist system that includes (1) institutions authorized by and accountable to the people (both …

Unfit To Serve: Permanently Barring People From Serving As Officers And Directors Of Publicly Traded Companies After The Sarbanes-Oxley Act, Philip F.S. Berg

Vanderbilt Law Review

On June 4, 2003, lifestyle guru Martha Stewart was indicted on multiple criminal and civil charges by the Securities and Exchange Commission (SEC or Commission). The charges, including obstruction of justice and civil insider trading, stemmed from Stewart's sale of ImClone stock shortly before the Food and Drug Administration rejected a drug produced by ImClone and sent the company's stock price tumbling. Although Stewart could face a number of serious penalties under her criminal indictment, the primary remedy sought by the SEC for her civil insider trading charges is rather uncommon-a bar from serving as a director of Martha Stewart …

Chicago Man, K-T Man, And The Future Of Behavioral Law And Economics, Robert A. Prentice

Vanderbilt Law Review

Most law is aimed at shaping human behavior, encouraging that which is good for society and discouraging that which is bad.' Nonetheless, for most of the history of our legal system, laws were passed, cases were decided, and academics pontificated about the law based on nothing more than common sense assumptions about how people make decisions. A quarter century or more ago, the law and economics movement replaced these common sense assumptions with a well-considered and expressly stated assumption-that man is a rational maximizer of his expected utilities. Based on this premise, law and economics has dominated interdisciplinary thought in …

When One Parent Goes And The Other Parent Stays: The Inconsistency And Inequity Of Guaranteeing Absent Parents Permanent Parental Rights, Wendee M. Hilderbrand

Vanderbilt Law Review

It is well settled that the right to make decisions concerning the upbringing of one's children is a fundamental right deserving the utmost constitutional protection from unreasonable state interference. It has also become increasingly well settled over the past twenty-five years that this right is not automatically and permanently guaranteed by biology. Rather, parental stature encompasses both "rights and responsibilities," and the rights are only guaranteed to a parent who has assumed parental responsibilities. Why then is a responsible custodial parent subject to state interference with his or her parental decisions in the interest of guaranteeing an absent parent, who …

Makes Sense To Me: How Moderate, Targeted Federal Tort Reform Legislation Could Solve The Nation's Asbestos Litigation Crisis, Mark H. Reeves

Vanderbilt Law Review

During the three decades he spent working as a machinist for the United States Navy, Henry Plummer suffered continuous exposure to the asbestos used in the insulation, gaskets and pipe coverings of warships. In late 1999, a biopsy confirmed that he had developed mesothelioma, a gruesome type of cancer that kills all those who contract it and is caused only by asbestos. In an effort to combat his cancer, Mr. Plummer embarked on a long, painful course of treatments that included chemotherapy and the removal of his left lung in April 2000. In early 2001, however, Mr. Plummer's doctor informed …

Fetal Surgery And Wrongful Death Actions On Behalf Of The Unborn: An Argument For A Social Standard, Jonathan D. Stanley

Vanderbilt Law Review

Imagine a young couple in the not-too-distant-future who are eagerly awaiting the birth of their first child. During the eighteenth week of the pregnancy, the mother has an ultrasound performed to detect possible developmental problems with the child. To their dismay, the ultrasound reveals a malformation in the fetus. The defect will not be fatal, but if left untreated will cause the child severe breathing problems once born. The problem can be fixed with surgery after birth, but such a procedure will result in disfiguring facial scars. After thoroughly considering their options, which range from an abortion to carrying the …

Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green

Vanderbilt Law Review

Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.

This issue is important for two reasons. First, most federal …

Two Wrongs Don't Make A Right: Medicaid, Section 1983 And The Cost Of An Enforceable Right To Health Care, Mark A. Ison

Vanderbilt Law Review

More than a trillion dollars annually is spent on the health care system .... Despite increases in medical care spending that are greater than the rate of inflation, population growth, and Gross Domestic Product growth, there has not been a commensurate improvement in our health status as a nation .... Despite our Nation's wealth, the health care system does not provide coverage to all Americans who want it. These words capture both the essence of America's public health care dilemma and the frustration felt by many of the lawmakers charged with the duty to solve it. The battle to lower …

Fundamental Retribution Error: Criminal Justice And The Social Psychology Of Blame, Donald A. Dripps

Vanderbilt Law Review

At least since the M'Naghten case of the 1840s,' Anglo- American criminal law has concerned itself closely, famously, and contentiously with the psychology of the accused. Another significant body of scholarship addresses the psychology of juries, and other valuable research has approached some of the rules of criminal evidence from the perspective of social and cognitive psychology. There has, however, yet to be a general investigation of what social cognition research might teach us about the criminal law's pervasive concern with blameworthiness.

This Article undertakes that investigation. It brings research on the psychology of social cognition to bear on the …

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

Vanderbilt Law Review

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

Resuscitating The National Resident Matching Program: Improving Medical Resident Placement Through Binding Dual Matching, Melinda Creasman

Vanderbilt Law Review

People outside the medical profession have likely heard of the long hours that doctors keep, but are probably unaware of the low salaries and nonnegotiable contracts that medical school graduates must accept upon entering a residency program. In fact, young doctors are among the few professionals who do not find postgraduate employment in the open job market. Currently, fourth-year medical students seeking postgraduate residency training participate in a process that matches them to a single residency program. This match dictates where the new doctor will spend the next three to seven years of her career. Upon receiving a match, the …

Foreword, Stephen M. Schwebel

Vanderbilt Journal of Transnational Law

I was glad to return to Vanderbilt Law School to take part in this Symposium on International Commercial Arbitration. I came because Jon Charney telephoned me last autumn to ask me to come. Jon Charney was a superb international lawyer and a splendid human being. He became a reigning expert on the Law of the Sea. But his interests in international law were wider than that wide subject. He wrote, for example, on the proliferation of international tribunals and on the position of the persistent objector in international law with exceptional acuity and insight.

Jon's professional accomplishments were increasingly large. …

The Difference Between Truth And Truthfulness: Objective Versus Subjective Standards In Applying Rule 5c1.2, Molly N. Van Etten

Vanderbilt Law Review

The drafters of the Violent Crime Control and Law Enforcement Act of 19941 sought to mitigate the effects of harsh mandatory minimum sentences for defendants who play minor roles in nonviolent drug crimes by creating a "safety valve" provision. This provision offers first-time offenders a way out of mandatory minimum sentences based on their minor participation in drug-related federal crimes. Typically, these first-time offenders are "mules," people asked or hired by drug dealers to transport drugs. According to the provision, defendants are eligible for relief if, among other requirements, they "truthfully provid[e] to the government all information and evidence the …

Comparative Fault To The Limits, Ellen M. Bublick

Vanderbilt Law Review

Comparative-fault defenses rarely attract much public attention. However, a recent lawsuit highlighted the subject. In a suit filed against the archdiocese of Boston stemming from an ongoing sexual abuse scandal, Cardinal Bernard Law asserted that a boy who had been abused by a priest from the time that he was six years old to the time that he was thirteen years old was himself guilty of comparative fault. The defense became the subject of immediate public scrutiny. Commentators described the defense with adjectives ranging from "reprehensible," "appalling," and "not sensitive," to "legalese," "boilerplate," "standard," and even "necessary.'"

The Cardinal's defense, …

Resolving The Patent-Antitrust Paradox Through Tripartite Innovation, Michael A. Carrier

Vanderbilt Law Review

The issues presented by-the intersection of the patent system and the antitrust laws have never been as pressing as they are today. The number of issued patents is skyrocketing. Companies are more frequently entering into arrangements with competitors not only to recover their investment from creating patented products but also to avoid the patent landmines that line the path of innovation. They form patent pools for laser eye surgery, MPEG-2 video compression technology, and DVD formatting; enter into alliances, mergers, and settlements in the biopharmaceutical industry; refuse to license their patented products in various industries; and cross-license their patents in …

Life After Death Row: Preventing Wrongful Capital Convictions And Restoring Innocence After Exoneration, Jean C. Blackerby

Vanderbilt Law Review

In Gregg v. Georgia, the Supreme Court overturned its ruling in Furman v. Georgia and held that the death penalty, as administered by the states, was not per se "cruel and unusual punishment" in violation of the Eighth Amendment.' Yet errors continue to occur at an alarming rate in the capital punishment system-over one hundred death row inmates have been released pursuant to evidence of actual innocence since 1973. Indeed, the number of death row exonerations has been steadily increasing in recent years.

Of those exonerations, DNA testing played a substantial role in twelve. Many more have benefited from the …

Just What The Doctor Ordered: The Admissibility Of Differential Diagnosis In Pharmaceutical Product Litigation, Wendy Michelle Ertmer

Vanderbilt Law Review

In the decade since Daubert v. Merrell Dow Pharmaceuticals Inc., federal judges have exercised their role as gatekeepers of expert witness testimony to evaluate many different categories of scientific evidence. They have not done so without controversy, however. Because the element of causation in pharmaceutical product litigation is frequently dispositive, the application of Daubert to scientific evidence of causation has been particularly contentious. Plaintiffs in such cases must prove both general causation-that the product is capable of causing an injury of the type from which the plaintiff suffers-and specific causation-that the product was the actual cause of the plaintiffs injury. …

Public Independent Fact-Finding: A Trust-Generating Institution For An Age Of Corporate Illegitimacy And Public Mistrust, R. William Ide Iii, Douglas H. Yarn

Vanderbilt Law Review

Public distrust in the wake of corporate scandals caused corporate legitimacy crises for the companies involved and for the marketplace as a whole. The loss of trust has contributed to an environment in which traditional responses to allegations of wrongdoing and incompetence are less effective. Alternatively, organizations engage in "Public independent fact-finding" ("PIFF") by hiring public figures with reputations for integrity to conduct internal investigations and to report their findings to the public. This Article describes the role played by trust, reputation, and social legitimacy in the health of organizations and examines corporate legitimacy crises and traditional responses. Identifying factors …

Promoting Intellectual Property For Economic Growth, Rita Hayes, Ambassador

Vanderbilt Journal of Transnational Law

The World Intellectual Property Organization, based in Geneva, is a specialized agency of the United Nations that deals with international intellectual property matters. The Organization is perhaps best known for international agreements such as the Patent Cooperation Treaty (the PCT), The Madrid Agreement, and the Hague Agreement, which provide international registration and protection for patents, trademarks, and industrial designs, respectively.

The Organization's work in standard setting--through the development of international intellectual property law--covers the range of intellectual property from industrial property to copyright. Many of you are familiar with the WIPO Internet Treaties, two international treaties that came into force …

Securities Fraud As Corporate Governance: Reflections Upon Federalism, Robert B. Thompson, Hillary A. Sale

Vanderbilt Law Review

State law gives corporate managers extremely broad power to direct increasingly large pools of collective business assets. Not surprisingly, economic incentives, norms, markets, and law all work to constrain the breadth of the power and the potential for abuse of what is other people's money.' State corporate law has occupied the center stage in the legal portion of this landscape, with federal securities law playing a supporting role-at least in the academic presentation of the debate. The New Deal's securities legislation eschewed a general federal corporations statute in favor of a more focused federal role emphasizing disclosure and antifraud protections …

Competing For The People's Affection: Federalism's Forgotten Marketplace, Todd E. Pettys

Vanderbilt Law Review

In recent years, the United States Supreme Court frequently has invoked federalism principles when reviewing federal legislation but has failed to articulate an overarching vision of federal-state relations. The Court has relied instead on seemingly disparate premises, including a local-national distinction that some believe is disingenuous, notions of "commandeering" and political accountability that some believe are poorly rationalized, and a conception of state dignity that critics charge is ill suited for a nation in which the people are sovereign. The Court does occasionally recite the perceived benefits of federalism, but those benefits are framed at such a high level of …

The Emperor Has No Clothes: A Critique Of Applying The European Union Approach To Privacy Regulation In The United States, David R. Nijhawan

Vanderbilt Law Review

Internet users in the United States and the European Union ("EU") often debate the state of international data privacy, while scholars and companies also present questions to the Internet community regarding the regulation of data privacy and the amount of regulation required in the U.S. Inquiries range from how to determine the necessary degree of regulation and how to implement regulations to how to enforce any regulations that the U.S. lawmakers may pass. Historically, the EU and the U.S. approach data privacy regulations in diametrically opposed ways. While the EU relies primarily on legislation and heavy regulation, the U.S. has …

Pressing Precaution Beyond The Point Of Cost-Justification, Gregory C. Keating

Vanderbilt Law Review

Years ago, Bruce Ackerman contrasted two competing perspectives on law, that of the "ordinary observer" and that of the "scientific policymaker."' The perceptions and discourse of the "ordinary observer," Ackerman explained, start from the common practices and language of laymen. The "scientific policymaker" takes the realization of particular objectives-efficient precaution against risks of accidental injury and death, for example-as her end and uses the law as an instrument toward that end. Clashes between these two perspectives are endemic to our legal culture. Nowhere in the law of accidents is that conflict sharper than in cases where the risks imposed threaten …

Silence Of The Lambs: Are States Attempting To Establish Religion In Public Schools?, Linda D.W. Lam

Vanderbilt Law Review

The proper role of religion in public schools has been a topic of bitter debate for many years. While one group of individuals believes that there should be a complete separation of church and state, another group believes that religion should have an integral place in public education. Although both groups have looked to the circumstances surrounding the enactment of the First Amendment to support their respective positions, each has been unable to find clear, definitive support regarding the appropriate relationship between religion and public schools, as there was no public education system at that time. One major issue that …

Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler

Vanderbilt Law Review

The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …

Books Received, Journal Editor

Vanderbilt Journal of Transnational Law

THE DISCONNECTED By Penn Kimball New York: Columbia University Press, 1972.Pp. 317. $2.95/Paperback

PUBLIC ADMINISTRATION (2d ed.). Edited by Robert T. Golembiewski, Frank Gibson & Goeffrey Y. Cornog, Chicago: Rand McNally & Company, 1972. Pp. xxxix, 617.$6.95/Paperback

THE AUSTRIAN-GERMAN ARBITRAL TRIBUNAL By Ignaz Seidl-Hohenveldern Syracuse:Syracuse University Press, 1972. Pp. xi, 261. $15.00.

CONSTITUTIONAL RIGHTS OF PRISONERS By John W. Palmer Cincinnati: The W.H.Anderson Company, 1973. Pp. xv, 710.

CONSTITUTIONAL RIGHTS OF THE ACCUSED: PRETRIAL RIGHTS By Joseph G. Cook Rochester: The Lawyer's Co-operative Publishing Company, 1972. Pp. ix, 572. $35.00.

CRIMINAL SENTENCES: LAW WITHOUT ORDER By Marvin E. Frankel New …

Business Litigation And Cyberspace: Will Cyber Courts Prove An Effective Tool For Luring High-Tech Business Into Forum States?, Jacob A. Sommer

Vanderbilt Law Review

From beginning to end businesses are wed to the law. The life of a corporation typically begins with the filing of articles of incorporation with the secretary of state' and ends with either a merger into another corporation or dissolution. At every point in a corporation's life cycle, the American legal system places its imprimatur on the corporation's activities and governance. Inevitably, because of the sophisticated nature of business and frequent encounters with the law, businesses become engaged in their fair share of litigation and must resort to the judicial system for resolution.

Business, especially high-tech business, moves very quickly, …

Fishing For Clarity In A Post-Hubbell World: The Need For A Bright-Line Rule In The Self-Incrimination Clause's Act Of Production Doctrine, Thomas Kiefer Wedeles

Vanderbilt Law Review

Americans have always taken particular pride in the right to be free from government intrusion into their homes and, metaphysically speaking, their minds. The authors of the Bill of Rights carved out this protective zone in the Fourth and Fifth Amendments to the United States Constitution.' While modern Fourth Amendment protection has most often been interpreted as a privacy-based protection, the Fifth Amendment's Self-Incrimination Clause protects against government compulsion to implicate oneself in the commission of a crime. The development of the Fifth Amendment privilege reflects many of this nation's "fundamental values and most noble aspirations." These values and aspirations …