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Articles 1 - 30 of 77
Full-Text Articles in Law
Implied Covenants In Oil And Gas Law Under Federal Energy Price Regulation, Jacqueline L. Weaver
Implied Covenants In Oil And Gas Law Under Federal Energy Price Regulation, Jacqueline L. Weaver
Vanderbilt Law Review
This Article seeks to determine whether the federal pricing regulations have imposed new duties on the lessee in his relationship to a lessor, and, if so, the nature, scope, and consequences of those duties. The Article contends that the federal pricing schemes in oil and gas will lead to a renaissance of certain implied covenants that the law has traditionally recognized--albeit now framed in a new setting. The Article focuses on those issues that are likely to require resolution under both the implied covenant to market and the less well-known implied covenant to seek favorable administrative action.
Products Liability - An Analysis Of Market Share Liability, David A. Fischer
Products Liability - An Analysis Of Market Share Liability, David A. Fischer
Vanderbilt Law Review
This Article examines the market share liability theory to determine whether it can achieve the objective of treating both parties fairly. Although courts in the past have relaxed the plaintiff's burden of proof on the element of causation in fact, the question remains whether this relaxation is appropriate in DES cases, and,if so, whether market share liability is the most equitable method of implementing the relaxation. This Article suggests that the market share liability theory contains several serious flaws that render it unsuitable as a means for allowing plaintiffs to recover in DES cases. The Article criticizes the theory for …
Inflation And The Concept Of Reorganization Value, Elizabeth J. Schwartz
Inflation And The Concept Of Reorganization Value, Elizabeth J. Schwartz
Vanderbilt Law Review
This Recent Development examines the validity of this formula, with and without allowances for future inflation, as a tool for valuing the stock to be distributed to creditors in corporate re-organization proceedings. This discussion considers the valuation method both under Chapter 11 of the new Bankruptcy Code and under Chapter X of the now superseded Bankruptcy Act, which is still effective in many pending cases. The Recent Development describes the purpose and effects of equity share valuations in bankruptcy reorganization proceedings, compares the methods that have been used by the courts with methods used by investors to ascertain the investment …
Internal Revenue Service Summonses For "Sensitive"Accountants' Papers, Robert G. Nath
Internal Revenue Service Summonses For "Sensitive"Accountants' Papers, Robert G. Nath
Vanderbilt Law Review
Every modern public corporation has obligations of accountability and disclosure to the public and to its shareholders. These accepted duties of disclosure, however, become the source of conflicts when government agencies make unanticipated inquiries of accountants about otherwise private or background data concerning the corporations they audit. This is particularly true when a public corporation's duties of financial accountability, which stem chiefly from securities law requirements and fiduciary duties,evoke the Internal Revenue Service's interest in information that may reveal or be probative of the corporation's tax liability. Most corporate taxpayers and their accountants understand and accept--if only reluctantly--their obligations to …
Witness For The Defense: A Right To Immunity, Robin D. Mass
Witness For The Defense: A Right To Immunity, Robin D. Mass
Vanderbilt Law Review
This Note has outlined various constitutional arguments that the criminal defendant can invoke in support of an application for witness immunity.First, the Note relies on the Supreme Court's decision in United States v. Nixon for its argument that courts should use a flexible separation of powers approach in the context of witness immunity grants. While the Nixon Court accepted the notion that separation of powers protects the decision making authority of the individual branches of government from infringement by the other branches, it observed that the doctrine does not enforce an absolute executive privilege. Thus, the separation of powers doctrine …
Fraud In Commodity Futures Trading--An Examination Of The Investor's Remedies, Lisa G. Demartini
Fraud In Commodity Futures Trading--An Examination Of The Investor's Remedies, Lisa G. Demartini
Vanderbilt Law Review
This Note examines the various avenues of redress available to the defrauded commodity futures investor. Initially, an examination of two remedies expressly provided in the Commodity Exchange Act (CEA)--reparations and arbitration--demonstrates their current inefficiencies and inadequacies. Next, the Note considers the possibility of recovery under the antifraud provision of the Securities Exchange Act and argues that such a cause of action should still be available when the investor can show that the particular discretionary trading account is a security." Finally, a discussion of an implied private right of action for violations of the antifraud provision of the CEA reveals much …
Social Order And The Limits Of Law: A Theoretical Essay, Arthur S. Miller
Social Order And The Limits Of Law: A Theoretical Essay, Arthur S. Miller
Vanderbilt Law Review
Professor Jenkins maintains that Americans demand that "the law solve all of [their] problems and secure all of [their] purposes." The result is that we "so overload the legal apparatus that it short circuits, creating a spectacular display of fireworks but affecting nothing save its own wreckage."' That assertion, even if only partially accurate, merits close and continuing attention. Jenkins' analysis of that hypothesis--that proposition-is at once thought-provoking and illuminating. We are all in his debt for having written such a challenging book, even though I have some fundamental disagreements with how he develops that theme. Jenkins' work is a …
Burdens Of Pleading And Proof In Discrimination Cases: Toward A Theory Of Procedural Justice, Robert Belton
Burdens Of Pleading And Proof In Discrimination Cases: Toward A Theory Of Procedural Justice, Robert Belton
Vanderbilt Law Review
If the national policy of eliminating discrimination is to be achieved, the courts--to whom the major responsibility for effectuating this goal is delegated--must establish a coherent framework for allocating the burdens of pleading and proof that provides "a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination."' The purpose of this Article, therefore, is to propose such a coherent approach to the allocation of the burdens of pleading and proof in discrimination cases. Towards this end, part II of the Article examines the definitional and operational effect of …
The Fourth Amendment And The "Legitimate Expectation Of Privacy", Gerald G. Ashdown
The Fourth Amendment And The "Legitimate Expectation Of Privacy", Gerald G. Ashdown
Vanderbilt Law Review
This Article does not endeavor to engage in a debate over the efficacy or deterrent effect of the exclusionary rule.' Nevertheless, it should be noted that these decisions appear questionable. It seems clear that a refusal to apply the rule in cases of particular fourth amendment transgressions will produce no incremental deterrence of unlawful police conduct, and inconsistent application of the rule arguably could diminish whatever deterrent value does exist.Therefore, if deterrence is viewed as the primary--if not only-function of the exclusionary rule, that goal should be promoted through thorough and consistent application of the rule.The Supreme Court, however, has …
Redefining Government's Role In Health Care: Is A Dose Of Competition What The Doctor Should Order?, James F. Blumstein, Frank A. Sloan
Redefining Government's Role In Health Care: Is A Dose Of Competition What The Doctor Should Order?, James F. Blumstein, Frank A. Sloan
Vanderbilt Law Review
Throughout the 1970s, the two major political parties espoused some form of national health insurance. Faced with a fiscal squeeze, however, the Carter Administration gave national health insurance a relatively low priority.The political movement for comprehensive national health insurance rests on an ideological commitment that the federal government should underwrite the cost of providing universal access to medical services. The objective is essentially redistributive in nature: equitable concerns for the disadvantaged loom as the major focus. The selective expansion of coverage to encompass those identified as needy and worthy, but only those so identified, is anathema to those who traditionally …
Health Professionals' Access To Hospitals: A Retrospective And Prospective Analysis, Jane L. Davis
Health Professionals' Access To Hospitals: A Retrospective And Prospective Analysis, Jane L. Davis
Vanderbilt Law Review
The professional interdependence of the hospital institution and practicing physicians is a phenomenon of post-World War II society. This Note first examines the historical development of that interdependence and explores its erosion into a hospital-dominant mode. Next it examines the most important forces that influence and complicate the question of hospital privileges for the physician within the modern hospital: the interrelated pressures of intraprofessional restraints, pertinent government regulation, and medical technology. Then it sketches the internal procedures that have engendered and defined the relationship between physician and hospital, with special attention to the weaknesses within the procedures that have led …
Medical Care And Procompetitive Reform, T. R. Marmor, Richard Boyer, Julie Greenberg
Medical Care And Procompetitive Reform, T. R. Marmor, Richard Boyer, Julie Greenberg
Vanderbilt Law Review
It is not the purpose of this Article to reject all features of procompetitive proposals. Competitive health plans, multiple health plan choice, provider and consumer cost consciousness, and antitrust activity all may have some place in a larger strategy to rationalize the medical care system. Each of the proposals has some advantages in terms of increasing consumer choice and altering the balance of power between existing actors. As an approach to universal medical care system reform, however, competition alone is inadequate. In fact, one could argue that the most technically feasible way to both rationalize the medical care system and …
Competition Versus Regulation In Medical Care: An Overdrawn Dichotomy, Randall R. Bovbjerg
Competition Versus Regulation In Medical Care: An Overdrawn Dichotomy, Randall R. Bovbjerg
Vanderbilt Law Review
This Article discusses these issues in considering the "competitive" approach to reforming medical care financing and delivery.Although the approach is an extremely promising one, strongly held individual and social values underlie the current system, and powerful private interests have a stake in the status quo. Reforms,therefore, may never be fully implemented or realize their theoretical potential in practice. In any case they will take some time to work; no approach can be an immediate panacea. If government is to embark upon a "procompetitive" course, it needs to proceed carefully. Especially during the transition to a more competitive system, we need …
Competition In Health Services:Overview, Issues And Answers, Clark C. Havighurst
Competition In Health Services:Overview, Issues And Answers, Clark C. Havighurst
Vanderbilt Law Review
This Article is intended to put in context the many issues raised by this new interest in competition as a disciplinary force in the health services industry. After presenting a statement of the general theory supporting increased reliance on market forces, the Article turns to the key arguments advanced against that theory. The issues are many and complex, and the Article makes no attempt to treat them exhaustively. Rather, the aim is to highlight the weak as well as the strong points for and against competition in a manner that focuses the controversy and clarifies the issues. Until very recently, …
The Public Interest And Governing Boards Of Nonprofit Health Care Institutions, Robin Dimieri, Stephen Weiner
The Public Interest And Governing Boards Of Nonprofit Health Care Institutions, Robin Dimieri, Stephen Weiner
Vanderbilt Law Review
This Article specifically considers whether the existing legal system permits corporate governance mechanisms to function in a manner that promotes the public interest, particularly the public's interest in disclosure and participation in institutional policy development. The Article focuses on the viability of corporate governance structures in the health care industry, with special emphasis on the nonprofit hospital corporation. The Article begins with an overview of the issue of role reversal between management and directors of nonprofit corporations.The manifestations of role reversal are seen in the trend in non-profit corporations toward excessive delegation of board powers to executive committees, the elimination …
Antitrust Scrutiny Of The Health Professions: Developing A Framework For Assessing Private Restraints, Robert F. Leibenluft, Michael R. Pollard
Antitrust Scrutiny Of The Health Professions: Developing A Framework For Assessing Private Restraints, Robert F. Leibenluft, Michael R. Pollard
Vanderbilt Law Review
This Article has suggested that courts adopt an intermediate level of scrutiny, between per se and Rule of Reason analysis. Under this analysis, a rebuttable presumption of illegality attaches to those practices which in other contexts are per se illegal. The weight of this presumption varies with the familiarity of the court with the restraint, its similarity to traditional per se conduct, and the strength of the procompetitive justification.This analytical approach is desirable for two reasons. First,courts are reluctant to apply commercial per se rules of illegality to professional restraints, and with good reason. Professional practices do differ from purely …
Health Care, Markets, And Democratic Values, Rand E. Rosenblatt
Health Care, Markets, And Democratic Values, Rand E. Rosenblatt
Vanderbilt Law Review
Proposals to restructure the health care industry by increasing market competition currently have much political and academic momentum. Whether such proposals will work necessarily depends in part upon the criteria for success that are applied. Viewed from the market perspective, the question is whether procompetitive reforms will achieve their stated goals of containing costs, increasing efficiency, and enhancing consumer sovereignty over health care decisions. From a broader perspective, other questions are also of concern: whether increased competition in health care will actually improve people's health, and whether the operations and effects of health care competition are consistent with important values …
The Uniform Gifts To Minors Act:A Patent Ambiguity, Margaret M. Mahoney
The Uniform Gifts To Minors Act:A Patent Ambiguity, Margaret M. Mahoney
Vanderbilt Law Review
The current treatment of uniform gifts as creating interests in only one person for gift tax purposes, and as creating interests in others as well for income and estate tax purposes, is inappropriate. Resolution of the underlying ambiguity within the Uniform Gifts to Minors Act would produce a more uniform tax treatment. If section 4(b) were modified to state clearly that the custodian is not empowered to use the fund to discharge parental support duties,no change would occur in the gift tax treatment. Income tax liability would be incurred by only the minor donee, the result presumably desired by most …
Damages For Insider Trading In The Open Market: A New Limitation On Recovery Under Rule 10b-5, John B. Grenier
Damages For Insider Trading In The Open Market: A New Limitation On Recovery Under Rule 10b-5, John B. Grenier
Vanderbilt Law Review
The Elkind court's adoption of a "disgorgement measure" of damages for insider trading on undisclosed misrepresented material information in the open market is basically sound. In allowing compensation to the extent practicable, the Second Circuit chose the best solution among the available alternatives. The decision's paramount problems arise in its shifted emphasis to deterrence; the court has neither provided plaintiffs with a sufficient incentive to sue nor created the level of deterrence that some cases might require. Future courts, however, can remedy this situation if they follow Elkind and also award punitive damages in cases in which plaintiffs' losses exceed …
Aesthetic Regulation Under The Police Power: The New General Welfare And The Presumption Of Constitutionality, Beverly A. Rowlett
Aesthetic Regulation Under The Police Power: The New General Welfare And The Presumption Of Constitutionality, Beverly A. Rowlett
Vanderbilt Law Review
This Article will examine the existing methods of analysis employed by courts in reviewing primarily aesthetic regulations, as well as the way in which those methods have been affected by the courts' continually evolving interpretation of the concept of general welfare. The Article argues that in many cases in which regulations based solely or primarily on aesthetic considerations have been upheld, the essential constitutional inquiries have been misdirected. This is because "nonaesthetic" justifications are asserted that either are wholly derived from aesthetic benefits, or have no basis in fact--and need none because of the presumption of constitutionality. Because the more …
Copyright, Congress And Technology: The Public Record, L. Ray Patterson
Copyright, Congress And Technology: The Public Record, L. Ray Patterson
Vanderbilt Law Review
This early history of copyright would be of little more than antiquarian interest except that it demonstrates the source of the confusion regarding the function of copyright. Although generally viewed as a right of the author, copyright has continued to function as a trade regulation device. Before the advent of computers and copying machines, this point was of relatively little importance, but IBM and Xerox have complicated copyright law enormously. Thus, in attempting to isolate the issues, it is helpful to view the law of copyright as statutorily creating unfair competition based on the doctrine of misappropriation. It is both …
The Role Of Warranties And Product Standards In Solar Energy Development, William H. Lawrence, John H. Minan
The Role Of Warranties And Product Standards In Solar Energy Development, William H. Lawrence, John H. Minan
Vanderbilt Law Review
This Article examines the use of warranties and product standards in solar marketing as ways to bring about the needed confidence in and acceptance of solar equipment. The first part of the Article analyzes relevant warranty law from the perspectives of solar sellers and buyers. Some government and private groups have argued that warranties can provide the needed impetus for solar development, and there is thus a great tendency today to view warranties as the means to encourage solar usage. The premise advanced in this part of the Article, however, is that warranty law, operating independently, is unlikely to instill …
Admission To The Bar: A Constitutional Analysis, Ben C. Adams, Edward H. Benton, David A. Beyer, Harrison L. Marshall, Jr., Carter R. Todd, Jane G. Allen Special Projects Editor
Admission To The Bar: A Constitutional Analysis, Ben C. Adams, Edward H. Benton, David A. Beyer, Harrison L. Marshall, Jr., Carter R. Todd, Jane G. Allen Special Projects Editor
Vanderbilt Law Review
This Special Project examines and analyzes selected constitutional challenges to requirements for permanent and temporary admission to the bar. In the area of permanent admission, the Special Project looks at constitutional challenges to three qualifications typically required of bar applicants by states: demonstration of good moral character, successful completion of a bar examination, and residency. In the area of admission "pro hac vice", the Project examines constitutional challenges to the basis on which judges have denied temporary admission to an applicant.
Point, Counterpoint: The Evolution Of American Political Philosophy, William H. Rehnquist
Point, Counterpoint: The Evolution Of American Political Philosophy, William H. Rehnquist
Vanderbilt Law Review
I would suggest to you that during the more than two centuries that have elapsed since the American Revolution, American political philosophy has been notable principally for the contrapuntal themes that rise and fall as the nation matures. Numerous commentators have pointed out that certain ideals have long been widely shared by Americans: individual autonomy, liberty, equality, and a belief in limited, decentralized government.1 But no one would be so bold as to describe the present government of the United States as embodying those ideals. We have a strong national government that, with occasional lapses, impinges more and more on …
The Interface Of Myth And Practice In Law, Frederick Schauer
The Interface Of Myth And Practice In Law, Frederick Schauer
Vanderbilt Law Review
This Article has analyzed and critiqued the myth of law as rules and contrasted it with a view of law as a process of responsible decision making. The operational code of this process requires that the lawyer recognize his role as decision maker and the necessary ramifications of personal choice and responsibility inherent in that role. Yet the individual who resists embracing the code, and who seeks instead the holy grail, may only be clamoring for fulfillment of the myth system. If his commitment to the significance of the myth does not impede his education as decision maker or his …
Discharge Of Supervisors For Union-Related Activity: An Examination Of "Pattern Of Conduct" Analysis, Michael L. Dagley
Discharge Of Supervisors For Union-Related Activity: An Examination Of "Pattern Of Conduct" Analysis, Michael L. Dagley
Vanderbilt Law Review
Recent Board decisions such as Brothers Three Cabinets suggest that the Board has frequently contravened congressional intent by extending the protection of the Act to cover supervisors. This Note begins with an examination of the legislative history of the Taft-Hartley Amendments, focusing upon the congressional intent behind the exclusion of supervisory personnel from the protection normally afforded employees under the Act. The Note then traces the historical development of supervisory discharge law and analyzes the development of the "pattern of conduct" standard. Finally, the Note investigates the inherent analytical problems with the "pattern of conduct" standard, examines the inconsistent application …
Categories And The First Amendment: A Play In Three Acts, Frederick Schauer
Categories And The First Amendment: A Play In Three Acts, Frederick Schauer
Vanderbilt Law Review
In the foregoing pages I have attempted to flesh out three different aspects of what has been broadly called "categorization."Implicit in this project is the premise that it is often quite revealing to search for important differences in the face of superficial similarity. Very often, however, when we search for differences we may discover additional points of similarity that are not at first apparent. This seems to be the case here, in that one recurrent feature is what one might inelegantly call "learnability." The concept of learnability is comprehensible only in the con-text of a separation of roles.' Thus, if …
Motor Carrier Act Of 1980: Toward Compensating Trucking Companies For The Loss Of The Monopolistic Value Of Their Operating Rights, Mary H. Leech
Motor Carrier Act Of 1980: Toward Compensating Trucking Companies For The Loss Of The Monopolistic Value Of Their Operating Rights, Mary H. Leech
Vanderbilt Law Review
This Note examines the historical background and nature of the operating rights acquired by the trucking companies, with emphasis on those rights issued to a common carrier by the ICC and represented by a certificate of public convenience and necessity(certificate). The Note then examines and analyzes the tax law and the judicial response to attempts by taxpayers to deduct from gross income the loss of a monopolistic right. Finally, the Note explores alternate theories for compensating trucking companies for their losses and concludes with a recommendation of the most equitable method of compensation.
Before The Best Interests Of The Child, Douglas J. Besharov
Before The Best Interests Of The Child, Douglas J. Besharov
Vanderbilt Law Review
This book has been hard to criticize for one who, like this reviewer, agrees with its basic premises: (1) that the weakness of child protective capability requires a policy of minimum state intervention into family life, and (2) that when intervention occurs,it should be much more decisive. Yet, application of the rules that the authors suggest would be at great cost, not only to the endangered children whom they exclude from protection, but also to our own view of ourselves. Society cannot turn its back on the real and present suffering of children and still retain its sense of humanity,and …
Prosecutorial Vindictiveness: An Examination Of Divergent Lower Court Standards And A Proposed Framework For Analysis, John J. Cross, Iii
Prosecutorial Vindictiveness: An Examination Of Divergent Lower Court Standards And A Proposed Framework For Analysis, John J. Cross, Iii
Vanderbilt Law Review
The judicial response to the problems posed by the conduct of a prosecutor who brings increased charges against a criminal defendant for exercising his legal rights has not been adequate.Lower federal courts have adopted divergent standards, focusing on whether there exists an appearance of prosecutorial vindictiveness, a realistic likelihood of prosecutorial vindictiveness, or actual prosecutorial vindictiveness. By couching their analyses in terms of the prosecutor's motivations, these courts have ignored the overriding principle of substantive due process, which holds that fundamental constitutional rights should be afforded greater due process protection than nonfundamental rights. This Recent Development submits that courts must …