Law Commons^™

The Parol Evidence Rule: Promissory Estoppel's Next Conquest?, Michael B. Metzger

Vanderbilt Law Review

The parol evidence rule, at first glance, seems to be such a candidate for many reasons. The parol evidence rule has confused" and dissatisfied legal scholars for a long time; for example, Professor Wigmore condemned the rule as "the most discouraging subject in the whole field of evidence."' Bringing the rule within estoppel's domain could simplify the application of the rule,' and legal scholars should appreciate anything that could clarify and rationalize its application. Furthermore, that promissory estoppel already has made substantial incursions into the province of the Statute of Frauds may portend a similar role for promissory estoppel in …

Defending The Citadel: The Dangerous Attack Of "Reasonable Good Faith", Stanley Ingber

Vanderbilt Law Review

This Article presents arguments that are designed to influence the Court's deliberations, to create a basis for critiquing the Court's opinions once rendered, and to provide guidance for state courts, which soon may need to decide whether a good faith exception is consistent with their state constitutions and procedures. To place the subsequent discussion in context, part I of the Article briefly sketches the historical development of the exclusionary rule. Part II develops the general arguments against the exclusionary rule and the specific arguments in favor of a good faith exception. Part III exposes the conceptual flaws of the exception …

Twisting The Purposes Of Discovery: Expert Witnesses And The Deposition Dilemma, Steven D. Parman

Vanderbilt Law Review

The system of discovery that the Federal Rules establish theoretically entitles all parties in civil actions, prior to commencement of trial, to disclosure of all relevant nonprivileged information in he possession of any person. Thus, federal discovery rules should not force litigants to choose between failing to depose a party-opponent's expert witness and thereby preparing inadequately for trial, and deposing the expert witness and consequently risking that opposing counsel will use the deposition against him at trial without the benefit of cross-examination. Part H of this Note reviews common law disagreement over the appropriateness of expert witness discovery and the …

Human Leukocyte Antigen Testing: Technology Versus Policy In Cases Of Disputed Parentage, Patricia B. Blumberg

Vanderbilt Law Review

This Note assumes that the judicial trend of using HLA test results as affirmative evidence" will continue, and accepts the proposal that these results are scientifically reliable.' The Note will focus on the policy considerations and arguments that should affect the admissibility of the HLA blood test as affirmative evidence in various disputed parentage cases.This Note first examines the use of HLA test results to determine the paternity of illegitimate children who do not have a legal father, and concludes that courts should admit the results unconditionally in these circumstances. Second, the Note analyzes the use of the HLA blood …

The First Amendment And Nonpicketing Labor Publicity Under Section 8(B)(4)(Ii)(B) Of The National Labor Relations Act, Lee Goldman

Vanderbilt Law Review

This Article attempts to provide the appropriate constitutional analysis of restrictions on nonpicketing labor publicity. Part II describes the relevant statute and illustrative cases, including the Supreme Court's DeBartolo decision, that have raised but not resolved the first amendment issues concerning nonpicketing labor publicity. The cases focus attention on two restrictions the courts have imposed on nonpicketing labor publicity-the "producer-distributor" and the "for the purpose of" requirements. Part III analyzes the protected status of the nonpicketing labor speech by comparing nonpicketing labor publicity with labor picketing and commercial speech-two areas that bear superficial similarity to nonpicketing labor publicity and that …

A Tax Policy Analysis Of Bob Jones University V. United States, Charles O. Galvin, Neal Devins

Vanderbilt Law Review

This Article questions the tax policy model that the Court articulated in Bob Jones University. The authors believe that the Court's recognition of the primacy of IRS rule making is undesirable because the IRS, as an executive agency, is susceptible to the influence of the incumbent administration's policy objectives. Further, even though the life-tenured status of judges insulates the courts from external political pressures, significant problems a real so present in a model in which the courts occupy a primary role in formulating tax policy. In sum, Congress is better suited than either the courts or the IRS to determine …

Substantial Similarity Between Video Games: An Old Copyright Problem In A New Medium, Steven G. Mcknight

Vanderbilt Law Review

Courts have faced a variety of imaginative arguments advocating that video games not receive copyright protection but unanimously have rejected them. A more difficult copyright issue for courts has been deciding whether one video game illegally has copied another. Of the cases involving illegal video game copying that courts presently have decided, only Atari, Inc. v. North American Philips Consumer Electric Corp." has found copyright infringement by a video game that was not virtually identical to the original game.

Part II of this Recent Development discusses the requirement in copyright infringement actions that, in proving copying, a defendant's allegedly infringing …

Federal Supervision Of State Water Quality Standards Under The Clean Water Act, Jeffrey M. Gaba

Vanderbilt Law Review

Renewed interest in an expanded role for water quality standards in the regulatory scheme has developed recently. This inter-est is due in part to the perception that the use of water quality standards is a particularly "cost-effective" approach to pollution control. At least in theory, water quality standards are set no higher than necessary to achieve the desired environmental goal.Further, as more and more industrial facilities achieve compliance with technology based requirements, attention has begun to focus on additional techniques including water quality standards, for imposing more stringent limitations." Finally, since states set water quality standards a regulatory scheme centered …

Rulemaking Under Section 14(E) Of The Exchange Act: The Sec Exceeds Its Reach In Attempting To Pull The Plug On Multiple Pro Ration Pools, David J. White

Vanderbilt Law Review

This Recent Development first considers the problems that gave rise to the adoption of revised rule 14d-8, the rationale that three members of the Commission articulated in support of the rule,' and the rationale of the two members who opposed it. The Recent Development then examines two judicial decisions, one that considers the validity of the current tender offer practices under the Williams Act and rule 14d-8'8 and another that analyzes the rule making authority of the SEC under sections 14(e) and 23(a) of the Exchange Act. Relying primarily upon congressional hearings and debates,' the Recent Development next discusses the …

Alternative Approaches To Valuing The Health Impacts Of Accidents: Liability Law And Prospective Evaluations, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The task of valuing accidental injuries and deaths is intrinsically difficult for two reasons. First, unlike standard consumer commodities, individual health is not traded explicitly on the market. It may be traded implicitly as with wage premiums for risky jobs, but these implicit prices must be estimated statistically. The second problem is that the value one places on any economic commodity depends on the welfare one can derive from it. Since adverse health effects influence the welfare one can obtain from any given level of income, the value of one's health status depends on the context in which such values …

First Amendment Protection Of Artistic Entertainment: Toward Reasonable Municipal Regulation Of Video Games, John E. Sullivan

Vanderbilt Law Review

This Note proposes that video game software, the driving force of all video game entertainment, is an artistic creation of a video game designer. Because the United States Supreme Court repeatedly has recognized that artistic expression and entertainment are forms of expression that the first amendment protects, video game software deserves first amendment protection. Video game software is the "heart and soul"" of the video game, and first amendment protection, therefore, also should blanket the game itself. Accordingly, free "speech" liberties give video game manufacturers, distributors, and operators a fundamental right to purvey the protected expression; and the public a …

Frameworks For Analyzing The Effects Of Risk And Environmental Regulations On Productivity, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The existence of a negative relationship between the regulatory burden and capital investments, and consequently productivity,is not controversial. A conventional model of this type is developed in Section I. If, however, these regulations change over time and firms' investment decisions are irreversible, there will be additional distortions, as shown in Section II. In Section III, I show that uncertainty regarding these regulatory changes exacerbates the adverse productivity effects even for risk-neutral firms.

Global Governance Of Global Networks: A Survey Of Transborder Data Flow In Transition, Anne W. Branscomb

Vanderbilt Law Review

This Article's examination of the development of the international system of information exchange limits its inquiry to transnational transport of computer generated and machine readable digital data via electronic transmission. This definition includes voice,image, characters, and other symbols transported by satellite, microwave, cable, or conventional radio in a converged digital bitstreams that does not discriminate between types of communications services. These delivery systems now are called integrated services digital networks (ISDNs) The last part of the Article examines the legal environment in which these networks currently are developing.

National Labor Relations Act: The Roles Of The Nlrb And The Courts Of Appeals After Pullman-Standard In Determining Employer Motivation In Section 8 (A)(3) Dual Motive Cases, William E. Anderson

Vanderbilt Law Review

This Note advocates use of the Pullman-Standard Title VII model to define the proper roles of the Board and the courts of appeals in determining discriminatory intent in section 8 (a)(3) dual motive cases. Part II of this Note discusses the current confusion concerning the amount of discretion a court of appeals owes the Board's finding of discriminatory intent in dual motive cases. Part II also traces the Supreme Court's failure to define clearly the proper roles of the Board and the courts of appeals in finding discriminatory intent, the confusion this failure has caused, and the Board's unsuccessful attempt …

Markets For Money -- Does The Garn-St.Germain Money Market Deposit Account Overcompete With Mutual Funds, Betty R. Turner

Vanderbilt Law Review

Since 1980 the financial marketplace has experienced a period of rapid evolution during which financial institutions have abandoned their differentiated product and service lines, within government regulatory limits, to compete with each other in obtaining funds from depositors and investors. For example, only commercial banks historically provided checking account services; now, many depository and nondepository institutions offer transaction services similar to checking accounts. The thrift institutions --savings and loan associations, mutual savings banks, and credit unions -- provide their customers with "checking" account services through negotiable order of withdrawal (NOW) accounts and share draft accounts. Investment banking houses, nondepository institutions,introduced …

Independent Political Action Groups: New Life For The Fairness Doctrine, Charles D. Ferris, L. Gregory Ballard

Vanderbilt Law Review

During the past decade, independent political action committees (PACs) have grown dramatically as an alternative source of funding for political candidates. Congress and many commentators have expressed fear over the potential political power of these independent expenditure groups, which are not accountable to political parties. In their Article Messrs. Ferris and Ballard argue that the political broadcasting laws, particularly the Fairness Doctrine, serve as essential barriers to PACs' attempts to dominate the political process through unrestricted spending on political advertising. Although some critics have denounced the Fairness Doctrine, which requires broadcasters to provide balanced coverage of controversial issues, as outdated …

Cable Franchising And The First Amendment, William E. Lee

Vanderbilt Law Review

In awarding and regulating cable franchises, cities often extract from cable operators promises and conditions such as access channels in exchange for exclusive use of public rights-of-way. Professor William Lee in this Article argues that this cable franchising process violates the first amendment rights of cable operators. Professor Lee rejects the two rationales for municipal cable regulation by contending that cable is not a natural monopoly in every market and that cable's use of public rights-of-way requires content neutral regulation. The exacting of conditions such as access channels, however, is not content neutral regulation. Furthermore, censorship decisions that municipalities require …

Cable Television's Emerging Two-Way Services: A Dilemma For Federal And State Regulators, Frank W. Lloyd

Vanderbilt Law Review

Cable television as an entertainment medium has been the subject of various federal, state, and local regulatory schemes since its inception in the 1950's. The introduction of nonvideo two-way cable services that provide a capacity for responsive data and voice transmission between users of the two-way system has renewed interest in the appropriate role of government in the regulation of two-way cable services. Telephone companies in particular have pressed state and federal regulators to identify cable two-way systems as common carriers and to impose on them two-way cable common carrier regulations. In this Article Mr. Frank Lloyd discusses actual and …

Federal And State Roles In Telecommunications: The Effects Of Deregulation, Eli M. Noam

Vanderbilt Law Review

During the past decade, federal telecommunications regulatory policy has changed its focus from a goal of universally available and affordable residential service to one of economic efficiency. In changing its regulatory focus, the federal government has indirectly deprived the states of the means to accomplish their goal, which remains one of insuring universally available and affordable residential service. In his Article Professor Noam examines the evolution of the traditional federal-state coregulatory system, contrasts the emerging federal regulatory approach with the states' policies, and discusses the reasons for federal predominance in telecommunications regulation.He argues that the reorientation in federal regulatory policy …

Federal Regulation Of Emerging Genetic Technologies, Thomas O. Mcgarity, Karl O. Bayer

Vanderbilt Law Review

Over the past ten years scientists have perfected revolutionary techniques in the field of genetic engineering. Although this new technology promises to have enormous commercial and industrial value, some scientists fear that the risks accompanying genetic experimentation may outweigh its social benefits. In their Article Professor McGarity and Mr. Bayer examine the legal debate over how government should regulate this emerging technology. After describing various genetic engineering techniques and the risks underlying their use, Professor McGarity and Mr. Bayer discuss the elements of a regulatory framework adequate to handle the new technology and assess the existing regulatory structure in terms …

The Deductibility Of Daily Transportation Expenses To And From Distant Temporary Work Sites, Michael D. Rose

Vanderbilt Law Review

In the Article Professor Rose addresses the uncertainty that has characterized judicial application of Internal Revenue Code provisions to daily transportation expenses to and from distant temporary work sites. Although the Internal Revenue Code disallows deductions for commuting expenses to and from work, transportation expenses between work sites are deductible. The courts have had some difficulty applying these principles to distant temporary work sites. Professor Rose argues that the United States Tax Court in Turner v. Commissioner has fomented much of this confusion. Although the court reached the correct determination on the facts, its rationale is flawed. According to Professor …

Ethics Inside The Law Firm: Do It My Way Or You're Fired, L. Harold Levinson

Vanderbilt Law Review

Part I of this Book Review examines the two business management models -- the autocratic and the "good" -- that Ewing discusses in his book and concludes that the "good" management model serves well as the basis for the law firm management theory that this Book Review proposes. Part II outlines the provisions of the Model Rules that are relevant to law firm management. Part III introduces this reviewer's theory of the fiduciary duties of law firm partners and their associates. Part IV gives a hypothetical example of two law firm associates who face a series of dilemmas when a …

An Analysis Of The Legal, Social, And Political Issues Raised By Asbestos Litigation, John P. Burns, G. Edward Cassady, Iii, Kenneth B. Cole, Jr., Timothy R. Dodson, Philip E. Holladay, Jr., Paul C. Ney, Jr., Drew T. Parobek, Kimberly Payne, D. Blaine Sanders, L. D. Simmons, Ii, Charles D. Maguire, Jr. Special Project Editor, Laurin Blumenthal Associate Special Project Editor

Vanderbilt Law Review

This Special Project examines the most important issues of the asbestos problem and advocates a congressional solution (1) to relieve the courts of the thousands of present and potential asbestos cases, (2) to protect future claimants' rights to adequate compensation, and (3) to provide for equitable participation by all responsible parties, which, in addition to asbestos manufacturers,include the federal government, insurance companies, and the tobacco industry. The first six parts of the Special Project examine the various issues of asbestos litigation: theories of liability in products liability suits against asbestos manufacturers, causation,defenses, statutory limitations on actions, collateral estoppel, and punitive …

The Causation Issue In Workers'compensation Mental Disability Cases: An Analysis, Solutions, And A Perspective, Lawrence Joseph

Vanderbilt Law Review

Cases under workers' compensation systems that concern mental disabilities present special problems in the determination of causation. In this Article Mr. Joseph argues that the complexities inherent in a decision whether a mental disability has arisen out of employment force administrative agencies and courts in these cases to engage in normative evaluative inquiries. These inquiries, according to Mr. Joseph, result in findings that potentially frustrate the underlying compromise policy of workers' compensation systems; these evaluative decisions create classes of claimants that may be under or over inclusive. Mr. Joseph describes several possible solutions to this problem and concludes by reviewing …

The American Codification Movement, A Study Of Antebellum Legal Reform, Robert W. Gordon

Vanderbilt Law Review

Between 1820 and 1850 American legal commentators became obsessed with whether legislatures should codify, either in whole or in part, the common law of the American states. Indeed, "[a]lmost every law writer after 1825 felt compelled to include his views [on codification] in his works of whatever sort."" The enormous literature that emerged from this period survives today to fascinate modern legal historians, who seem to have developed their own obsession for the "codification" issue. As Lawrence Friedman has said, "The codification movement is one of the set pieces of American legal history." Charles M. Cook's "The American Codification Movement: …

Seller Liability Under Section 12(2) Of The Securities Act Of 1933, Leonard A. Silverstein

Vanderbilt Law Review

This Note discusses which persons courts should deem to be"sellers" under section 12(2) according to their relationships to the challenged transaction. Part II examines the divergent approaches that courts have developed to identify seller status in the absence of legislative history. Part III analyzes the three major approaches and compares the scope of liability under each analysis. Last, part IV concludes that significant differences exist among these approaches and that courts uniformly should adopt a modified version of the proximate cause-substantial factor analysis

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This part examines each of the three approaches in particular situations and compares the results under …

Use Of Surveillance Evidence Under Title Iii, Thomas C. Banks

Vanderbilt Law Review

The rationale offered by Congress for requiring immediate sealing of wiretapping tapes by the court upon the completion of the interception period is to preserve the integrity of the tapes by preventing any tape tampering, alteration, editing, or other governmental bad faith. Congress, however, also added an exception to the sealing requirement that permits disclosure of the tapes' contents in a judicial proceeding if the government has contravened the sealing requirement yet has offered a satisfactory explanation for either a failure to seal or a delay in sealing. No circuit court treats sealing requirement violations in a manner that effects …

Tying Arrangements And Class Actions, Herbert Hovenkamp

Vanderbilt Law Review

This Article does not attempt to identify socially harmful tying arrangements." Rather, it draws upon the vast literature and case law of tying arrangements to suggest possible solutions to a perplexing problem in the law of antitrust class actions: under what circumstances do common questions predominate over individual questions in tying arrangement cases and thereby justify class action treatment? Courts today agree generally that although the amount of damages may vary considerably from one prospective class member to another, certification of a class action requires that the fact of injury be demonstrable by proof common to all members of a …

Problems In Giving Obscenity Copyright Protection: Did Jartech And Mitchell Brothers Go Too Far?, Kurt L. Schmalz

Vanderbilt Law Review

This Recent Development traces in part II the emergence of the rule that obscenity is not copyrightable. Part III then examines the courts' reasoning in Mitchell Brothers and Jartech and analyzes the impact of these cases on copyright law. Part IV finds that although these courts properly vindicate free expression, they fail to recognize adequately the national policy against obscenity and the inconsistency of affording federal copyright protection to materials that violate federal obscenity laws. Thus, this Recent Development argues that the strong national policy against obscenity, as manifested in federal anti-obscenity statutes, requires courts in some cases to deny …

A Practitioner's Introduction To Saudi Arabian Law, Gali Hagel

Vanderbilt Journal of Transnational Law

There is no Saudi legal code. Although the literature on the Islamic faith is extensive, the only Saudi laws available in the English language are the corporate, tax, and labor regulations. This Note brings together the applicable principles and laws to provide a broad overview of the Saudi legal system: it discusses the way in which Islamic law has evolved in Saudi Arabia, analyzes the major Saudi corporate regulations, and, as an introductory research tool, directs the practitioner to more detailed resources. This Note also gives practical advice to attorneys representing clients doing business in Saudi Arabia, adding needed dimension …