Law Commons^™

An Arrow To The Heart: The Love And Death Of Postmodern Legal Scholarship, Stephen M. Feldman

Vanderbilt Law Review

Modernist legal writers, including Dennis Arrow in his well-known Pomobabble article, commonly criticize postmodern legal scholars for being muddle-headed nihilistic thinkers who write indecipherable jargon-filled nonsense and lack political convictions. Professor Feldman responds to these and other related criticisms and, in doing so, explains some key components of postmodernism. For instance, he describes how the pervasiveness of postmodern culture infuses legal scholarship with certain postmodern themes. Ironically, then, even the most vehement critics, like Arrow, display a surprising if unwitting affinity for postmodernism. Finally, in order to deflect precipitate denunciations of postmodernism, Professor Feldman suggests a refinement of terms, dividing …

The Wine Is In The Mail: The Twenty-First Amendment And State Laws Against The Direct Shipment Of Alcoholic Beverages, Russ Miller

Vanderbilt Law Review

The Internet has revolutionized commerce by providing an easy way for businesses to reach vast numbers of customers, and by allowing consumers to attain products of all sorts with the mere click of a mouse. Some wine consumers, however, feel left behind by the Internet revolution. State laws against the direct shipment of alcohol leave them frustrated because they cannot purchase wine online and have it shipped to their homes. These laws against direct shipment have attracted a significant amount of attention in the news media, and they have recently been challenged in a number of federal courts.

To understand …

Law As Craft, Brett G. Scharffs

Vanderbilt Law Review

This Article explores the similarities between the law and other craft traditions, such as carpentry, pottery, and quilting. Its thesis is that law--and in particular adjudiction---combine elements of what Aristotle described as practical wisdom, or phronesis, and craft, or techne. Craft knowledge is learned practically through experience and demonstrated through practice, and is contrasted with other concepts, including art, science, mass production, craftiness, and hobby. Crafts are characterized by four simutaneous identities. First, crafts are made by hand-one at a time-and require not only talent and skill, but also experience and what Karl Llewellyn called "situation sense." Second, crafts are …

Are Shaming Punishments Beautifully Retributive? Retributivism And The Implications For The Alternative Sanctions Debate, Dan Markel

Vanderbilt Law Review

In the last few years, scholars and policymakers in the area of criminal justice have focused an increasing amount of attention on two topics. The first is the retributivist theory of punishment ("retributivism");' the second is the development of alternative sanctions to the orthodoxy of incarcerating criminals in publicly managed prisons. This Article is about what connections may properly be drawn between what justifies punishment and how we actually go about punishing offenders.

A preliminary word on retributivism may be helpful. Retributivism is a theory about retribution, and retribution's features, or its definition, may be understood in either a weak …

The New Face Of Creationism: The Establishment Clause And The Latest Efforts To Suppress Evolution In Public Schools, Deborah A. Reule

Vanderbilt Law Review

Over seventy-five years after the impassioned debate be- tween William Jennings Bryan and Clarence Darrow echoed through a hot Tennessee courtroom, the controversial confrontation over science, religion, law, and education can still be heard in legislative halls, courtrooms, schools, and homes across the nation. The now infamous "Scopes Monkey Trial" of 19253 brought the debate between religious fundamentalism and modern day scientific theory to the forefront and sparked twenty state legislatures to consider measures to prohibit the teaching of evolution in public schools. Nearly a century later, the dispute rages on. Twenty states considered anti-evolution measures in both the 1920s …

Spaceball (Or, Not Everything That's Left Is Postmodern), Dennis W. Arrow

Vanderbilt Law Review

Given law-school postmodernism's epistemo/ontology of juvenile antirealist agnosticism, its commitment to Gadamerian and/or Derridean notions of linguistic indeterminacy, its mono- maniacal dedication to centrifugal end-justifies-the-means Lefty politics, its abhorrence of commonly recognized conceptions of neutral principle, its concomitant disrespect for the very notion of truth, and its inextricably intertwined obsession with names and propensity for linguistic doublespeak, Professor Arrow confesses to initially wondering what it might "mean" to take anything uttered by a postmodernist "literally," or at "face value." But undaunted by that 'paradox," Professor Arrow not only takes up Feldman's challenge to "critique postmodernism on its own terms" (by …

The Competency Conundrum: Problems Courts Have Faced In Applying Different Standards For Competency To Be Executed, John L. Farringer, Iv

Vanderbilt Law Review

Throughout Anglo-American legal history, there has been a general agreement, based on numerous rationales, that mentally incompetent inmates should not be executed for their crimes. The recurring problem, however, is how to define "incompetence" or "insanity." Legislatures and courts have sought to provide a common- sense definition, but in practice judges must confront highly technical terminology from the ever evolving field of psychiatry. Additionally, the definition must be flexible enough to apply to a variety of cases, while being universal enough to assure that all defendants are treated fairly and equally.

At hearings to determine a prisoner's competency to be …

The Role Of Lawyers In The World Trade Organization, Peter D. Ehrenhaft

Vanderbilt Journal of Transnational Law

The World Trade Organization is a marvelously ambitious effort of now 140 countries to bring the rule of law to international trade. The WTO is a logical extension of the inspired ideas of the draftsmen of the General Agreement on Tariffs and Trade (GATT), who recognized at the end of World War II that the seeds of that conflagration were sown, in part, by the chaotic condition of international trade following World War I.

During that inter-war period, the United States adopted its Antidumping Act of 1921 and its Smoot-Hawley Tariff Act of 1930. Both survive to this day. By …

Threading The Needle: Resolving The Impasse Between Equal Protection And Section 5 Of The Voting Rights Act, Lindsay R. Errickson

Vanderbilt Law Review

When it comes to legislative reapportionment, the Peach State is in a pickle. Consider this: the results of the 1990 census entitled Georgia to an additional representative in the United States Congress, bringing the state's total number of seats to eleven.' In order to comply with the Voting Rights Act of 1965 (the "Voting Rights Act"), the state's legislative district map was re- drawn three times during the 1990s before the legal battle over redistricting finally ground to a halt in 1997. Barely giving the state's General Assembly and the federal courts a chance to catch their collective breath, the …

The Origins And Constitutionality Of State Unit Voting In The Electoral College, Matthew J. Festa

Vanderbilt Law Review

On November 1, 2000, a Joint Resolution was introduced in Congress proposing a constitutional amendment to change the Article II system of electing the President and Vice President' by abolishing the Electoral College. Acknowledging the fact that "there have been more congressionally proposed constitutional amendments on this subject than any other," the sponsoring Senator noted that the issue "could become supremely important in a few days," because "we have the possibility that the winning candidate for President might not win the popular vote in our country.' One prominent legal scholar has described the mere possibility of such an event as …

Beyond Counting Votes: The Political Economy Of Bush V. Gore, Michael Abramowicz, Maxwell L. Stearns

Vanderbilt Law Review

Journalists covering the 2000 presidential election controversy have had little trouble reconstructing the events of virtually every stage of the post-election process, reporting even privileged conversations among the candidates' lawyers. Yet one critical stage of the process remains shrouded in mystery: the behind-the-scenes events at the Supreme Court, which led to its decision in Bush v. Gore. Investigative reporting has produced only a few suggestive details. The Court has long insisted that it speaks through its opinions, and indeed the Court has left the public with only the Justices' statements at oral argument, and the various opinions themselves, from which …

Nonlegal Regulation Of The Legal Profession: Social Norms In Professional Communities, W. Bradley Wendel

Vanderbilt Law Review

In this Article, Professor Wendel analyzes the advantages and disadvantages of community-based responses to unethical behavior by lawyers. The limits of formal legal regulation of the legal profession are well known. Additional questions have been raised about the efficacy of motivating lawyers to act ethically merely by giving appropriate instruction. What is left, therefore, is a complex and little-studied, but very real, array of informal sanctions. These sanctions are controlled by individual members of the professional community, not by the court or organized bar, and therefore operate largely without the transparency and procedural regularity of formal legal regimes. The advantage …

Retelling Allotment: Indian Property Rights And The Myth Of Common Ownership, Kenneth H. Bobroff

Vanderbilt Law Review

The division of Native American reservations into individually owned parcels was an unquestionable disaster. Authorized by the General Allotment Act of 1887, allotment cost Indians two-thirds of their land and left much of the remainder effectively useless as it passed to successive generations of owners. The conventional understanding, shared by scholars, judges, policymakers, and activists alike, has been that allotment failed because it imposed individual ownership on people who had never known private property. Before allotment, so this story goes, Indians had always owned their land in common. Because Indians had no conception of private property, they were unable to …

Bankruptcy, Just For The Rich? An Analysis Of Popular Fee Arrangements For Pre-Petition Legal Fees And A Call To Amend, Kerry H. Ducey

Vanderbilt Law Review

The scenario is typical. An individual sits amid a pile of overdue bills. He calculates and recalculates only to verify what he has already suspected-his debt far exceeds his monthly income. Meanwhile, creditors and collection agencies demand payment while threatening repossession and other legal action. With no ready source of additional income, the debtor ultimately decides to file for bankruptcy. He consults an attorney, and the two agree to file a consumer no-asset Chapter 7 bankruptcy petition.' The lawyer then promises to use her best efforts to secure relief for the debtor. All she needs is a retainer. A retainer? …

Essential Elements, Nancy J. King, Susan R. Klein

Vanderbilt Law Review

For well over a century the United States Supreme Court has debated who has final authority to define what is a "crime" for purposes of applying the procedural protections guaranteed by the Constitution in criminal cases. After numerous shifts back and forth from judicial to legislative supremacy,' the Court has settled upon a multi-factor analysis for policing the criminal-civil divide, an analysis that permits courts to override legislative intent to define an action as civil in the rare case where the action waddles and quacks like a crime. This tug-of-war over the finality of legislative labels in defining crime and …

Avoiding Impotence: Rethinking The Standards For Applying State Antitrust Laws To Interstate Commerce, David W. Lamb

Vanderbilt Law Review

State antitrust laws are broadly constructed. With sweeping, general terms, often mirroring the language of the federal anti- trust laws, most state antitrust statutes manifest a legislative design to prevent-and to punish a variety of commercial activities that are anticompetitive in purpose or effect. These statutes, in conjunction with consumer protection statutes, constitute the primary vehicles through which state authorities protect consumers from harmful, anticompetitive behavior. Of course, despite the importance of state antitrust laws in preserving a competitive marketplace, the Constitution confines their reach. Through the Commerce Clause, the Constitution vests in Congress the exclusive power to regulate interstate …

Information Technology And Non-Legal Sanctions In Financing Transactions, Ronald J. Mann

Vanderbilt Law Review

This Essay investigates the effect of advances in information technology on the private institutions that businesses use to resolve information asymmetries in financing transactions. The first part of the Essay discusses how information technology can permit direct verification of the information, obviating the problem entirely; the Essay discusses the example of the substitution of the debit card for the check, which provides an immediate payment that obviates the need for the merchant to consider whether payment will be forthcoming when the check is presented to the bank on which it is drawn.

The second part of the Essay discusses how …

Toward Fundamental Fairness In The Kangaroo Courtroom: The Due Process Case Against Statutes Presumptively Closing Juvenile Proceedings, Stephen E. Oestreicher Jr.

Vanderbilt Law Review

Today's juvenile courtroom functions quite differently than did its 1899 Chicago ancestor. During every decade since the 1960s, the juvenile court system has undergone a number of fundamental, structural changes. The most recent of these "mega change[s]" came during the 1990s, when a number of states abandoned their existing presumptive closure statutes and mandated that juvenile delinquency proceedings be held in the open for the press and the public to see.

The policy reviews of this development have been mixed. Some commentators criticize the recent trend, asserting that open proceedings enervate the juvenile system's ultimate goal of rehabilitating wayward youths. …

The End Of The Affair? Anti-Dueling Laws And Social Norms In Antebellum America, C.A. Harwell Wells

Vanderbilt Law Review

Jonathan Cilley and William Graves fought their duel in the early afternoon of February 23, 1838. The two faced off near the Anacostia River bridge leading out of Washington, D.C., having agreed in advance to duel with rifles at a distance of eighty paces. Shortly before three o'clock, they stood opposite one another, and at the signal, they exchanged shots, Cilley firing first. Both men missed. The men who accompanied them to the duel-their seconds-tried to work out the disagreement that led the men to the dueling-ground, but to no avail. For a second time, both stood and exchanged fire; …

Removing Emotional Harm From The Core Of Tort Law, Martha Chamallas

Vanderbilt Law Review

My commentary is directed to one important feature of the new Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft")-the decision to remove liability for emotional harm from the core of tort law. As a Torts professor, I am very attracted to the Discussion Draft because to a large extent it tracks the way I structure and teach torts to first year students. It reflects what Professors Jack Balkin and Sanford Levinson describe as the pedagogical canon in torts, by highlighting those topics and subtopics that most professors emphasize in their scaled- down Torts course and including the material …

The Restatement (Third) And The Place Of Duty In Negligence Law, John C.P. Goldberg, Benjamin C. Zipursky

Vanderbilt Law Review

A prima facie case of negligence has four elements: duty, breach, causation, and injury. In plain English, a person suing for negligence alleges that the defendant owed her a duty of reasonable care and injured her by breaching that duty. Every state adheres to the four-element account,' with perhaps two exceptions. That ac- count was prominent in the various editions of Prosser's treatise, and is likewise prominent in Professor Dobbs' successor treatise. Leading casebooks also feature the four-element formula.

Given the widespread adoption of the four-element test, one would have expected to encounter it somewhere in the two drafts of …

The Passing Of Palsgraf?, Ernest J. Weinrib

Vanderbilt Law Review

According to a well-known story, Cardozo's Palsgraf opinion' was born in his attendance at the discussion of the Restatement (First) of Torts. If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement") stand, the Palsgraf case--indeed the whole notion of duty as a viable element of negli- gence analysis-- will effectively be dead. The proposed Restatement suggests that "duty is a non-issue" confined to unusual cases where "special problems of principle or policy... justify the withholding of liability." Duty has then merely a negative significance. It refers not to an element necessary to establish the defendant's liability, …

The Hand Formula In The Draft "Restatement (Third) Of Torts": Encompassing Fairness As Well As Efficiency Values, Kenneth W. Simons

Vanderbilt Law Review

The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible for this draft, the Hand formula can accommodate both economic and fairness accounts of negligence law.

Is he correct? I will argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. At the same time, however, the current Discussion Draft is deficient in some respects. It does not adequately allay the fears of …

Duty Rules, David Owen

Vanderbilt Law Review

Few principles are more fundamentally important to modern society than duty. As obligation to oneself and others-to one's family, friends, neighbors, business associates, clients, customers, community, nation, and God-duty is the thread that binds humans to the world, to the communities in which they live. Duty constrains and channels human behavior in a socially responsible way before the fact, and it provides a basis for judging the propriety of behavior thereafter. Duty flows from millennia of social customs, philosophy, and religion. And duty is the overarching concept of the law.

Duty is central to the law of torts. Negligence law …

On Determining Negligence: Hand Formula Balancing, The Reasonable Person Standard, And The Jury, Stephen G. Gilles

Vanderbilt Law Review

trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative.

On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)")--which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has …

Cost-Benefit Analysis And The Negligence Standard, Stephen R. Perry

Vanderbilt Law Review

In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft"), Stephen Gilles does an excellent job of analyzing the role of cost- benefit analysis in the characterization of reasonable care in previous restatements, and also of tracing the relationship between that characterization and contemporaneous scholarly work. This is a necessary prelude to any attempt to reformulate the content of the negligence standard in a Restatement (Third), and I think that Gilles' work will prove to be exceptionally helpful in that regard. Given the limited space I have available for my own comments, however, I …

Restating Duty, Breach, And Proximate Cause In Negligence Law: Descriptive Theory And The Rule Of Law, Patrick J. Kelley

Vanderbilt Law Review

The American Law Institute ("ALI") set out to restate the general common law in the United States in order to promote clarity and certainty in the common law, which were threatened by "the ever increasing volume of the decisions of the [different state] courts, establishing new rules or precedents, and the numerous in- stances in which the decisions are irreconcilable." Clarity and certainty in the common law across the United States, of course, re- quires uniformity. Naturally enough, then, the Institute recognized that a Restatement would promote clarity and certainty in the law only insofar as "the legal profession accepts …

Intent And Recklessness In Torts: The Practical Craft Of Restating Law, James A. Henderson, Jr., Aaron D. Twerski

Vanderbilt Law Review

However one frames the concepts of intent and recklessness in a Restatement, they must be kept generic, stable, and endogenous. By "generic" we mean that the concepts should not be tied to any single tort, or family of torts. For example, one frequently encounters philosophical treatments of tort that automatically link intent with the causing of tangible harms, such as personal injury and property damage. Apparently, intent and harm are coupled in this manner in order to contrast intentional infliction of harm with negligently harmful conduct. But to inextricably link intent with tangible harm in a Restatement of Torts would …

The Unexpected Persistence Of Negligence, 1980-2000, G. Edward White

Vanderbilt Law Review

In Tort Law in America: An Intellectual History, I made the general argument that the development of tort law in the nineteenth and twentieth centuries had been more influenced by ideas than previous scholars had suggested.' In making that argument I employed the terms "ideas" and "influence" at multiple levels of generality. The argument would perhaps have been better under- stood if I had more clearly particularized the specificity and generality of my claims about ideas as causal agents.

At the most specific level, I employed the term "ideas" to refer to particular doctrinal and policy proposals for tort law …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …