Law Commons^™

Employer Sexual Harassment Liability Under Agency Principles:A Second Look At Meritor Savingsbank, Fsb V. Vinson, Michael J. Phillips

Vanderbilt Law Review

With its 1986 decision in Meritor Savings Bank, FSB v. Vinson,the United States Supreme Court put its imprimatur on the Title VII sexual harassment cause of action that had emerged over the preceding decade. Early commentary on the case tended to emphasize this aspect of the Court's decision or to speculate about Meritor's impact on the future course of Title VII sexual harassment litigation. Getting relatively short shrift in this early commentary, however, was the Court's command that "agency principles" --the common law of agency-- be consulted to determine an employer's liability for harassment committed by its employees.' As subsequent …

Anticipatory Search Warrants: The Supreme Court's Opportunity To Reexamine The Framework Of The Fourth Amendment, David P. Mitchell

Vanderbilt Law Review

The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no War-rants shall issue, but upon probable cause."' Although its language is relatively clear, the application of the Fourth Amendment has created more controversy than the application of perhaps any other constitutional amendment.' Given the questions raised by a police-endorsed practice of anticipatory search warrants,' the search and seizure debate is far from over.

An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. Challenges …

Two Sides Of The Same Coin: The Potential Normative Power Of American Cities And Indian Tribes, Kevin J. Worthen

Vanderbilt Law Review

People do not normally associate cities with Indian reservations.The mental images typically conjured by each term are radically different. For most people, "city" evokes visions of skyscrapers, streets teeming with traffic, and bustling crowds. "Indian reservation," on the other hand, brings to mind pictures of solitude, rugged nature, and large empty spaces.

Perhaps for that reason, few think of city governments' and tribal governments in similar terms. The two entities usually are oblivious of one another. When they are introduced, it is often as adversaries in a legal battle concerning the right to govern some rural western community.

Yet, the …

Limitation Periods For Federal Causes Of Action After The Judicial Improvements Act Of 1990, M. Patrick Mcdowell

Vanderbilt Law Review

Congress often enacts statutes that create specific causes of action for aggrieved individuals. Many federal statutes, however, create duties with no corresponding action for breach, leaving courts to create causes of action for individuals owed those duties.' When the courts, rather than Congress, create a cause of action, no specific statute of limitations governs the suit. Surprisingly, many statutory causes of action also lack limitation periods." Courts frequently face actions not governed by any statute of limitations because traditionally there has been no general statute of limitations governing all federal actions.

Courts usually are not content to find that a …

Our Better Natures: A Revisionist View Of Joseph Sax's Public Trust Theory Of Environmental Protection,And Some Dark Thoughts On The Possibility Of Law Reform, Richard Delgado

Vanderbilt Law Review

When Professor Joseph Sax wrote his famous Public Trust article in 1970, the environmental movement was in a state of agitation and flux. Commentators were writing about plastic trees, Ways Not to Think About Plastic Trees, and whether we should bestow legal rights on natural objects. The Green Movement took hold in Europe, and in the United States scholars, activists, and ordinary citizens were calling for greater attention to the problems of decreasing quality of life, increasing pollution, and over development of the nation's farm and wilderness lands.

The time was exactly right for Sax's article. Sax proposed a simple,easily …

Out Of Focus: The Misapplication Of Traditional Equitable Principles In The Nontraditional Arena Of School Desegregation, Joseph H. Bates

Vanderbilt Law Review

Karl Marx wrote that all historical facts occur twice--the first time as tragedy, the second time as farce.' In the desegregation of Little Rock, Arkansas, the genres were reversed. In 1957 the opportunistic Governor Orvall Faubus reduced to farce the Little Rock Board of Education's initial attempt to comply with the United States Supreme Court's decree in Brown v. Board of Education when he ordered the Arkansas National Guard to prohibit nine black students from entering Little Rock High School. In 1983, after more than two decades of continuous court supervision and intermittent litigation, the tragedy began when the Little …

The Lingering Legacy Of "In Loco Parentis": An Historical Survey And Proposal For Reform, Brian Jackson

Vanderbilt Law Review

The changing legal relationship between students and their college or university reflects the evolution of higher education in this country. During the Colonial period and the early years of the Republic, higher education was conducted mainly through small, church-affiliated colleges. In most cases, the founders and faculties of early American schools imitated the collegiate systems of Oxford and Cambridge. Stu- dents and their teachers aspired to withdraw from the world of everyday affairs to live and work in an environment that mirrored the families students left behind. Faculties were concerned not only with intellectual advancement but also with the development …

Tapping The State Court Resource, Ann Althouse

Vanderbilt Law Review

Supreme Court opinions about federal jurisdiction usually feature painstaking analysis of the text of statutes and constitutional clauses and the intentions of those who authored them, or they are based on long-standing traditions of equity jurisprudence. But, as the Court's many divided decisions attest, these materials are scarcely clear enough to determine all outcomes. Thus, the Justices often seem to weigh various interests when they draw the lines around federal jurisdiction. The Court sometimes openly acknowledges this interest weighing, referring to "state interests" and "federal interests."

Justice Stevens has taken exception to this process. He has ob- served that much …

The Priority Battle Over Returned And Repossessed Goods, Michael A. Birrer

Vanderbilt Law Review

Article 9 of the Uniform Commercial Code (the Code) governs secured transactions in personal property and fixtures.' When more than one creditor has a security right in the same piece of collateral, the Article 9 rules of priority determine the order in which each creditor may satisfy his claim. The creditor with the highest priority rank gets paid first, and, if his claim exceeds the amount of the proceeds, junior creditors take nothing. Consequently, creditors want to determine their priority rights in collateral before extending credit. If one creditor determines that another creditor will have priority over its security interest, …

Civil Images Of Battered Women: The Impact Of Domestic Violence On Child Custody Decisions, Naomi R. Cahn

Vanderbilt Law Review

The purpose of child custody decisions is to develop an arrangement that is in the best interest of the child by awarding the child to one or both natural parents.' The critical factors in determining the child's best interest are those that have a direct impact on the child and the child's relationships. The question of which factors are most relevant to the child's best interest is unsettled,' and the answers that have been developed are "highly contingent social construction[s]." This Article examines one factor that is directly related to children's relation- ships and well-being, yet is rarely included in …

Albrecht After Arco: Maximum Resale Price Fixing Moves Toward The Rule Of Reason, Roger D. Blair, Gordon L. Lang

Vanderbilt Law Review

For some time, both economic and legal commentators have recognized the economic irrationality of the Supreme Court's ruling in Albrecht v. Herald Co. which prohibited the imposition of maximum resale prices by a supplier on its resellers. Ordinarily, unwise decisions receive critical reviews and eventually lose their force as they are over-ruled explicitly or by implication in subsequent decisions. In order for this evolution to occur, however, the Court must be presented with an opportunity to alter its earlier rulings. Recently, the Supreme Court had just such an opportunity to revisit the Albrecht rule in Atlantic Richfield Co. v. USA …

Privatization And Foreign Investment In Czechoslovakia: The Legal Dimension, Vratislav Pechota

Vanderbilt Journal of Transnational Law

This Essay is intended to outline the legal developments in Czechoslovakia since the November 1989 revolution, which ended forty-one years of Communist domination. The new era, inaugurated by the revolution, began with a painstaking search for a political and constitutional model and for a strategy of socio-economic development that would make the country's transition to democracy and prosperity as smooth and painless as possible.

Considering Business Opportunities In The Soviet Union In The 1990s, Richard N. Dean

Vanderbilt Journal of Transnational Law

The purpose of this Essay has been to provide, in somewhat summary fashion, basic background and guidelines to assist Western companies that are considering commercial transactions in the Soviet Union. It was not intended to be an exhaustive analysis of all factors that may affect the negotiation, completion and implementation of commercial transactions in the Soviet Union. Rather, we have drawn from our experience in assisting our clients over the last three years in the USSR and have attempted to provide an appropriate context for the consideration of potential business opportunities.

In our experience, the most effective perspective to adopt …

Rebirth Of A Nation: The Difficulties Of Transition In Eastern And Central Europe, J. French Hill

Vanderbilt Journal of Transnational Law

The 1980s will go down in history as the Decade of Democracy. Latin America, Europe, and even parts of Africa saw remarkable gains in political pluralism and individual freedoms, but nowhere was this more pronounced than in central and eastern Europe and the Balkans.

As Timothy Garton Ash chronicled in his inspiring essays, The Magic Lantern, the movements of a people from totalitarianism to freedom were remarkably peaceful. Once started, the speed was breathtaking. This dash toward freedom is epitomized in Ash's quip made famous by playwright, turned President, Vaclav Havel: "In Poland it took ten years, in Hungary ten …

Trade And Business Opportunities In Poland, Marek Kulczycki

Vanderbilt Journal of Transnational Law

Economic policies of the Polish Government are aimed at achieving two fundamental objectives. In the short run, the objective is rapid deceleration of high inflation and general stabilization of the Polish economy. In the long run, the objective is an irreversible transformation of the Polish economic system into a free market economy. Implementation of both policy objectives has been taking place simultaneously since January 1, 1990.

In the short term, the most important problem for us is the stabilization of the economy. Fighting inflation is perhaps the most urgent problem for us. If we cannot manage with this, it will …

Investing In Czechoslovakia, Richard Sumann

Vanderbilt Journal of Transnational Law

Students once asked the famous British Professor John Maynard Keynes about the long-term effects of his regulatory policies. His answer was that in the long run, we are all dead. We have quite a different philosophy. In the long run, we want to be all better off. And we understand that to be better off, it means the introduction of a market economy and a free, democratic society. Converting the rigid, centrally planned economies of Central and Eastern Europe into flexible, efficient, motivated, market-oriented economies and societies may affect your future. In fact, it will affect Europe and the world …

Eastern Europe: Observations And Investment Strategies, Marek Wierzbowski

Vanderbilt Journal of Transnational Law

It is my impression that right now an American lawyer has no problem getting acquainted with East European laws concerning foreign investment. There are so many translations now in this country that almost every new law is immediately translated into English. The American lawyer can get to this text at almost the same time as the East European lawyer can get to it.

So it is very easy to get acquainted with legal texts of the most important laws from the point of view of foreign investors, but there are some traps. And it is my impression that when lawyers …

Preface: Symposium On Trade And Foreign Investment In Eastern Europe And The Soviet Union, David F. Matlin, James A. Yokely

Vanderbilt Journal of Transnational Law

The Vanderbilt Journal of Transnational Law held a Symposium on Trade and Foreign Investment in Eastern Europe and the Soviet Union on March 14 and 15, 1991. The Symposium consisted of a morning and an afternoon seminar held on March 15 at the Vanderbilt University School of Law and an inaugural dinner and address the previous evening. Our goal was to bring together and promote discussion among the leading authorities in this area from academia, private legal practice, business, "and government. The results of this Symposium have culminated in the publication of this special issue, which contains Articles, Essays, edited …

A Changing Europe, Joe M. Rodgers, Ambassador

Vanderbilt Journal of Transnational Law

Those of you who have been here all day have heard some people that really understand what is going on in Eastern Europe, people from those countries, and experts in those subjects. I am going to take a little different approach. I am going to talk about Europe, and why I think it is at the real leading edge of global change today as we know our economic and political systems. There are four things happening in Europe today, any one of which would have an impact, or will have an impact, on the future as you young people know …

Aspects Of Soviet Law On Joint Ventures, Foreign Trade, And Investment: A Bibliographic Survey Of Current Literature In English, Igor L. Kavass

Vanderbilt Journal of Transnational Law

The following is a compilation of works from widely dispersed sources in legal, economic, and business literature, including significant pronouncements made by professors, practicing lawyers, business people, and students. Journal articles are the predominant genre, and we have found it expedient to organize the gamut of views represented therein into several sections. With the growing consolidation and maturity of joint venture practices, the trend in publication is moving towards monographs, legislative compilations, practice manuals, and lengthy theoretical works. They appear to be phasing out articles from their place at the forefront of research.

All the same, the reader eventually will …

Criminal Discovery, Scientific Evidence, And Dna, Paul C. Giannelli

Vanderbilt Law Review

"At bottom the case against Claus von Bilow was a scientific case. It would have to be refuted by scientific evidence,"' wrote Alan Dershowitz. The von Bilow case is not alone. Many recent notorious criminal trials involved scientific proof. For example, the prosecution offered hypnotically refreshed testimony and bite mark evidence in the Ted Bundy case. Fiber evidence proved critical in the trial of Wayne Williams for the murder of two of the thirty young black males killed in Atlanta in the late 1970s.' Other illustrations include the pathology and serology testimony in the Jean Harris trial, the forensic analysis …

Baseball And Chicken Salad: A Realistic Look At Choice Of Law, Harold G. Maier

Vanderbilt Law Review

Most conflict of laws teachers come to their calling because they are fascinated with the intellectual variety of the subject matter and the sense of systemic universality that pervades the legal decisions with which they work. We deal, after all, with some very fundamental aspects of law and the legal system in a world of fascinating abstractions mixed with concrete decisions. Although I have taken no survey, conversations with many of my colleagues suggest that they, as did I, found the course Conflict of Laws in the second or third year of law school to be one that reawakened the …

Prescription Drug Approval And Terminal Diseases: Desperate Times Require Desperate Measures, John P. Dillman

Vanderbilt Law Review

It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose. The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by …

Observations Of A Latvian Practitioner, Valentin Blueger

Vanderbilt Journal of Transnational Law

After having heard so many distinctive speakers, I thought of what might be of interest more specifically on a few issues. You can certainly understand that there is a lot in common among all of the countries of Eastern Europe right now. There are a few topics that were mentioned in every speech. There is privatization, the monopolization of the economy, and the transformation of the system into a free market society.

In the Soviet Union, there has been a very contradictive process going on within the last six months. Everything said before in terms of changing the system appears …

Tax Considerations In Foreign Trade And Investment In The Ussr, Michael Newcity

Vanderbilt Journal of Transnational Law

The purpose of this Article is to provide a primer on the tax treatment accorded in the USSR to the various forms of income that foreign companies and individuals may earn in the course of doing business or otherwise investing there. This Article will not provide exhaustive answers to all questions arising in connection with the taxation of income earned by foreign businesses in the USSR. Such exhaustive answers are not currently possible because of frequent changes in Soviet tax legislation and the lack of comprehensive and sophisticated regulations interpreting that legislation.

The Soviet Government, at both the union and …

Trade And Investment In Central And Eastern Europe: A Bibliographic Survey Of Current Literature In English, Igor I. Kavass, William M. Walker

Vanderbilt Journal of Transnational Law

The year 1989 will be remembered as an important year in the histories of the Central and Eastern European countries because of the demise of the Soviet-controlled regimes and the emergence of independent and largely pluralistic political movements. A major catalyst for such radical political change was the decline of the centralized command economies in the Central and Eastern European countries. These so-called "Soviet Bloc" countries modeled their economic systems after the Soviet Union and, like the Soviet model, these countries found themselves saddled with an increasingly inefficient economic system. When the political systems changed, the new governments immediately took …

People's Court, Nicholas S. Zeppos

Vanderbilt Law Review

The Supreme Court's opinion in Bowers v. Hardwick' contains the usual cant about the legitimacy of the judicial function. In holding that the due process clause of the fourteenth amendment does not recognize a fundamental right to practice homosexual sodomy, the Court cautioned that "[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. What exactly did the Court mean? That the public would refuse to obey judicial judgments if the Court were to recognize rights not "found in" …

Privacy In The First Amendment: Private Facts And The Zone Of Deliberation, James R. Beattie, Jr.

Vanderbilt Law Review

It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose.

The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by …

Retracing The Antitrust Roots Of Section 1972 Of The Bank Holding Company Act, Daniel Aronowitz

Vanderbilt Law Review

In 1956 Congress enacted the Bank Holding Company Act' (BHCA) to provide safeguards against undue concentration in the control of banking activities. Congress intended the regulations to protect the economy from anticompetitive combinations of banking and non- banking enterprises held under singular control. Still concerned with the faded "line" between banking and commerce, in 1970 Congress in- creased the scope' of the BHCA with a series of amendments, including an anti-tying provision.

Specifically, 12 U.S.C. section 1972 prohibits anticompetitive practices that "require bank customers to accept or provide some other service or product or refrain from dealing with other parties" …

Controlling Campaign Spending And The "New Corruption": Waiting For The Court, Gerald G. Ashdown

Vanderbilt Law Review

Preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.'

This statement by the United States Supreme Court appears to present its position on campaign finance restrictions. It must be viewed, however, in juxtaposition to other often quoted language of the Court concluding that restricting the speech of one in an effort to enhance that of another is contrary to the first amendment. These conclusions led the Court to the dichotomous holding in Buckley v. Valeo that campaign contribution restrictions contained in the Federal Election Campaign Act (FECA) …