Law Commons^™

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law Review

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

Discovery Cost Allocation, Due Process, And The Constitution's Role In Civil Litigation, Martin H. Redish

Vanderbilt Law Review

The issue of discovery cost allocation, long ignored by both courts and scholars, has become something of a cause celebre in the last few years. An article which I coauthored on the subject was part of that renewed interest.' In 2011, my former student, Colleen McNamara, and I wrote an article urging a dramatic change not only in the manner of how discovery costs are allocated, but an entirely new way of understanding the concept of discovery costs. 2 Since the original promulgation of the Federal Rules of Civil Procedure in 1938, it has been universally assumed that discovery costs …

Restore, Revert, Repeat: Examining The Decompensation Cycle And The Due Process Limitations On The Treatment Of Incompetent Defendants, Margaret W. Smith

Vanderbilt Law Review

Though correctional facilities are one of the largest providers of mental health care in the country, the treatment provided often fails to address the needs of many mentally ill inmates. Indeed, after receiving treatment at a state mental health facility, many pretrial detainees who have been recently restored to competency revert to an incompetent state-or decompensate-upon their return to jail, at which point they must return to the state treatment facility to be restored to competency once again. This Note is the first to explore this "decompensation cycle," highlighting the significance of the problem and demonstrating how mental health treatment …

My Fellow Americans, We Are Going To Kill You: The Legality Of Targeting And Killing U.S. Citizens Abroad, Mike Dreyfuss

Vanderbilt Law Review

Silent and cold. At twenty thousand feet, the temperature is minus ten degrees Fahrenheit. At almost a thousand miles per hour, sound cannot keep up. Heat and noise struggle in the turbulence. Three miles away, seven thousand miles from American soil, an American citizen driving an empty road has ten seconds to live. As a leader in an organization actively engaged in armed conflict against the United States, this American citizen has become an enemy of the United States. In response to the threat he poses to his fellow Americans, his government added him to a kill list, targeted him, …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Vanderbilt Law Review

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966. In this Article, we consider three of those five cases-Chavez v. Martinez, Missouri v. Seibert and United States v. Patane-along with the blockbuster decision four years ago in Dickerson v. United States. in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify …

The Costs Of Incoherence: A Comment On Plain Meaning, West Virginia University Hospitals, Inc. V. Casey, And Due Process Of Statutory Interpretation, T. Alexander Aleinikoff, Theodore M. Shaw

Vanderbilt Law Review

Karl Llewellyn's classic article on the canons of statutory construction, which we rightly celebrate in this Symposium, is too clever by half. To the reader untutored in the scholarly literature on statutory interpretation, the "thrust but parry" pairing of the canons is a delightful demonstration of how legal argument is structured in a way guaranteed to maintain discretion in the judiciary and to keep lawyers in business. No case involving a statute is clear cut because the canons can lend support to either side. This means that no lawyer is without an argument, and a judge is free to do …

The Ripple Effects Of Slaughter-House: A Critique Of A Negative Rights View Of The Constitution, Michael J. Gerhardt

Vanderbilt Law Review

Upon seeing Niagara Falls for the first time, Oscar Wilde reportedly remarked that it "would be more impressive if it flowed the other way." I have a similar reaction to a series of narrow Supreme Court interpretations of the fourteenth amendment, beginning with the Slaughter-House Cases, decided in 1872, and extending to the 1989 decisions in Webster v. Reproductive Health Services and DeShaney v. Winnebago County Department of Social Services. In Slaughter-House the Court interpreted the privileges or immunities clause of the fourteenth amendment as merely protecting interests other federal laws already protected, while recently the Court interpreted the due …

The Constitutionality Of An Off-Dutysmoking Ban For Public Employees:Should The State Butt Out?, Elizabeth B. Thompson

Vanderbilt Law Review

During the past several years, restrictions imposed by states, cities,and municipalities on smoking in public areas have survived court challenges and become almost commonplace.' Likewise, both public and private employers have limited smoking in the workplace. A further restriction that seems to be emerging, however, is a refusal by both the state and a growing number of private employers to hire or to continue to employ smokers. These restrictions limit the employee's freedom to smoke not only in the workplace, but also after working hours and within the privacy of the worker's home.

This Note will address the constitutionality of …

The Constitutionality Of Statutes Of Repose: Federalism Reigns, Josephine H. Hicks

Vanderbilt Law Review

The development of common-law tort liability, especially since the late 1950s and early 1960s, has broken many of the barriers to plaintiff recovery. The abrogation of the privity requirement, the evolution of the discovery rule, and the advent of strict liability were primary agents in this "assault upon the citadel."' These developments have threatened many potential tort defendants, particularly members of the manufacturing and construction industries and the medical profession. In response to lobbying pressure from these groups, many state legislatures have adopted measures to limit tort recoveries. One of the measures most popular among defendants has been the enactment …

Police Use Of Trickery As An Interrogation Technique, James G. Thomas

Vanderbilt Law Review

This Note maintains that trickery can be effectively curtailed despite the failure of Miranda to do so. This Note argues that trickery in the interrogation room is a violation of fourteenth amendment substantive due process. The Supreme Court has recently stated, in very unambiguous terms, that due process requirements exist independently of the fifth amendment Miranda requirements in the interrogation context." This Note therefore proposes an objective due process standard that would prohibit trickery. The violation of this due process standard would require the exclusion at trial of confessions induced by trickery. Because the exclusionary rule is not a sufficient …

State Taxation Under The Commerce Clause: An Historical Perspective, Jerome R. Hellerstein

Vanderbilt Law Review

Although Congress has plenary power under the commerce clause to regulate state taxation of interstate commerce, that power remained virtually unexercised until 1959. As a consequence of the silence of Congress, the task of reconciling the competing interests of states, multistate businesses, and local businesses, and accommodating those interests to the needs of a national economy fell by default to the Supreme Court. The instrumentality available to the Court for dealing with the complex political, fiscal, and economic controversies inherent in state taxation of multistate business was the commerce clause (augmented by due process restrictions and,to a lesser extent, the …

The Less Restrictive Alternative In Constitutional Adjudication: An Analysis, A Justification, And Some Criteria, Robert M. Bastress, Jr.

Vanderbilt Law Review

The past two decades have witnessed enormous changes in both substantive constitutional law and the courts' approach to constitutional questions. The frequent application of the doctrine of less restrictive alternatives has been a factor of increasingly significant proportions in effecting these changes. Although the doctrine has long been part of our jurisprudence,' it did not begin to have a serious impact until the Warren Court years, and, despite its widely diversified use today, the concept is almost always applied without discussion. Succinctly and broadly stated, the doctrine requires that a state not employ a specific means to accomplish an admittedly …

Recent Development, Law Review Staff

Vanderbilt Law Review

Prisons in the United States house approximately 220,000 felons,'95 percent of whom will eventually return to society Most state legislatures have delegated to prison administrative bodies the power both to establish regulations prescribing proper prison conduct and to impose sanctions for their violation. Prison administrators thus have been granted wide latitude in establishing the procedures by which prisoners are determined to be guilty of disciplinary infractions and punished. Frequently, prisoners who allegedly have violated prison standards are not afforded notice of their offenses, are judged by their accusers, and are awarded disproportionately severe punishment, such as solitary confinement or loss …

Recent Developments, Law Review Staff

Vanderbilt Law Review

Confession of judgment procedures' have seldom received unrestricted legislative approval by the states--the vast majority of jurisdictions have enacted legislation either to eliminate the practice entirely or to limit severely its use. Unrestricted employment of the procedure in consumer transactions is prevalent only in the states of Pennsylvania, Illinois and Ohio, which account for a preponderance of the confessed judgments in the United States today. Although the constitutional validity of cognovit notes has been questioned on numerous occasions, the Supreme Court had never addressed this issue until its recent decisions upholding the use of these devices in D.H. Overmyer Co. …

The Supreme Court And Fundamental Rights--A Problem Of Judicial Method, James H. Wildman

Vanderbilt Law Review

Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when "liberty" will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy …

The Constitution On The Campus, Charles A. Wright

Vanderbilt Law Review

This article is the text of the Oliver Wendell Holmes Lectures, delivered by Professor Wright at the Vanderbilt University School of Law in April, 1969. Oliver Wendell Holmes, Jr., left a large part of his estate to the United States at his death in 1935. By Act of Congress in 1955, the disposition of the property was entrusted to a Permanent Committee, which, among other projects, sponsors the, annual Hohnes Lectures by a distinguished legal scholar.

Professor Wright has brought to this topic both profound constitutional scholarship and wide experience in dealing with related problems at his university. His thesis …

Book Reviews, John A. Gorfinkel, Arthur S. Miller, Bruce L. Mcdonald

Vanderbilt Law Review

American Conflicts Law By Robert A. Leflar Indianapolis: Bobbs-Merrill Co., Inc., 1968. Pp. lxxvi, 677. $19.50

reviewer: John A. Gorfinkel

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The Policy-Making Process By Charles E. Lindblom EnglewoodCliffs: Prentice-Hall, Inc. 1968. Pp. 122. $4.95 (Cloth), $1.95 (Paper).

reviewers: Arthur S.Miller, Bruce L. McDonald

Constitutional Law -- 1964 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

The prosecutions in McKinnie v. State, arose from "sit-in" demonstrations by which a group of Negroes attempted to obtain service at a privately operated cafeteria in Nashville. The passage of the Civil Rights Act of 1964 has since been held by the United States Supreme Court to abate these particular prosecutions and the prospective application of its public accommodations provisions makes it unlikely that their facts will recur.

Constitutional Law -- 1963 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

A 1963 survey of Tennessee cases having to do with various issues of constitutional law, including legislative apportionment, desegregation, equal protection and due process.

Constitutional Law -- 1962 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

I. Delegation of Legislative Power to Metropolitan Charger Commission

II. Right to Jury Trial: Special Findings Without General Verdict

III. Due Process of Law: In Personam Jurisdiction Over Nonresident Individual

IV. Due Process: Expulsion from Public University Without Hearing

V. Equal Protection: Legislative Apportionment

VI. Legislative Classification: Suspension of General Law for One County

VII. Legislative Classification: Exemption from Carrier Regulation

VIII. Equal Protection: Racial Discrimination

IX. Standing to Challenge Constitutionality

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Restraint of Trade-Supreme Court Suggests A New Reading of Section 3 of the Clayton Act

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Civil Rights--Abatement and Revival--State Survival and Wrongful Death Statutes Adopted in Federal Civil Rights Act Suits

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Constitutional Law--Tenth Amendment-the Estate of A Veteran Dying Intestate Without Heirs May Constitutionally Escheat to the Federal Rather Than State Government

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Due Process of Law--A State May Deny An Applicant Admission to the Bar for Refusing To Answer Questions About His Advocacy of Subversive Organizations Or Objectives

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Federal Courts--State Security for Expenses Statute Inapplicable in Federal Equity Action Under Securities Exchange Act

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Federal …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--DUE PROCESS--ADMINISTRATIVE AGENCY MAY DENY APPRISAL AND CONFRONTATION IN PURELY INVESTIGATIVE PROCEEDING

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CONSTITUTIONAL LAW--DUE PROCESS--STATE MAY DISCHARGE EMPLOYEE FOR FAILURE TO PERFORM STATUTORY DUTY TO ANSWER

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DAMAGES--REFUSAL TO INSTRUCT JURY TO CALCULATE LOSS OF EARNINGS ON THE BASIS OF NET INCOME AFTER TAXES

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EVIDENCE--ADVERSE SPOUSAL TESTIMONY--WIFE COMPELLED TO TESTIFY IN MANN ACT PROSECUTION

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FEDERAL PROCEDURE--CHANGE OF VENUE--TRANSFER OF CIVIL ACTION MUST BE TO DISTRICT HAVING STATUTORY VENUE

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FEDERAL TORT CLAIMS ACT--SUIT ALLOWED FOR NEGLIGENCE EVEN THOUGH ACCOMPANIED BY MISREPRESENTATION

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INSURANCE--FEDERAL TRADE COMMISSION--REGULATION BY STATE WHERE UNFAIR TRADE PRACTICE ORIGINATES DOES NOT OUST FTC …

Book Reviews, Marian D. Irish, Ralph Slovenko

Vanderbilt Law Review

The Quest for Equality By Robert J. Harris Baton Rouge: Louisiana State University Press, 1960. Pp. xiv, 173. $4.00.

reviewer: Marian D. Irish

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Confidentiality and Privileged Communication in the Practice of Psychiatry, Report No. 45. New York: Publications Office, Group for the Advancement of Psychiatry, 1960. Pp. 32. $.50.

reviewer: Ralph Slovenko

Constitutional Law--1960 Tennessee Survey, James C. Kirby Jr.

Vanderbilt Law Review

Eminent Domain--Just Compensation.-Landowners sued the Tennessee Commissioner of Highways and Public Works for compensation for a taking of property for the state's superhighway program in Brooksbank v. Leech. The trial court sustained a demurrer on the ground that the suit was barred by sovereign immunity. In order to dispose of this question on appeal the supreme court first determined whether the legislature had provided an adequate statutory method for just compensation, the absence of which would have rendered the taking unconstitutional under both article I, section 21, of the Constitution of Tennessee and the due process clause of the United …

Constitutional Law--1959 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

A smaller number of cases have been selected for inclusion in this year's survey. Seven cases are included, including one federal court decision dealing with a municipal ordinance. In addition, two specific acts of the General Assembly are noted although there has as yet been no opportunity for the courts to rule upon them.

Recent Cases, Law Review Staff

Vanderbilt Law Review

In a hearing before the Commissioner of Investigation of the City of New York, appellant refused to state whether he was then a member of the Communist Party and based his refusal to answer on the fifth amendment to the United States Constitution. He was thereafter discharged as an employee of the New York Transit Authority pursuant to provisions of the New York Security Risk Law' which allows dismissal of employees of security agencies who are found to be of "doubtful trust and reliability." Without seeking administrative remedies, appellant brought a proceeding in the state court for reinstatement contending that …

A Missing Link In The Evolution Of Due Process, Wallace Mendelson

Vanderbilt Law Review

On the eve of the American Revolution, Blackstone could comment that "so great.., is the regard of the [English] law for private property ... it will not authorize the least violation of it; no, not even for the general good of the whole community."' A similar concern for proprietary interests soon found expression on this side of the Atlantic in what Professor Corwin has called "The Basic Doctrine of American Constitutional Law"; namely, the "doctrine of vested interests." The general purport of this concept was that "the effect of legislation on existing property rights was a primary test of its …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--ALIENS--CONSTITUTIONALITY OF McCARRAN ACT

CONSTITUTIONAL LAW--DUE PROCESS--DUTY OF NON-RESIDENT VENDOR TO COLLECT USE TAX

CONSTITUTIONAL LAW--DUE PROCESS--TAXABLE SITUS OF PROPERTY OF INTERSTATE AIR CARRIER

DOMESTIC RELATIONS--INFANTS--RIGHT TO DISAFFIRM SEPARATION AGREEMENT

DOMESTIC RELATIONS--RES ADJUDICATA--FAILURE TO CROSS CLAIM IN SEPARATE MAINTENANCE SUIT AS BAR TO SUBSEQUENT DIVORCE

FEDERAL JURISDICTION AND PROCEDURE--FEDERAL STATUTORY RIGHT--CHARACTERIZATION OF RIGHT FOR PURPOSE OF APPLYING STATE STATUTE OF LIMITATIONS

INCOME TAXATION--TAXABLE INCOME--INCLUSION OF PROCEEDS OF PUNITIVE DAMAGES

NATURAL GAS ACT--STATUTORY CONSTRUCTION--SCOPE OF STATUTE AS AFFECTED BY SUBSEQUENT DECISIONS

NEGLIGENCE--USED-CAR DEALER--DUTY TO INSPECT

SALES--IMPLIED WARRANTY--REQUIREMENT OF PRIVITY BETWEEN PROCESSOR AND ULTIMATE CONSUMER

TORTS--UNATTENDED AUTOMOBILE STATUTE--LIABILITY OF OWNER FOR …

The Conflict Of Laws: The Experience Of The Australian Federation, Zelman Cowen

Vanderbilt Law Review

For American lawyers conflict of laws problems arise at two levels. One group of problems appears within the area governed by the Federal Constitution, while others arise within a wider international area. The decision of a New York forum in a case involving Michigan elements may very well differ from that reached by the same forum where the foreign elements involve England or France. The Constitution itself is often responsible for this difference. For example, questions of full faith and credit or of due process may be involved. It is not surprising, therefore, that the question has been posed whether …

Recent Constitutional Developments On Personal Jurisdiction Of Courts, Virginia B. Cowan

Vanderbilt Law Review

In strict logic, the concept of the power of courts to deal in personam with controversies is said to be a constant and the extension of jurisdiction merely an appropriation of pre-existing power. More realistically, it is obvious that, as institutions and citizens become increasingly mobile and migratory, the courts are obliged to keep their jurisdictional machinery abreast of the times in order that legal processes may continue to be the effective arbiter of disputes in our society. Regardless of what terms are used to describe the source of the power, it is traditionally conceived to be limited by the …