Law Commons^™

Preambles As Guidance, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to provide the agency’s official justification for the regulations they introduce, but also to offer guidance about the regulation’s meaning and application. Today, preambles include extensive guidance ranging from interpretive commentary to application examples. Based on the place of preamble guidance as part of the agency’s formal explanation of the regulation and the rigorous internal agency vetting which accompanies that …

Law And The Art Of Modeling: Are Models Facts?, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

In 2013, the Supreme Court made the offhand comment that empirical models and their estimations or predictions are not 'findings of fact" deserving of deference on appeal. The four Justices writing in dissent disagreed, insisting that an assessment of how a model works and its ability to measure what it claims to measure are precisely the kinds of factual findings that the Court, absent clear error cannot disturb. Neither side elaborated on the controversy or defended its position doctrinally or normatively. That the highest Court could split 5-4 on such a crucial issue without even mentioning the stakes or the …

Statutory Interpretation From The Inside--An Empirical Study Of Congressional Drafting, Delegation, And The Canons: Part I, Lisa Schultz Bressman, Abbe R. Gluck

Vanderbilt Law School Faculty Publications

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees …

The Future Of Agency Independence, Lisa Schultz Bressman, Robert B. Thompson

Vanderbilt Law School Faculty Publications

Independent agencies have long been viewed as different from executive-branch agencies because the President lacks authority to fire their leaders for political reasons, such as failure to follow administration policy. In this Article, we identify mechanisms that make independent agencies increasingly responsive to presidential preferences. We find these mechanisms in a context where independent agencies traditionally have dominated: financial policy. In legislative proposals for securing market stability, we point to statutorily mandated collaboration on policy between the Federal Reserve Board and the Secretary of the Treasury. In administration practices for improving securities regulation, we focus on White House coordination of, …

The Regulation Of Sovereign Wealth Funds: The Virtues Of Going Slow, Amanda Rose, Richard A. Epstein

Vanderbilt Law School Faculty Publications

Any symposium on private-equity firms and the going private phenomenon would be incomplete without discussion of Sovereign Wealth Funds (SWFs). These government owned investment vehicles have and will continue to play an important role in the going private phenomenon. SWFs have not only helped fuel that phenomenon through their participation as limited partners in private-equity funds and hedge funds, but their massive capital infusions into ailing financial institutions and private-equity firms in the wake of the subprime mortgage crisis may, in a very real sense, save it. It is not hyperbolic to suggest that the future of private equity - …

Examining South Africa's National Rape Crisis And Its Legislative Attempt To Protect Its Most Vulnerable Citizens, Ashley J. Moore

Vanderbilt Journal of Transnational Law

With the demise of apartheid, South Africans eagerly anticipated the freedom from bondage that liberation brings. More than ten years later, however, remnants of the inhumane system still remain throughout South Africa, with the epidemic rape crisis that currently grips the African nation providing dramatic evidence of the continued hold of apartheid. Scores of South Africa's women and young children must contend with the pervasive sexual violence that permeates the country. These would-be victims live in constant fear of physical attack, while advocates await the South African government's response to this national crisis. Unfortunately, legislation that would dramatically change South …

Mitochondrial Dna: Emerging Legal Issues, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This article will briefly survey some of the current and emerging legal issues surrounding mtDNA evidence. Parts I and II discuss basic evidentiary questions, including mtDNA's reliability and admissibility under Daubert as well as the potential problem of jury confusion regarding the probative value of mtDNA. Part III considers the broader potential of mtDNA to supplant microscopic hair analysis, a technique often criticized for its subjectivity and high error rate. Finally, Part IV explores the unique privacy concerns raised by the maternal inheritance of mtDNA, specifically in the context of DNA databanks.

The Forest And The Trees, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

Ask those who carefully follow the Supreme Court, and they will tell you that--for good or bad, depending on their perspective--the current Supreme Court has reduced to near rubble the metaphorical wall separating church and state.

The Use Of Legislative History In A System Of Separated Powers, Putting Legislative History To A Vote: A Response To Professor Siegel, Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

The debate over the legitimacy of judicial use of legislative history has significant legal and political ramifications that have long sparked controversy. As additional commentators join this long-running engagement, the focus of the debate necessarily changes.

In a previous article, John Manning argued that the use of legislative history violates the constitutional rule barring congressional self-delegation. Jonathan Siegel argues here that judicial reliance on legislative history does not implicate that rule, because a statute's legislative history already exists at the time of the statute's passage, and statutory incorporation of preexisting materials operates as an adoption of those materials, not as …

Putting Legislative History To A Vote: A Response To Professor Siegel, John F. Manning

Vanderbilt Law Review

In a previous article, I argued that, properly understood, textualism implements a special form of the nondelegation doctrine, one that prohibits legislative self-delegation.' If the judiciary accepts certain types of legislative history (committee reports and sponsors' statements) as "authoritative" evidence of legislative in- tent in cases of ambiguity, then the particular legislators who write that history (the committees and sponsors) effectively settle statutory meaning for Congress as a whole. Against the background of such a judicially fashioned interpretive practice, when Congress passes a vague or ambiguous statute, it thereby implicitly delegates its law-elaboration authority to legislative agents, who effectively fashion …

Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

For two authors who come to such different conclusions, Professor Manning and I agree on a good deal. We agree that courts, in considering whether to consult legislative history in the course of statutory construction, must take heed of the special constitutional rule against congressional self-aggrandizement.' Thus, we agree that the Constitution forbids courts to give authoritative weight to post-enactment legislative history, because the effect of such a judicial practice is to permit Congress to delegate a very important power, the power to elaborate the meaning of statutes, to its committees or Members. We also agree, however, that Congress may, …

The Use Of Legislative History In A System Of Separated Powers, Jonathan R. Siegel

Vanderbilt Law Review

Legislative history is the ultimate bugaboo of the textualists-those judges and scholars who assert that in statutory interpretation, "[w]e do not inquire what the legislature meant; we ask only what the statute means." The textualists have unleashed argument after argument against legislative history. Textualists assert that judicial use of legislative history seeks a collective legislative intent that does not exist and that would not be law if it did exist. They claim that congressional committees deliberately manipulate legislative history in order to influence statutory interpretation. They argue that legislative history is more ambiguous than the statutes it supposedly clarifies, that …

Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

For two authors who come to such different conclusions, Professor Manning and I agree on a good deal. We agree that courts, in considering whether to consult legislative history in the course of statutory construction, must take heed of the special constitutional rule against congressional self-aggrandizement.' Thus, we agree that the Constitution forbids courts to give authoritative weight to post-enactment legislative history, because the effect of such a judicial practice is to permit Congress to delegate a very important power, the power to elaborate the meaning of statutes, to its committees or Members. We also agree, however, that Congress may, …

Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes To You?, Stephen F. Ross

Vanderbilt Law Review

Over forty years ago, in the Symposium we commemorate today, Professor Karl Llewellyn wrote a devastating critique of the canons of statutory construction. For virtually every canon of construction, he demonstrated that there was another canon that could be employed to reach the opposite result. His point was not to be critical, but to argue proscriptively that the process of statutory construction requires an interpretation in light of a judicial determination of "some assumed purpose."'

Other commentators, both before and after the publication of Llewellyn's magnificent contribution to the Vanderbilt Law Review, have taken a different approach. These observers have …

Modern Statutes, Loose Canons, And The Limits Of Practical Reason: A Response To Farber And Ross, Edward L. Rubin

Vanderbilt Law Review

Daniel Farber' and Stephen Ross, in separate contributions to this Symposium, raise the most crucial question in modern statutory interpretation, a question that exposes the profound triviality of the canons of statutory construction that Karl Llewellyn so effectively attacked. Ross points out that the legislature can control, or at least attempt to control, the judicial use of the canons by the way it drafts the statute and by effective use of supplementary materials such as mark-ups, committee reports, and floor debates. Farber, in his critique of formalism, demonstrates that formalist interpretation is an impediment to effective statutory drafting. Inherent in …

Equal Protection And Affirmative Action In Broadcast Licensing, Michael Bressman

Vanderbilt Law School Faculty Publications

As the Supreme Court's 1989 Term reached its conclusion, observers expected the Court to follow "City of Richmond v. J.A. Croson Co." and invalidate two Federal Communications Commission (FCC) minority preference policies aimed at promoting broadcast diversity. Instead, in one of the major surprises of the Term, the Court upheld both FCC racial preference programs in Metro Broadcasting, Inc. v. Federal Communications Commission. Finding no equal protection violation, the Court ruled that "benign" race-conscious programs designed by Congress to "serve important governmental objectives" are constitutional if they are "substantially related to [the] achievement of those objectives."

Rethinking The Judicial Reception Of Legislative Facts, Ann Woolhandler

Vanderbilt Law Review

In a recent article, Professor Peggy Davis called for reforms in judicial reception of legislative facts. Her suggestions, which follow an empirical analysis of the use of psychological parent theories in child custody disputes, echo similar proposals by Professor Kenneth Karst in 1960s and by Professors Arthur Miller and Jerome Barron in 1975 for judicial reception of legislative facts in constitutional cases.As originally defined by Kenneth Culp Davis, legislative facts are facts that "inform[] a court's legislative judgment on questions of law and policy." They contrast with adjudicative facts, which are facts about "what the parties did, what the circumstances …

Legislation: Public Employee Labor Relations / Removal Of Federal Judges, Law Review Staff

Vanderbilt Law Review

One of the most striking developments in labor relations during the past fifteen years has been the rapid increase of both employment and union organization in the public sector. In 1950, there were approximately 6 million public employees; today there are over 10 million, over three quarters of whom work on the state and local level. It is estimated that 1.5 million of these government employees are members of various union organizations, a sixty per cent increase over the past ten years. As a result of this growth, public employees have increasingly sought and gained organizational and bargaining rights parallel …

The United States Congress And Internal Reform, Robert F. Sittig

Vanderbilt Law Review

It has now been twenty years since the United States altered its internal machinery in a comprehensive attempt at modernization. Its willingness, in 1946, to adopt most of the changes suggested by a congressional study committee indicated the timeliness of that reorganization. The basic areas changed were: standing committees (size,jurisdiction, membership and operating procedures); regulation of lobby groups; coordination and supervision of fiscal affairs; and the bringing of professional research staffs to Congress. Most of these modifications were quickly implemented after passage of the act.' Of those given a trial, many met the test of time and have become a …

Legislation, Law Review Staff

Vanderbilt Law Review

College Disciplinary Proceedings

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Enforcement of Foreign Non-Final Alimony Decrees

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Legal Aid for Indigent Criminal Defendants

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Prenatal Injuries and Wrongful Death

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Truth in Lending

State And Local Taxation -- 1963 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Excise Tax--Entire Net Income of Domestic Corporation Engaged in Multistate Operations Attributable to Tennessee

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II. Privilege Tax as Applied to Foreign Corporation--Orders Solicited in State Accepted in Foreign State

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III. Applicability of Tax for Privilege of Doing Business to Foreign Corporation--Sufficiency of Local Activity

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IV. Use Tax--Exclusion if Subject to Sales Tax

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V. Franchise Tax--Leased Property Included in Measure

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VI. Privilege Tax on Persons Engaged in Business of Collecting Accounts--Deductability of Attorney's Fees from Gross Collections

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VII. Ad Valorem Tax--Applicability to Non-Domiciliary Interstate Motor Carriers

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VIII. Exemption of Religious Institution from Property …

Communications Satellites--Progress And The Road Ahead, Bernard G. Segal

Vanderbilt Law Review

The declared policy of the United States is the establishment of a global system of communications satellites which will serve our needs and those of other countries, which will permit the participation of all nations, and which will contribute to world peace and understanding." Such a system, President Kennedy stated, is a vital element in the march of civilization. For lawyers to have a meaningful understanding of the developments in this new and important endeavor requires some understanding of the basic technology of communications satellites, of applicable legislation, and of the international problems involved. This article will attempt to present …

Interpretation Of Statutes In Derogation Of The Common Law, Jefferson B. Fordham, J. Russell Leach

Vanderbilt Law Review

The tendency of the lex scripta to supplant the lex von scripta has carried far since Roscoe Pound published his provocative paper on "Common Law and Legislation" in 1908. One can note at the same time indications that statute law is being received with much less hostility. The surprising thing, however, is that legislation in general is not at this day getting a far more sympathetic reception by lawyers and judges. Clearly they make up the professional group which has the largest share in the drafting and enactment of statutes. In actual practice, moreover, lawyers are given to committing private …

State Constitutional Conventions And State Legislative Power, Walter F. Dodd

Vanderbilt Law Review

The State of Tennessee faces a serious problem in that it badly needs changes in its Constitution of 1870 and finds it substantially impossible to make such changes by means of proposed amendments by the two houses of its General Assembly. The requirements (1) that legislative proposal be by a majority of all members of the two houses and that it be agreed to by two thirds of the General Assembly then next chosen, and (2) that approval of a proposed amendment be "by a majority of all the citizens of the State, voting for Representatives," ' substantially defeat possibility …