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Full-Text Articles in Law
The Founders' Unwritten Constitution, Suzanna Sherry
The Founders' Unwritten Constitution, Suzanna Sherry
Vanderbilt Law School Faculty Publications
In seeking to understand and interpret our written Constitution, judges and scholars have often focused on two related issues: how did the founding generation understand the Constitution they created, and to what extent should that understanding be relevant to modern constitutional interpretation? This article will address the first of these questions, but in a manner that profoundly affects the second question as well. I will suggest that the founding generation did not intend their new Constitution to be the sole source of paramount or higher law, but instead envisioned multiple sources of fundamental law. The framers thus intended courts to …
The Third-Party Defense To Hazardous Waste Liability: Narrowing The Contractual Relationship Exception, J.B. Ruhl
Vanderbilt Law School Faculty Publications
This article focuses on one of the defenses to CERCLA liability, specifically, the third-party defense set forth in section 107(b)(3) of the Act [CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3) (1982)] ... The particular concern of this article is with the meaning of the contractual relationship exception contained within the third-party defense provision. Although a partial definition of the term "contractual relationship" was added by the 1986 CERCLA amendments, this exception, if misapplied, could make the already narrow third-party defense overly narrow. Potential for such misapplication by the courts is present because the contractual relationship exception remains inadequately defined even …
Regulatory Economics In The Courts: An Analysis Of Judge Scalia's Nhtsa Bumper Decision, W. Kip Viscusi
Regulatory Economics In The Courts: An Analysis Of Judge Scalia's Nhtsa Bumper Decision, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
The automobile bumper standard issued by the National Highway Traffic Safety Administration (NHTSA) in 1982 was the product of a decade of policy debate.' This debate continued in the courts until ultimately the NHTSA bumper standard was upheld in 1985. Judge Antonin Scalia authored the majority opinion in the case upholding the standard, and his opinion is the subject of this paper. The NHTSA bumper standard is by no means a landmark regulation with sweeping economic consequences. The debate over the standard centers on the degree of protectiveness to be required of front and rear automobile bumpers. In particular, the …
State Adoption Of Federal Law: Exploring The Limits Of Florida's "Forced Linkage" Amendment, Christopher Slobogin
State Adoption Of Federal Law: Exploring The Limits Of Florida's "Forced Linkage" Amendment, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article examines the "forced linkage" between state and federal provisions that the 1983 amendment establishes in Florida. It concludes that forced linkage is ill-conceived, because it is inimical to state court independence. Accordingly, this article argues, the 1983 amendment to article I, section 12 of the Florida Constitution should be repealed. If not repealed, it should be interpreted to permit Florida courts broad discretion in developing their own stance on search and seizure law. So construed, the amendment would only require Florida courts to abide by those United States Supreme Court opinions that provide (1) an authoritative holding that …
An Essay Concerning Toleration, Suzanna Sherry
An Essay Concerning Toleration, Suzanna Sherry
Vanderbilt Law School Faculty Publications
This essay has suggested, through review of two recent works, how toleration theory can and cannot be used to provide a viable alternative to both moribund liberal ideas and the increasingly successful program of the new religious right. The interpretations of Bollinger's thesis, variations on his theme, are meant only as the next part of the fugue; further variations are expressly invited.
Workers' Compensation: Wage Effects, Benefit Inadequacies, And The Value Of Health Losses, W. Kip Viscusi, Michael J. Moore
Workers' Compensation: Wage Effects, Benefit Inadequacies, And The Value Of Health Losses, W. Kip Viscusi, Michael J. Moore
Vanderbilt Law School Faculty Publications
Using the 1977 Quality of Employment Survey in conjunction with BLS risk series and state workers' compensation benefit formulas, the authors assess the labor market implications of workers' compensation. Higher levels of workers' compensation benefits reduce wage levels, and controlling for workers' compensation raises estimates of compensating differentials for risk. The rate of trade-off between wages and workers' compensation suggests that benefit levels provide suboptimal levels of income insurance, abstracting from moral hazard considerations. The value of non-monetary losses from job injuries (including pain and suffering and non-work disability) is estimated to be $17,000-$26,000.