Law Commons^™

Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles F. Sabel

Vanderbilt Law Review

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …

Limitations Of The 1999 Work-For-Hire Amendment: Courts Should Not Consider Sound Recordings To Be Works-For-Hire When Artists' Termination Rights Begin Vesting In Year 2013, Ryan A. Rafoth

Vanderbilt Law Review

The legal issue that is the subject of this Note was once nothing more than a curious topic of debate among attorneys who represent recording artists. When I began researching the topic in June of 1998, several artists' attorneys explained the problems with language customarily inserted in record contracts by record companies claiming that the artists' sound recordings are "work made for hire." Most artists' attorneys have always disagreed with this work-for-hire language, believing it to be a misguided interpretation of the law, but they have always known that the contractual language could not legally bind their clients." Instead, the …

Shareholder Oppression In Close Corporations: The Unanswered Question Of Perspective, Douglas K. Moll

Vanderbilt Law Review

The doctrine of shareholder oppression protects the close corporation minority stockholder from the improper exercise of majority control.! Nevertheless, when a close corporation minority shareholder asserts that the majority shareholder has acted "oppressively" towards him, the minority's chance of success may very well depend on the perspective from which shareholder oppression is viewed. Consider the following two decisions:

In Priebe v. O'Malley, the controlling shareholders of a close corporation terminated the employment of Myron Priebe, a minority shareholder, for "unsatisfactory" work performance.! Priebe sued, asserting that the termination amounted to oppressive conduct! The trial court noted that "Priebe was not …

Textualism's Failures: A Study Of Overruled Bankruptcy Decisions, Daniel J. Bussel

Vanderbilt Law Review

Judges and legal scholars are engaged in a contentious, wide- ranging, and long-running debate over methods of statutory interpretation. Stripping the debate of some of its nuance without misrepresenting its essence, there are two camps: the "textualists" and the "pragmatists." Cass Sunstein recently argued that the question of interpretive method should be considered in light of evidence whether textualist methods work better or worse than pragmatic ones. To date, however, only limited empirical evidence has been systematically brought to bear on this question.

This Article presents new empirical evidence gleaned from twenty years of interpretation of the United States Bankruptcy …

Securities Issuer Liability For Third Party Misstatements: Refining The Entanglement Standard, D. Joseph Meister

Vanderbilt Law Review

Smith, president of E.com, Inc., believes his firm's securities are undervalued Believing that expanded coverage in the financial press will cause E.com's securities to trade at higher prices, Smith begins a public relations program designed to help investment analysts more accurately forecast his firm's future performance. Jones, financial analyst, takes information from the public relations program, drafts an optimistic forecast for E.com, and then asks its executives for their review and comment. Smith and his executives make extensive factual and descriptive edits to the report but refuse to comment on financial earnings projections, citing a longstanding company policy against such. …

Redefining Trademark Alteration Within The Context Of Aesthetic-Based Zoning Laws: A Blockbuster Dilemma, Jeffrey W. Strouse

Vanderbilt Law Review

In 1978, a Nevada Federal District Court permitted the Nevada Real Estate Advisory Commission to regulate the registered service mark' of Century 21, a national franchisor of real estate brokerage firms.' Prior to this state regulation, Century 21's mark occupied approximately 80 percent of the surface area of any given display, while the name of the local franchisee covered the remaining 20 percent. To prevent consumer confusion," the Commission required that the 80:20 ratio be changed to a 50:50 ratio, effectively making the franchisee's logo as large as its counterpart. Century 21 objected to this mandate, arguing in part that …

The Paradox Of Family Privacy, David D. Meyer

Vanderbilt Law Review

When it comes to the nature of the Constitution's protection for freedom of choice in matters relating to family life, there is wide agreement on perhaps only two points: first, that the subject raises "questions of unsurpassed significance in th[e] Court's interpretation of the Constitution,"' and, second, that the Court's halting passes at these questions have left its family privacy doctrine in a state of unsurpassed disarray. The significance of the questions is transparent. A comprehensive account of the subject calls for answers to the most basic and intractable problems of judicial review, answers that might justify the judiciary's role …

Scrutinizing Juvenile Curfews: Constitutional Standards & The Fundamental Rights Of Juveniles & Parents, Brant K. Brown

Vanderbilt Law Review

"I think I should be the one setting the curfew, not the town."' Not surprisingly, juvenile curfew laws can elicit two opposing viewpoints. The first viewpoint, exemplified by the quote above, is that juvenile curfew laws, in any form, infringe on individual rights and are rarely, if ever, constitutional. The imposition is borne not only by the juveniles subject to the curfew, but also by their parents. The second viewpoint is that juvenile curfews serve at least two very important state purposes: they deter juveniles from committing crimes and protect them from being the victims of crimes perpetrated at night.! …

Bargaining Theory And Regulatory Reform: The Political Logic Of Inefficient Regulation, David B. Spence, Lekha Gopalakrishnan

Vanderbilt Law Review

In this Article David Spence and Lekha Gopalakrishnan pro- pose a new understanding of regulatory bargaining. Economists and others have long argued that the American regulatory system is unnecessarily inefficient. Critics charge that the system is both substantively inefficient, in that it sometimes mandates the use of inefficient means for achieving a regulatory goal, and procedurally inefficient, in its over-reliance on rules. These arguments have led to a wave of regulatory reform experiments in the federal bureaucracy, many of which seek to promote positive-sum changes in regulatory policy through bargaining among private- and public-sector stakeholders. As several commentators have noted, …

To Have And Not Hold: Applying The Discovery Rule To Loss Of Consortium Claims Stemming From Premarital, Latent Injuries, Paul D. Fancher

Vanderbilt Law Review

Joel Friedman had a slow growing tumor on his thoracic spine. Unfortunately, his doctors negligently failed to diagnose or treat it. Joel then married his wife, Jihane, with whom he initially had a fulfilling physical relationship.! As his illness progressed, however, Joel began experiencing erectile dysfunction.' Ultimately, he became completely impotent. When later testing disclosed Joel's undiagnosed tumor, the Friedmans became aware of their cause of action for medical malpractice.

Fortunately, our legal system provides some redress to Joel. The discovery rule protects his claim from the statute of limitations.8 Joel, however, is not the only victim in this case. …

Anything Goes: Examining The State's Interest In Protecting Children From Controversial Speech, Catherine J. Ross

Vanderbilt Law Review

Protecting children from contamination by speech has become the focus of national attention. The content of the protected speech that the state seeks to regulate is as varied as the form of communications targeted, including the allegedly indecent, sacrilegious, and violent in media ranging from books to the Internet. Echoing similar crusades to protect children from virtually every new form of entertainment over the last century, contemporary regulatory efforts to protect children reflect the unique legal status of children and the fragility of constitutional liberties where their vulnerabilities are invoked. But content-based restrictions on speech--even in the name of protecting …

Naked Land Transfers And American Constitutional Development, Mark A. Graber

Vanderbilt Law Review

The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A, played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on "certain great principles of justice" rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in …

The Right Results For All The Wrong Reasons: An Historical And Functional Analysis Of The Commerce Clause, Anna J. Cramer

Vanderbilt Law Review

Two football players rape an eighteen-year-old college student. A high-school senior carries a concealed handgun into a school building.' An arsonist burns down a trailer occupied by an interracial couple. An armed robber, after burglarizing the home of a couple and their handicapped child, speeds off in the family's Suburban.'

All of these crimes are local in nature. It seems obvious that each perpetrator would be hauled down to the local courthouse and indicted under applicable criminal law. One naturally assumes that the law would be a state statute. Yet, these perpetrators will not only face state criminal prosecution but …

Health Care Reform Through Medicaid Managed Care: Tennessee (Tenncare) As A Case Study And A Paradigm, James F. Blumstein, Frank A. Sloan

Vanderbilt Law Review

TennCare is a Medicaid demonstration project that allows Tennessee to require all Medicaid beneficiaries to secure medical care through a mandatory managed care system. Enrollees contract with private managed care organizations ("MCOs'), which are responsible for organizing a network of care providers and delivering medical care to covered beneficiaries. Driven by rapidly escalating Medicaid costs, TennCare's mandatory managed care program has succeeded in saving money for the state in its Medicaid program. To secure the federal waiver that allowed the program to proceed, the state included non-Medicaid-eligible uninsured and uninsurable residents as TennCare beneficiaries. Federal matching funds accrue for all …

Constructing Alternative Avenues Of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(A), Phillip F. Cramer

Vanderbilt Law Review

A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum. …

Urine Trouble! Extending Constitutionality To Mandatory Suspicionless Drug Testing Of Students In Extracurricular Activities, James M. Mccray

Vanderbilt Law Review

The United States makes clear its reverence for education by demanding that its children attend school.' What is less clear, how- ever, is the nation's dedication to each student's constitutional rights. From the earliest days of the common law, public school students have lacked fundamental rights, even the right of liberty in its narrowest sense.' Although public students retain certain constitutional rights,' the public school system maintains an elevated power over its students." This power is like that of a parent,' including the duty to "inculcate the habits and manners of civility" into its students.' The public school's control over …

Government Of The Good, Abner S. Greene

Vanderbilt Law Review

Government "speaks" both directly through its own pronouncements and indirectly through funding private speech. Many scholars of both political theory and constitutional law have argued that government should not use its persuasive powers to promote contested notions of the good life. Whether the issue is providing information about childbirth without also providing information about abortion or insisting on adherence to decency standards when awarding cultural grants, scholars generally have maintained that government should avoid taking sides.

In this Article, Professor Greene supports the contrary position, advocating a vigorous role for government speech even in areas of great social contest. Government …

How The Grateful Dead Turned Alternative Business And Legal Strategies Into A Great American Success Story, Brian C. Drobnik

Vanderbilt Law Review

That the Grateful Dead were "different" undoubtedly is true on a broad social level. But it is not so easy to ascertain how they were different in the business and legal aspects of their enterprise. The ephemeral nature of their approach stems from the fact that they conducted their affairs within and alongside the world of statutes and contracts and yet provided themselves with a great degree of independence from that world. This Note will comment on the Dead's perspective on and their ultimate rejection of many of the business and legal strategies traditionally ascribed to in the industry. After …

Privacy And Democracy In Cyberspace, Paul M. Schwartz

Vanderbilt Law Review

In this Article, Professor Schwartz depicts the widespread, silent collection of personal information in cyberspace. At present, it is impossible to know the fate of the personal data that one generates online. Professor Schwartz argues that this state of affairs degrades the health of a deliberative democracy; it cloaks in dark uncertainty the transmutation of Internet activity into personal information that will follow one into other areas and discourage civic participation. This situation also will have a negative impact on individual self- determination by deterring individuals from engaging in the necessary thinking out loud and deliberation with others upon which …

Monitoring Governmental Disposition Of Assets: Fashioning Regulatory Substitutes For Market Controls, Harold J. Krent, Nicholas S. Zeppos

Vanderbilt Law Review

Each year, the government sells and leases public assets worth billions of dollars. FCC auctions to allocate rights to electromagnetic spectrum generated over twenty billion dollars within a three-year period, and proceeds from mineral leases, timber sales, and disposition of real estate from defaulting thrifts have surpassed several billion dollars annually.

From the taxpayer's perspective, however, government sales and leases have been deplorable. The government has donated valuable resources to preferred claimants, allocated scarce broadcast and oil rights resources by lottery, and sold both public land and mineral rights to private parties at a fraction of the market price. Although …

Witch Doctors And Battleship Stalkers: The Edges Of Exculpation In Entrapment Cases, John F. Preis

Vanderbilt Law Review

The bumbling criminal has long been humorous to the law-abiding. Take, for example, a man recently intent on robbing a bank. The man entered a Bank of America bank, grabbed a deposit slip, and wrote on it "This iz a stikkup. Put all your muny in this bag."' While waiting in line for a teller, he became worried that someone had seen him write the note and would inform the police. Thus, he exited the bank, walked across the street to the Wells Fargo bank, and gave the note to a teller. The teller, probably sensing his lack of dangerousness …

State Defiance Of Bankruptcy Law, Eric Winston

Vanderbilt Law Review

Bankruptcy is the principal device by which failing businesses and financially-troubled families get one last chance to reorganize their affairs back to financial health. It is also the graveyard for business failures, the place where we bury dead corporations and divide their remaining assets among their surviving creditors. In the last decade, the bankruptcy system has given seven million middle-class families a way to start over-an opportunity to save their homes from foreclosure, rid themselves of overwhelming debts, and reintegrate themselves into the workforce as productive citizens. It has also been the way that 10,000 corporations have restructured their way …

The Graduation Prayer Cases: Coercion By Any Other Name, Colin Delaney

Vanderbilt Law Review

The Supreme Court's decision in Lee v. Weisman held clergy- delivered invocations at public-school graduation ceremonies unconstitutional. In the wake of this landmark case, school boards across the country instituted a variety of policies to avoid the establishmentarian attributes fatal to the prayers in Lee. Several Courts of Appeals soon heard cases involving authorities seeking to divorce themselves from speakers and speaker selection, in the apparent belief that school involvement placed the imprimatur of the state on graduation prayer. Yet two facts mark all of the situations challenged to date. First, an agent of the state, the school board, exercised …

Beyond "Harm": Abandoning The Actual Injury Standard For Certain Prohibited Takings Under The Endangered Species Act By Giving Independent Meaning To "Harassment", Alicia M. Griffin

Vanderbilt Law Review

As new technology and a desire for progress propel us into the next millennium, a corresponding daily depletion of national and worldwide wildlife resources perpetuates the frightening biological problem of species extinction, resulting in "irreplaceable losses" to medicine, science, ecology, and aesthetics. Every species is a part of the intricate and complicated ecosystem; its stability depends on the continued existence of each of its components. Each black-footed ferret, blue whale, and red wolf contributes to the delicate "balance of nature," a state of ecology that must be maintained for humans to survive. Indeed, scientists have derived much-needed knowledge from other …

Understanding Causation And Threshold Of Release In Cercla Liability: The Difference Between Single- And Multi-Polluter Contexts, Aaron Cooper

Vanderbilt Law Review

Toxic waste has become an increasing public health problem in America.' Congress enacted the Comprehensive Environmental Response, Compensation and Liability Act CCERCLA" or "the Ace) in 1980, as a means to improve the efficiency of hazardous waste site cleanups. CERCLA encourages parties to clean up toxic sites by allowing those parties to recover response costs from potentially responsible parties (TRPs"). To accomplish this goal, CERCLA contains an expansive liability scheme that imposes strict liability on, among others, a party that has released or threatened release of a toxic substance that has caused or may cause the incurrence of response costs. …

Beyond The Formalism Debate: Expert Reasoning, Fuzzy Logic, And Complex Statutes, Edward S. Adams, Daniel A. Farber

Vanderbilt Law Review

Formalists and antiformalists continue to debate the utility of using legislative history and current social values to interpret statutes. Lost in the debate, however, is a clear model of how judges actually make decisions. Rather than focusing on complex problems presented by actual judicial decisions, formalists and antiformalists concentrate on stylized examples of simple statutes.

In this Article, Professors Adams and Farber construct a more functional model of judicial decisionmaking by focusing on complex problems. They use cognitive psychological research on expert reasoning and techniques from an emerging area in the field of artificial intelligence, fuzzy logic, to construct their …

The Legend Of "Crow Dog:" An Examination Of Jurisdiction Over Intra-Tribal Crimes Not Covered By The Major Crimes Act, James W. King

Vanderbilt Law Review

Native American tribes present unique problems to American jurisprudence and governance. Unquestionably subject to federal control on some levels, they have maintained the "inherent powers of a limited sovereignty" over internal affairs.' While both the Supreme Court and Congress have recognized this sovereignty, specific Congressional mandate can abrogate it at any time. This Note addresses the question of whether Congress has mandated federal jurisdiction over all serious crimes committed by Indians against other Indians on tribal land.

The story is long and complicated, with its beginnings in the 1883 Supreme Court case Ex parte Crow Dog, in which the Court …

Corporate Liability, Risk Shifting, And The Paradox Of Compliance, William S. Laufer

Vanderbilt Law Review

The evolution of corporate criminal law is explained by the shifting risks of liability and loss between corporations and their agents in accommodating the illogic of vicarious liability. A vivid example of the effects of this risk shifting is seen with the recent emergence of the good citizen corporation movement. This movement en- courages prosecutors with vast discretion to leverage indictments and convictions of subordinate agents, resort to civil and administrative actions against large and medium-sized corporations in place of criminal indictments, compromise agent indemnification, and enforce corporate self-regulation through elaborate plea agreements. Not surprisingly, organizations tend to conceive of …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law Review

In confronting important constitutional issues, state courts face a range of interpretive questions, many unanswered by the texts of state constitutions. Where a constitutional text fails to answer the question posed, a state court, much like its federal counterparts,' must look to extra-textual interpretive tools to aid in its decision- making task. The literature on state constitutional law provides important insights into how interpretation operates within a single state's. system of governance. But rarely does it attempt to under- stand and appreciate how or why the interpretive practices of state and federal constitutional systems differ.

This is unfortunate. Understood through …

State Defiance Of Bankruptcy Law, Kenneth N. Klee, James O. Johnston, Eric Winston

Vanderbilt Law Review

Bankruptcy is the principal device by which failing businesses and financially-troubled families get one last chance to reorganize their affairs back to financial health. It is also the graveyard for business failures, the place where we bury dead corporations and divide their remaining assets among their surviving creditors.

In the last decade, the bankruptcy system has given seven million middle-class families a way to start over-an opportunity to save their homes from foreclosure, rid themselves of overwhelming debts, and reintegrate themselves into the workforce as productive citizens. It has also been the way that 10,000 corporations have restructured their way …