Law Commons^™

Public Choice And The Future Of Public-Choice-Influenced Legal Scholarship, David A. Skeel, Jr.

Vanderbilt Law Review

By many yardsticks, public choice is the single most successful transplant from the world of economics to legal scholarship., As with other law-and-economics scholarship, critics have attacked its assumptions, its methodology, and its conclusions. But nearly everyone concedes the power of at least some of the insights of public choice, and many of its terms, including "public choice" itself, have become common coinage in the legal literature, even among those who would never overtly rely on law-and-economics perspectives in their work.

Although both Maxwell Stearns's collection of readings and commentary, Public Choice and Public Law, and much of this Review …

Introduction: Current Issues In Mental Health Care - Special Edition, Tamsen D. Love

Vanderbilt Law Review

Today we think we know a lot more about mental health care than our country's founders did. Yet in many ways we are in no better position than our eighteenth-century predecessors. Certainly, the decisions we as a society face about mental illness are just as difficult. The vocabulary we employ is more complex--"behavioral health organization," "psychopharmacology," "cost containment"--but the issues are the same: Who should pay for mental health care? How much care is appropriate? And, more fundamentally, what exactly is mental health?

This year's Special Project addresses these issues. The Notes focus on particular legal issues in the mental …

Legislative "Subterfuge"?: Failing To Insure Persons With Mental Illness Under The Mental Health Parity Act And The Americans With Disabilities Act, Christopher A. Jones

Vanderbilt Law Review

The two primary problems with providing health care in the United States are cost and access., The cost of health care rose dramatically during the 1970s and 1980s and continues to increase, making coset containment crucial to the availability of care. In addition, many Americans are either entirely without health insurance or are underinsured for catastrophic illness. While individually these two issues are important, equally problematic is the tension that exists between them. Providing greater access to additional services results either in a cost increase or the loss of other services. Ultimately, however, a general plan to contain costs can …

Reconceptualizing Strict Liability In Tort: An Overview, Martin A. Kotler

Vanderbilt Law Review

In a series of books and articles, Professor Marshall Shapo has developed the idea of American tort law as a "cultural mirror"--a legal system reflecting cultural norms that serves as the "intellectual and practical foundation for society's response to injuries." The "cultural mirror" metaphor captures both the notion that there is a substantive normative basis for tort law that exists within society and the procedural notion that tort law ensures that those underlying norms are reflected in the resolution of tort disputes.

Although I believe Professor Shapo's description to be fundamentally correct, it is also incomplete, and, as a result, …

Current Issues In Mental Health Care, David A. Skeel, Jr.

Vanderbilt Law Review

When America was founded in the late eighteenth century, doctors treated mental illness with beatings, isolation, and physical restraint-all thought to help the patient regain inner reason., People exhibiting strange behavior were often forced onto the streets, run out of town, or thrown into jail.

Today we think we know a lot more about mental health care than our country's founders did. Yet in many ways we are in no better position than our eighteenth-century predecessors. Certainly, the decisions we as a society face about mental illness are just as difficult. The vocabulary we employ is more complex--"behavioral health organization," …

The Early And Periodic Screening, Diagnostic, And Treatment Program And Managed Medicaid Mental Health Care: The Need To Reevaluate The Epsdt In The Managed Care Era, John A. Flippen

Vanderbilt Law Review

For a majority of Medicaid recipients, managed health care is fast becoming a reality. As state governments seek to control Medicaid costs in a world of limited resources, unlimited reimbursement for any treatment a doctor deems necessary is no longer feasible. One major tool for cost containment has been the privatization of the delivery of Medicaid coverage into managed care organizations. The shift to a managed plan means that services will be rationed. This rationing occurs because capitated rates, for example, require that private managed care organizations ("MCOs") bear the risk of providing services to the Medicaid population and attempt …

Returning To The True Goal Of The Individuals With Disabilities Education Act: Self-Sufficiency, Robert C. Hannon

Vanderbilt Law Review

This country has long recognized the necessity of an education in order to function productively in society. As suggested by one of the founding fathers, Thomas Jefferson, "some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system." More recently, the Supreme Court recognized the importance of education in Brown v. Board of foreclose the means by which that group might raise the level of es- teem in which it is held by the majority .... Illiteracy is an enduring disability."

Today this need to educate remains just as pressing. Our country …

Democracy, Majoritarianism, And Racial Equality: A Response To Professor Karlan, Christopher L. Eisgruber

Vanderbilt Law Review

Only with great trepidation do I undertake to comment upon Professor Karlan's fine Article.1 Much of what I know about voting rights law I have learned from her work, and her contribution to this Symposium is characteristically erudite, detailed, and cogent. I will therefore limit myself to offering four modest observations about her argument. My central point is simple: While Professor Karlan successfully identifies several empirical questions that critics of majority- black voting districts must answer, those same questions also raise problems for defenders of majority-black districts (including Professor Karlan herself).

Professor Karlan's argument is directed against what I shall …

The Dynamics Of Democracy: Travel, Premature Predation, And The Components Of Political Identity, Nicholas S. Zeppos

Vanderbilt Law Review

Democracy is indeed an elusive concept and any effort to develop the constituent elements of so important a political idea ought to be encouraged. From any number of perspectives it is clear that democracy must include more than simply ratifying the outcomes of either citizen or representative voting., And when a court is asked to set aside the results of a process some describe as democratic, the challenge to enrich the concept becomes even more pressing, particularly when the judicial power is invoked in the name of enhancing democracy. The Supreme Court's decision in Romer v. Evan dramatically poses the …

Formal Neutrality In The Warren And Rehnquist Courts: Illusions Of Similarity, Rebecca L. Brown

Vanderbilt Law Review

I read recently that if one compares the genetic structure of humans to that of dogs, one finds that ninety-six percent of the DNA in the two species is identical. That is a lot of common ground. Yet it may not be enough to draw meaningful conclusions about the sameness of the two creatures. Without suggesting that either of the two Courts discussed in her Article is a "dog," I do think it is fair to say that Professor Sherry has perhaps underestimated the relative importance of the divergent four percent.

Professor Sherry argues that in the defining areas of …

Romer V. Evans And Democracy's Domain, Jane S. Schacter

Vanderbilt Law Review

As we gather at this Symposium to probe the definition of democracy in the coming century, it seems fitting to note that we are continuing a very old political conversation rather than initiating a new one. The meaning of democracy has long been contested. One of the most vexing aspects of the debate has always centered on whether and how to limit the majority's prerogative to act in ways that disadvantage minorities. Viewed from a different angle, the question is how to configure the relationship between majority preferences and equality norms. It is the basic dilemma of democratic equality: What …

Introduction: The Democratic Judge, Michael J. Gerhardt

Vanderbilt Law Review

It is a special privilege for me to return to this great law school to honor one of its greatest graduates. Each time I return to Nashville, it feels like a homecoming. Each time I return, I also feel that as I am getting older, Judge Merritt is getting younger. The last time I was here, he got married; and the time before that, we squared off for the umpteenth time on a tennis court. He also Writes more opinions, gives more speeches, and has taken more of a leadership role in protecting the interests of the federal judiciary than …

The Black Public Sphere And Mainstream Majoritarian Politics, Regina Austin

Vanderbilt Law Review

As a person who pays only passing attention to formal black electoral politics, let alone the Voting Rights Act and the Supreme Court's attempts to decimate it, it is a privilege and a daunting challenge to respond to Professor Karlan's Article, Loss and Redemption: Voting Rights at the Turn of a Century. At the outset, I felt inadequate to the task. My research has largely focused on informal black socioeconomic development and discourse, most of which occurs far from the spotlight of the political mainstream., The only formal politics with which I am concerned occurs primarily at the local, grass- …

Loss And Redemption: Voting Rights At The Turn Of A Century, Pamela S. Karlan

Vanderbilt Law Review

The year the Voting Rights Act was passed, Langston Hughes published Long View: Negro. "Sighted through the [t]elescope of dreams," Hughes wrote, Emancipation loomed very large:

"But turn the telescope around, Look through the larger end- And wonder why What was so large Becomes so small Again."

We don't really need to wonder why the political side of the First Reconstruction failed; there were so many reasons. One was the exhaustion of the national commitment to ensuring black equality and its replacement by a cynical bipartisan compromise in which black aspirations played no role. Another was the "progressive" belief that …

The Supreme Court, Visibility, And The "Politics Of Presence", Kathryn Abrams

Vanderbilt Law Review

Jane Schacter has made a critical contribution by elaborating the meaning and potential consequences of the Court's holding in Romer v. Evans. At the center of her account is the thought-provoking suggestion that the Court's opinion enables a visibility or "presence" for gays and lesbians in the extended realm of the "political." While I salute her illumination, I am less certain about whether to share her optimism. In this Comment, I will explore the latter question by looking beyond the decision in Romer to other cases involving group-based civil rights. I will probe the effects of Supreme Court decisionmaking on …

All The Supreme Court Really Needs To Know It Learned From The Warren Court, Suzanna Sherry

Vanderbilt Law Review

It is accepted wisdom among constitutional law scholars that the Supreme Court is now considerably more conservative than it was during the tenure of Chief Justice Earl Warren. In this Article, I hope to suggest that the conventional wisdom is at least partly wrong. In Part I, I suggest that many of the current Court's so-called conservative cases and doctrines are direct descendants of Warren Court cases and doctrines. Although my attribution of similarity is new, the description of the cases and doctrines themselves is entirely unoriginal. Indeed, the history of the two sets of cases-of the Warren Court and …

Neutral Principles: A Retrospective, Barry Friedman

Vanderbilt Law Review

Once upon a time, Enlightenment ideals prevailed across the land. Neutrality, objectivity, and reason were accepted as the firmaments of Supreme Court decisionmaking. "Americans tend[ed] to believe that 'playing fair' [meant] making everyone play by the same rules, and any deviation from this definition [was] immediately suspect."' But "then, some scholars.., abandoned the fundamental aspiration toward. . . neutrality in government." "Neutrality" came to be "considered a chimera, an illusion used by those in power to justify and perpetuate existing hierarchies." The nation was threatened with a return to pre-Enlightenment days, a "return to a world in which it matters …

On The Merits: A Response To Professor Sherry, John C.P. Goldberg

Vanderbilt Law Review

Professor Sherry's Article has three parts. The first is doctrinal and undertakes to demonstrate that the above quoted wisdom is not only false, but patently so. It is apparent, this Part argues, that the current Court has not drifted toward the "right," but has steadfastly held to the principle of justice that animated the Warren Court. This is the principle of "formal neutrality," which generally holds that government may never distinguish among its citizens on the basis of race, creed, or color.

Professor Sherry's second project is to explain why constitutional scholars have failed to recognize this obvious consistency. Her …

Democracy, Kulturkampf, And The Apartheid Of The Closet, William N. Eskridge, Jr.

Vanderbilt Law Review

In the generation after World War 2 (1945-69), homosexual intimacy was a serious crime in Colorado and other states, as was any kind of "lewdness" or homosexual solicitation; people suspected of being homosexual were routinely dismissed from federal, state, and private employment.' In the generation after Stonewall (1969-97), Colorado's legislature repealed the state's consensual sodomy law, and the governor by executive order prohibited state employment discrimination on the basis of sexual orientation. The cities of Aspen, Boulder, and Denver enacted ordinances prohibiting private sexual orientation discrimination in housing, employment, education, public accommodations, and health and welfare services. In 1992, the …

Abortion As Commerce: The Impact Of "United States V. Lopez" On The Freedom Of Access To Clinic Entrances Act Of 1994, Benjamin W. Roberson

Vanderbilt Law Review

American politics in the 1990s is preoccupied with the movement of power from a centralized federal authority to state and local governments. There is some measure of consensus that the federal government can no longer provide solutions to all of America's problems., The resulting retreat from the twentieth century federal monolith has interesting implications for constitutional law. The federal government's power expanded largely under the authority of the Commerce Clause. Although the traditional broad interpretation of Congress's commerce power bears little resemblance to the actual text of the Constitution, courts have accepted the notion that Congress may regulate any activity …

Intellectual Property Rights In Data?, J. H. Reichman, Pamela Samuelson

Vanderbilt Law Review

The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States, it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition. Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became …

Second Thoughts On Second Punishments: Redefining The Multiple Punishments Prohibition, Peter M. Bryce

Vanderbilt Law Review

The Fifth Amendment provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." To the layperson "twice put in jeopardy" means twice tried. The Supreme Court has firmly established, however, that the Double Jeopardy Clause targets two kinds of multiplicity: multiple prosecutions and multiple punishments. The right against multiple punishments is less commonly understood than the right against multiple prosecutions. What does it mean to be punished twice for the same offense? What is the evil that the right guards against? The Court appears to have defined the prohibition …

Policing Corporate Crime: The Dilemma Of Internal Compliance Programs, Michael Goldsmith, Chad W. King

Vanderbilt Law Review

In recent years, federal and state laws have sought to promote good corporate citizenship by encouraging business entities to establish internal compliance programs designed to avoid-or at least detect-illicit conduct. The most significant impetus toward effective internal corporate policing occurred in 1991, when the United States Sentencing Guidelines (Sentencing Guidelines) made the existence of an "effective" internal compliance program the sine qua non for receiving leniency upon conviction. As a result, corporations nationwide have sought to establish compliance programs that qualify for preferred treatment under federal law. Such programs, however, have produced an unanticipated dilemma for many businesses: when a …

Rethinking Independence: The Lack Of An Effective Remedy For Improper For-Cause Removals, Tracey A. Hardin

Vanderbilt Law Review

Despite persistent constitutional questions, United States administrative agencies have grown in influence during this century.' Much of this controversy has centered around Congress's ability to control the removal of administrative officials constitutionally. In an effort to retain control of administrative agencies and in recognition of the need to conduct certain adjudicative functions outside the executive's domain, Congress has sought to create some agencies free from presidential influence. In particular, Congress has focused on at- tempting to limit the President's power to remove administrative officials. Although such limitations have always been controversial, the Supreme Court is generally thought to have resolved …

The Fitness Of Law: Using Complexity Theory To Describe The Evolution Of Law And Society And Its Practical Meaning For Democracy, J. B. Ruhl

Vanderbilt Law Review

Why does law change, and how does that process unfold? In this Article, Professor Ruhl examines those questions using tools from the emerging field of Complexity Theory. Complexity Theory involves the study of change in dynamical systems. Its findings of unpredictable change in a variety of natural and social settings have profoundly effected the theoretical foundations of many fields of study. In particular, Complexity Theory has revisited the Darwinist theory of biological evolution and used it as a platform for developing a general theory of system evolution that focuses on the concept of fitness landscapes. The fitness, or sustainability, of …

Sex In The Sunlight: The Effectiveness, Efficiency, Constitutionality, And Advisability Of Publishing Names And Pictures Of Prostitutes' Patrons, Courtney G. Persons

Vanderbilt Law Review

An interstate billboard warns visitors to La Mesa, California: "Attention johns: We take pictures." In 1994, to widespread political accolades, the city initiated a policy of publishing names and pictures of prostitutes' patrons in local newspapers. La Mesa is not alone. If nightmares about the revelation of the contents of Heidi Fleiss's little black book sent shivers down the spines of Hollywood's rich and fa- mous, the tremors have traveled through La Mesa and sent similar shudders across the nation. The anonymous sex once so sought-after for its secrecy has been slapped up on billboards as communities, desperate to disinfect …

Indirect Effects Of Direct Election: A Structural Examination Of The Seventh Amendment, Vikram D. Amar

Vanderbilt Law Review

Federalism is hot. Courts are trying to preserve it.' Politicians are trying to reinvent it. And academics are trying just to understand it. Inspired by this renewed interest in the relationship between federal and state governments, I decided to undertake a fresh examination of the Seventeenth Amendment which requires direct election-by the People of each State-of members of the United States Senate. After all, although direct election has not received extensive academic attention, the amendment's removal of state legislatures from the federal electoral process would seem to have significantly reworked the Constitution's federal framework; state legislative election of Senators was …

Double-Barreled Prosecution: Linking Multiple Section 924(C) Violations To A Single Predicate Offense, Christopher L. Robbins

Vanderbilt Law Review

Violent crime involving the use of firearms has risen dramatically during the past few decades. Recent congressional efforts to address this problem have focused almost exclusively on gun control as the appropriate solution, leading to the imposition of waiting periods for the purchase of firearms and complete bans on the production of certain assault weapons. Attempting to remove firearms from the hands of criminals, however, is not an exclusive remedy.

One of the natural companion measures to gun control is the imposition of severe sentences for the use of firearms during the commission of violent felonies. Congress adopted this approach …

Liquor And Lemon: The Establishment Clause And State Regulation Of Alcohol Sales, Steven L. Lane

Vanderbilt Law Review

Approximately half of the fifty states and numerous municipalities maintain and enforce legislation that prohibits the sale of alcohol close to churches. A number of other states allow their liquor- licensing authorities to consider proposed vendors' proximity to churches. Likewise, states and municipalities in all regions of the country have laws that restrict the sale of alcohol on Sunday. Notwithstanding the secular justifications offered by the proponents of such legislation, analysis reveals that it is religiously motivated. Although the Bible contains no clear mandate against the sale, purchase, or consumption of alcohol, history illustrates that prohibitions on the sale of …

Untying A Judicial Knot: Examining The Constitutional Infirmities Of Extrajudicial Service And Executive Review In U.S. Extradition Procedure, Matthew M. Curley

Vanderbilt Law Review

Consider the following situation. An investment banker embezzles millions of dollars from a bank in Italy and transfers the funds to an account in the United States. While he is vacationing in the United States, federal marshals apprehend him pursuant to a request by the Italian government. They bring him before a federal district court judge sitting as an extradition magistrate in the local federal courthouse. After determining that the evidence presented meets the requisite level of criminality, the judge declares that the banker is properly extraditable and binds the case over to the Secretary of State.

The President, however, …