Law Commons^™

Bargaining About Future Jeopardy, Daniel C. Richman

Vanderbilt Law Review

The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants-those who plead guilty instead of standing trial-the Double Jeopardy Clause sin- ply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring the dynamics of …

Calling Off The Lynch Mob: The Corporate Director's Fiduciary Disclosure Duty, Lawrence A. Hamermesh

Vanderbilt Law Review

Two parallel bodies of American law establish the obligations of corporate directors to disclose information about the corporation to its existing stockholders: (1) the Securities Exchange Act of 1934, and (2) state common law, including doctrines such as fraud and negligent misrepresentation. Although these state common law doctrines have been applied to transactions in corporate securities, their significance has been largely eclipsed by comprehensive federal regulation.

Of growing importance, however, is a state law duty that courts have created and imposed upon directors based upon their fiduciary relation to the corporation and its stockholders. In the last twenty years, this …

The Case For Applying The Eighth Amendment To Corporations, Elizabeth S. Warren

Vanderbilt Law Review

ABC Corporation employs fifty drivers and transports various products across state lines. An employee of ABC corporation secretly carries small amounts of illegal drugs in the trailers of the trucks he drives and does so without detection for five years. After law enforcement authorities discover the drug trafficking, the United States files an in rem action under 21 U.S.C. section 881(a)(4), seeking forfeiture of every truck that the guilty driver drove over the past five years and every trailer in which the guilty driver carried drugs. This forfeiture could result in ABC Corporation's losing a third of its trucks and …

The Spousal Defense--A Ploy To Escape Payment Or Simple Application Of The Equal Credit Opportunity Act?, Andrea M. Farley

Vanderbilt Law Review

A defaulting spouse may find a powerful and effective defense to a creditor's entry of judgment in the Equal Credit Opportunity Act ("ECOA" or "the Act") and the accompanying federal regulation ("Regulation B"). The defense arises when a married applicant enters a financial institution seeking a loan, and even though the applicant is unquestionably creditworthy, the creditor requires that the applicant's spouse co-sign the loan as a guaranteeing spouse. The financial institution has just violated the ECOA by discriminating against the applicant on account of the applicant's marital status. If the original applicant later defaults on the loan, the creditor …

Rape, Race, And Representation: The Power Of Discourse, Discourses Of Power, And The Reconstruction Of Heterosexuality, Elizabeth M. Iglesias

Vanderbilt Law Review

This Article explores some of the difficulties involved in designing genuinely effective and broadly inclusive legal strategies for eliminating women's sexual oppression. Part II.A begins the analysis by using Gary LaFree's empirical studies of rape enforcement practices to develop some observations about the kinds of legal strategies most likely to foster women's sexual autonomy.' LaFree's studies illustrate how the institutional structures and decision making procedures of the criminal justice system create the opportunity for rape processing practices to reproduce relations of race and gender subordination. Each discretionary decision point in the system creates a social space in which legal agents …

Issues And Outcomes, Guidance, And Indeterminacy: A Reply To Professor John Rogers And Others, David G. Post, Steven C. Salop

Vanderbilt Law Review

There is now a small but growing literature on the proper voting procedure for multijudge panels. Professor John Rogers began the most recent round of thinking about these vexing issues, arguing that a judge on a multimember panel should never "vote against the result of his or her own reasoning by deferring to a majority on a sub-issue on which the judge differs." We responded, arguing in favor of just such action, which we labeled "issue voting." We criticized Professor Rogers's preferred mode of multimember court adjudication, which we labeled "outcome voting," on the grounds that it provided limited guidance …

Appellate Court Voting Rules, Scott B. Smith

Vanderbilt Law Review

During the 1996 term, the United States Supreme Court made a candid confession about its voting practices. In Seminole Tribe of Florida v. Florida, the Court overruled Pennsylvania v. Union Gas Co. and recognized that when a justice defers to the majority against his or her own reasoning inconclusive precedent results. Union Gas was particularly unusual because Justice White switched his vote to assure a result in a three-remedy case where none of the three remedies had the support of a majority. In Seminole Tribe, the Court admitted Union Gas "has, since its issuance, been of questionable precedential value, largely …

"Issue Voting" By Multimember Appellate Courts: A Response To Some Radical Proposals, John M. Rogers

Vanderbilt Law Review

A judge on a multimember appellate court can vote against the result of his or her own reasoning by deferring to a majority on a subissue on which the judge differs. When Justice White did just this in Pennsylvania v. Union Gas,' soon followed by a similarly anomalous vote by Justice Kennedy in Arizona v. Fulminante, I examined the pool of United States Supreme Court cases in which this kind of voting was possible. Out of more than one hundred fifty earlier cases where one or more of the justices might have voted in such a way, only two justices …

How Outcome Voting Promotes Principled Issue Identification: A Reply To Professor John Rogers And Others, Maxwell L. Stearns

Vanderbilt Law Review

In his provocative article, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals,' Professor John M. Rogers has provided a valuable opportunity for those of us interested in the structural aspects of appellate court decisionmaking--especially Supreme Court decisionmaking--to step back, to compare notes, and to evaluate an increasingly prominent proposal for institutional reform. More importantly, this Colloquium provides an opportunity to explore more deeply several anomalies associated with appellate court decisionmaking. At the outset, I should emphasize that while he devotes a considerable portion of his article to evaluating my scholarship on appellate court decisionmaking, as Professor …

Recovering Environmental Cleanup Costs Under The Resource Conservation And Recovery Act: A Potential Solution To A Persistent Problem, Randall J. Butterfield

Vanderbilt Law Review

The rise of environmental concerns in the 1950s and 1960s' led Congress to adopt a number of statutes designed to curtail the pro- duction of air and water pollution as well as to promote the proper handling, storage, and disposal of those substances capable of contaminating the nation's natural resources. Citizen suit provisions were eventually incorporated into these environmental statutes in an effort to supplement what many perceived to be less than diligent governmental enforcement measures. However, despite early congressional efforts to regulate air and water pollution, disposal of hazardous waste on land went largely unregulated. This legislative oversight resulted …

Venue For Offshore Environmental Crimes: The Seaward Limits Of The Federal Judicial Districts, M. Benjamin Cowan

Vanderbilt Law Review

Consider the following scenario: USA Oil, an American company incorporated in Delaware with its principal place of business in California, has been conducting ongoing oil drilling operations in the Gulf of Mexico. The company operates three oil platforms off the Texas coast. One is located two miles offshore, another six miles offshore, and the third ten miles offshore.

Federal authorities receive notice that on several occasions since the company began operating these rigs, it deliberately allowed large quantities of oil to leak into the Gulf from each of them. The government seeks to indict USA Oil on three counts of …

"Ssc Corp. V. Town Of Smithtown And Usa Recycling, Inc. V. Town Of Babylon:" Reinvigoration Of The Market Participant Exception In The Arena Of Municipal Solid Waste Management, David L. Johnson

Vanderbilt Law Review

Residents and commercial enterprises in the United States generate an enormous amount of solid waste. The responsibility of managing the collection and storage of this waste has traditionally been a municipal function, and disposal of the waste is a dilemma that perpetually confronts the states. With the advent of stricter federal guidelines concerning the disposal of solid waste, state and local governments have been forced to implement creative approaches to handle an ever-increasing supply of garbage.

The two predominant strategies used by local governments to address the dilemma are import restrictions and export restrictions. Import restrictions protect landfills by limiting …

Environmental Reform In An Era Of Political Discontent, Walter R. Burkley

Vanderbilt Law Review

When Congress sought in 1995 to restructure the federal environmental regulatory schemes, it looked like a good fight to pick.' Congress, Republican-controlled for the first time in decades, was armed with an apparent mandate to shrink the federal government. Moreover, Americans were concerned about jobs and the economy. Environmental regulation, so the argument goes, impedes competitiveness, which in turn leads to loss of jobs. In addition, if history is any guide, environmental concerns tend to suffer in times when the economic interest of individuals is the driving political force. Given these dual concerns over the economy and the size of …

Deterring Irresponsible Use And Disposal Of Toxic Substances: The Case For Legislative Recognition Of Increased Risk Causes Of Action, Tamsen D. Love

Vanderbilt Law Review

Increasing risk does not ordinarily result in tort liability. For instance, every speeding driver increases the risk of a traffic accident.' Tort liability, however, attaches only if the driver actually causes an accident, This means that of two reckless drivers who engage in exactly the same risky behavior, one might face great liability, while the other might escape with no liability at all. The difference between the two cases is in many ways a mere fortuity-whether timing and circumstance conspire to cause a traffic accident in a particular case or not. Many acts of reckless driving go unanswered in tort …

Reexamining Copyright's Incentives-Access Paradigm, Glynn S. Lunney, Jr., Glynn Lunney

Vanderbilt Law Review

For the past three centuries, defining the appropriate scope of copyright has entailed an examination of incentives and access.' Broadening the scope of copyright increases the incentive to produce works of authorship and results in a greater variety of such works. Broadening copyright's scope, however, also limits access to such works both generally, by increasing their price, and specifically, by limiting the material that others can use to create additional works. Given these competing considerations, defining copyright's proper scope has become a matter of balancing the benefits of broader protection, in the form of increased incentive to produce such works, …

Public Choice, Public Opinion, And The Fuller Court, Jonathan R. Macey

Vanderbilt Law Review

Everyone has his own, personal view about what role the United States Supreme Court should play in American political life. Conservatives of the Robert Bork variety prefer that supreme court justices treat congressional enactments with great deference and respect.' Liberals of the Laurence Tribe persuasion like judges to take an active role in ensuring certain individual rights, such as the right to abortion, while giving Congress latitude to regulate in the sphere of economic rights. Libertarians of the Bernard Siegan orientation strenuously deny the difference between economic liberties and other sorts of human rights and would have judges actively protect …

Race And Place: Geographic And Transcendent Community In The Post-"Shaw" Era, Lisa A. Kelly

Vanderbilt Law Review

In the Preface to Colored People, Henry Louis Gates, Jr., describes and explains for his daughter, Liza, communities characterized by race. Throughout his memoir, Professor Gates re- creates communities local and communities transcendent. In one passage, he insists that he is "from and of a time and place-Piedmont, West Virginia... slathered along the ridge of 'Old Baldie' mountain like butter on the jagged side of a Parker House roll." The geography of place, even within the small town of Piedmont, is central. Italian neighborhoods in the west, Irish neighborhoods up on "Arch Hill," wealthy white neighborhoods defined by the block …

Faith In Fantasy: The Supreme Court's Reliance On Commutation To Ensure Justice In Death Penalty Cases, Victoria J. Palacios

Vanderbilt Law Review

Since scarcely a decade after Furman v. Georgia,' the Supreme Court has struggled to avoid review of death penalty cases by narrowing the grounds defendants can use to challenge their sentences, as well as the procedures they can use to make those challenges. The Court supports its jurisprudence and the deregulation of death with an important but unexamined assumption: whatever shortcomings exist in the administration of the death penalty, ultimately injustice can and will be avoided by the exercise of the commutation power at the state level.

This Article argues that such an assumption is unwarranted. By substituting the fantasy …

Revoking The "Fishing License:" Recent Decisions Place Unwarranted Restrictions On Administrative Agencies' Power To Subpoena Personal Financial Records, Jack W. Campbell, Iv

Vanderbilt Law Review

The backbone of an administrative agency's effectiveness is the ability to investigate rapidly the activities of entities within the agency's jurisdiction., An agency's ability to carry out its investigative functions depends upon enforcement of the agency's administrative subpoenas. Courts have not always looked favorably upon broad agency subpoena power. The implementation of the New Deal and the exigencies of World War II created a need for increased administrative oversight of national affairs. Courts began to recognize the usefulness of proactive administrative government. Concurrent supreme court decisions reflected this philosophical change by adopting highly deferential views of administrative subpoena enforcement. This …

Speaking Frankly About Copyright Infringement On Computer Bulletin Boards: Lessons To Be Learned From "Frank Music, Nctcom" And The White Paper, Joseph V. Myers, Iii

Vanderbilt Law Review

Copyright law operates primarily as a strict liability, regime whenever infringing behavior constitutes a direct infringement of copyright. When behavior qualifies as an indirect infringement, gaps in copyright protection are filled by principles of contributory and vicarious liability. Although the application of these liability constructs has never been a simple matter, recent growth in the on- line industry has resulted in a dramatic confusion and divergence of views. In particular, the law is currently unclear in two important respects. First, opinions differ greatly as to whether computer bulletin board operators ("sysops") should incur liability for the infringing misdeeds of individual …

Standards For Constitutional Review Of Privacy-Invading Welfare Reforms: Distinguishing The Abortion-Funding Cases And Redeeming The Undue-Burden Test, Susan F. Appleton

Vanderbilt Law Review

As the debate on welfare reform proceeds relentlessly toward what many hope will be a drastically altered system, critics of reform proposals have wisely focused their attention on the competing policy choices faced by Congress and the president (and ultimately perhaps the states). As a result, Congress's avowed determination to limit available funds and to abolish certain entitlements to public assistance has prompted arguments about the merits of programs that might compete for dwindling federal dollars. For example, should Congress stop welfare payments to unmarried teenage mothers? Should it cap the amount of support a family receives, regardless of the …

Nameless Justice: The Case For The Routine Use Of Anonymous Juries In Criminal Trials, Nancy J. King

Vanderbilt Law Review

We ask a lot of our jurors. The financial and emotional burdens of jury duty can be significant even in mundane cases. Deciding another's fate is often a trying ordeal, aggravated by unintelligible instructions, hostile attorneys or court personnel, miserable working conditions, and interminable delays. The voir dire process may require jurors to reveal intimate, embarrassing, or damning information about themselves and their families that they would not voluntarily choose to reveal. Confronted with allegations of violence, injury, or abuse, some jurors become traumatized or ill. On top of all of this, jury service exposes jurors, their families, and their …

The Ills Of The Federal Sentencing Guidelines And The Search For A Cure: Using Sentence Entrapment To Combat Governmental Manipulation Of Sentencing, Robert S. Johnson

Vanderbilt Law Review

Consider the following scenario:' The police conduct an under- cover sting operation targeting drug traffickers. An undercover officer approaches a suspected drug dealer and arranges to purchase crack cocaine. Over a period of five weeks, the suspect makes seven sales to the officer, and the police arrest him after the final sale. The total amount sold by the defendant was 50.4 grams, just enough to place him within the mandatory minimum sentence of ten years. Had he sold up to 49.9 grams, his mandatory minimum sentence would only have been five years. The district court hearing this case found it …

Art Speech, Marci A. Hamilton

Vanderbilt Law Review

Although many scholars have been in favor of providing first amendment protection for art, no one has offered a justification for its constitutional protection suited to art's singular capacities. Rather, commentators and courts have been inclined to place art under the rubric of general speech, which limits protection to ideas and content. Professor Hamilton argues that art offers significantly more than its content and deserves first amendment protection tailored to its particular potential. Art enables individuals to experience unfamiliar worlds and thereby to gain new perspectives on the prevailing status quo, including the government's. It performs this function without exposing …

Tax Exemption And The Health Care Industry: Are The Challenges To Tax-Exempt Status Justified?, Kevin B. Fischer

Vanderbilt Law Review

The provision of health care has traditionally been deemed a charitable function.' Therefore, hospitals and other health care institutions have been afforded the benefits of tax exemption. As a standard for determining which entities merit the tax exemption and which do not, the Internal Revenue Service ("IRS" or "Service") developed what has come to be known as the community benefit test. At the federal level, this test has been the basis for awarding tax- exempt status to hospitals and other health care entities State legislatures have traditionally followed the federal government's standards for tax exemption and have thus allowed health …

Restatement Redux, Anita Bernstein

Vanderbilt Law Review

American products liability buffs, who often have a predilection for history, may remember 1994 as a year of proclaimed harmonization, codification, and restatement. In April 1994 the American Law Institute released the first Council Draft of its Restatement (Third) of Torts: Products Liability. According to the Institute, "[p]roducts liability is highest in priority for reformulation" within the law of torts generally, "for it is socially important and technically complicated."' During the same year, the Republican party announced a Contract With America that promised national reform of products liability; after the November election, the new congressional majority attended promptly to the …

San Filippo V. Bongiovanni: The Public Concern Criteria And The Scope Of The Modern Petition Right, Kara E. Shea

Vanderbilt Law Review

If the "person on the street" were asked to name a right guar- anteed to all Americans by the First Amendment of the United States Constitution, freedom of speech would likely come quickly to mind, along with the concomitant right of free press. The rights to practice one's religion and peaceably assemble, even the judicially created right of free association might follow closely behind. Few people, how- ever, would mention the "right of the people.., to petition the government for redress of grievances."' Fewer still would be able to give a good definition of petitioning, or to describe the types …

Is The Cross-Guarantee Constitutional?, Jennifer J. Alexander

Vanderbilt Law Review

Banks play a unique and important role in our economy. They serve tremendously useful economic functions; for this reason, our society has become irretrievably dependent upon them. Banks safe- guard our life savings and business profits, and provide capital to those who need it to buy, invest, or grow.' Although these functions could be performed without an intermediary-private citizens may freely lend their cash to other private citizens who need it-banks are viewed as safer and more efficient controllers of cash flow. They allow depositors to pool their cash resources collectively in one institution; then, retaining a relatively low amount …

The Brady Bill: Surviving The Tenth Amendment, Amy M. Pepke

Vanderbilt Law Review

In late 1993, Congress passed the Brady Handgun Violence Prevention Act ("Brady Bill")' as an amendment to the Gun Control Act of 1968. By mid-1994, several suits had been initiated challenging the constitutionality of the Bill. Although the plaintiffs in each case brought several claims, the most viable and controversial challenge centers on the Tenth Amendment. Plaintiffs have argued that certain provisions of the Bill unconstitutionally commandeer state resources by imposing mandatory duties on the chief law enforcement officer ("CLEO") of the place of residence of the prospective gun purchaser. Supreme Court decisions on tenth amendment questions have been ambiguous …

Is Democracy Like Sex?, Glenn H. Reynolds

Vanderbilt Law Review

Despite the end of the Cold War, democracy seems to be in bad shape these days. In fact, there has been a modest boom in books and commentary proclaiming either the inadequacy of democracy or its imminent demise. According to at least one commentator, we face the possibility that American democracy will turn out to be a failure. Much has also been made of the gloomy assessments of American democracy contained in recent books by Christopher Lasch and Jean Bethke Elshtain. Such gloom seems a natural follow-on to the generally negative evaluations of democracy as a decision-making device provided by …