Law Commons^™

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

Vanderbilt Law Review

In July 1788 the North Carolina legislature was considering ratification of the Constitution, a constitution that did not contain a Bill of Rights. As the delegates reached the Religious Test Clause, Henry Abbot remarked:

"Some are afraid... that, should the Constitution be received, they would be deprived of the privilege of worshiping God according to their consciences, which would be taking from them a benefit they enjoy under the present constitution. They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws in- fringing their religious liberties.... …

The Critical Condition Of The Emergency Medical Treatment And Active Labor Act: A Proposed Amendment To The Act After "In The Matter Of Baby K", Scott B. Smith

Vanderbilt Law Review

Congress enacted the Emergency Medical Treatment and Active Labor Act ('EMTALA" or "the Act") in 1986 to prevent hospi- tals from "dumping" patients due to an improper economic motive. Patient dumping occurs when a hospital emergency room either refuses to admit an indigent and uninsured patient with an emergency condition or improperly transfers this patient to another hospital. Congress enacted EMTALA in response to the widespread practice of hospitals dumping indigent and uninsured patients. Yet despite the Act's explicit legislative intent to prevent patient dumping, the language of EMTALA extends protection to "any individual" who enters a hospital's emergency room. …

A Coherent Methodology For First Amendment Speech And Religion Clause Cases, Thomas R. Mccoy

Vanderbilt Law Review

It seems clear that any deliberate effort by government to impose religious orthodoxy will be held unconstitutional per se. A religiously motivated restriction on disfavored religious practices will be held to violate the Free Exercise Clause. Similarly, a religiously motivated attempt to promote or subsidize favored religious practices will be held to violate the Establishment Clause. These complimentary restrictions are now so ingrained in our political culture that the legislatures rarely transgress them.

The problem that has bedeviled the Supreme Court for many years is that government regulatory schemes and benefit programs designed to serve purely nonreligious objectives inevitably impact …

Of Agriculture's First Disobedience And Its Fruit, Jim Chen

Vanderbilt Law Review

What God has created, agrarian debate has torn asunder. As successors to the neolithic agrarian pioneers' who chose to secure the blessings of agriculture to themselves and their posterity, we long to understand our common roots. But the deeper we dig, the more bitterly we dispute the exegesis of our shared stories of origins. Nothing has more explosive potential than a return to first principles, a quest for beginnings.

As the most palpable link between humanity and nature, agriculture often acts as a stark mirror of human values. American agricultural prescriptions frequently invoke the Book of Genesis, the grandest and …

Tort Reform And The Tax Code: An Opportunity To Narrow The Personal Injuries Exemption, Robert C. Illig

Vanderbilt Law Review

The Internal Revenue Code (the "Code") defines income broadly to include wealth from almost every source, while at the same time exempting a number of items for various tax and public policy reasons. One such policy-based exemption is section 104(a)(2)-the Personal Injuries Exemption-which exempts from tax "any damages ... received on account of personal injuries or sickness." The Personal Injuries Exemption, however, exists in a state of disarray and needs amending. Since its inception, this exemption has lacked both clear definitions of its key terms and a sound theoretical foundation. Moreover, although courts traditionally read exemptions narrowly, they have interpreted …

Department Of Revenue Of Montana V. Kurth Ranch: The Demise Of Civil Tax Fraud Consequences?, Theresa M. Elliott

Vanderbilt Law Review

In Department of Revenue of Montana v. Kurth Ranch' the United States Supreme Court held, for the first time, that a state tax statute violated the Double Jeopardy Clause of the Federal Constitution. The future impact of this decision has been the subject of much recent speculation. In particular, commentators have debated Kurth's effect on the civil consequences labeled "additions to tax' found in the Internal Revenue Code which are assessed and collected in connection with criminal taxpayer fraud. These additions were examined in Helvering v. Mitchell over fifty years ago, and up-held against a double jeopardy challenge. However, the …

The End Of Copyright, David Nimmer

Vanderbilt Law Review

One December 8, 1994, Congress ended the experiment that it commenced on May 31, 1790, in the first Judiciary Act:' legislating an autonomous body of United States copyright law governed by the Copyright Clause of the Constitution. We witnessed, on December 8, a major change of constitutional proportions; even more significantly, we experienced the first tremors of certain tectonic shifts in United States sovereignty; and, perhaps most significantly, we undertook a sea change in defining the end that copyright serves, the identity of the master in the copyright sphere.

I refer to enactment of the Uruguay Round Agreements Act (the …

Using Agency Principles For Guidance In Finding Employer Liability For A Supervisor's Hostile Work Environment Sexual Harassment, Glen A. Staszewski

Vanderbilt Law Review

Title VII of the Civil Rights Act of 1964, as amended 'Title VII," prohibits sexual harassment in the workplace.' The courts have created two categories of sexual harassment. The first, quid pro quo sexual harassment, occurs when a supervisor requires sexual consideration from an employee in exchange for job benefits. The second, hostile work environment sexual harassment, occurs when an employee is subjected to unwelcome sexual harassment that affects a term, condition, or privilege of employment. The victim must prove that the harassment is sufficiently severe or pervasive to alter the conditions of hers employment and create an abusive working …

The American Ideology, Jim Chen

Vanderbilt Law Review

America, so the world supposes, won the Cold War. Market capitalism and liberal democracy have triumphed over central planning and the dictatorship of the proletariat. American agriculture can measure the magnitude of its victory by the sheer number of academics invited East to advise former Soviet farmers on how to restore the agricultural productivity that once made Russia and Ukraine the coveted Heartland of European geopolitics.' America's finest land grant professors are now teaching the heirs of a fallen farmers' and workers' paradise how to rebuild an agricultural economy gutted by decades of collectivization, state ownership, and ecological mismanagement.

Many …

Firing The First Lady: The Role And Accountability Of The Presidential Spouse, Carl D. Wasserman

Vanderbilt Law Review

The First Lady is asked by her husband to head a task force to assist him in developing health care policy. The fear of outside influence sparks the task force to meet in secrecy. The Federal Advisory Committee Act, however, forbids closed meetings of this type unless all members of the committee are officers or employees of the federal government. May the meetings be kept secret despite the First Lady's presence?

Immediately after leaving the White House, the First Lady is hired to lobby for Columbia/HCA, a major health care corporation. Illegal?

The chairman of a large corporation meets with …

Introduction: Current Issues In Sexual Harassment Law, Kenneth L. Pollack

Vanderbilt Law Review

In the two decades since the first federal court' recognized sexual harassment as a form of sex discrimination under Title VII,2 sexual harassment has become an oft-discussed and increasingly litigated issue. The cause of action for sexual harassment arose as a result of the feminist revolution that brought women into the work- force in unprecedented numbers. Women began to hold positions previously occupied by men and to demand equal treatment, respect, and dignity. Some believe that women have already achieved equality in the workplace. The issue of sexual harassment, however, continues to spawn much debate as the role of women …

The Separate Tax Status Of Loan-Out Corporations, Mary Lafrance

Vanderbilt Law Review

When professionals and other persons who offer their goods and/or services to the public conduct their businesses through corporations, the Treasury has acknowledged that for federal income tax purposes it must treat those corporations as separate and distinct from their controlling shareholder- employees, even where there is only a single shareholder-employee, provided that the corporation has a business purpose and the taxpayer consistently respects the corporate form. However, the Treasury has refused to accord equal dignity to incorporated workers who offer their services not to the public at large but to a single recipient or a small number of recipients. …

Inefficiency In The Market For Initial Public Offerings, Jonathan A. Shayne, Larry D. Soderquist

Vanderbilt Law Review

The market for initial public offerings ("IPOs") of common stock is inefficient, and this fact is not reflected in securities law. New statistical evidence shows that, on average, companies go public at times when the general stock market is priced 22.7% higher than its normal level, and that underwriters sell IPO stock at a further 12.5% premium to the prevailing, high market. These two figures are based on the long-term performance of IPOs and comparable non-IPO stocks over the period 1970 to 1990, and are consistent with the beliefs of knowledgeable practicing investors.

The value and number of IPOs varies …

Judgment, Philippe Nonet

Vanderbilt Law Review

To judge, in Latin judicare, is to say the law, jus dicere, whence juris-dictio.

The above sentence is a possible answer to the question: what is judging? It spells out what the word "to judge" says, by recalling the history from which the word originates. Why would anyone ask this question? How helpful is such an answer?

Everyone knows what it is to judge. Only on the ground of such self-evidence could there be that unabating debate on the ' justification" of particular judgments, which is the day to day business of lawyering. Only because the question can be passed …

The Forgotten Interest Group: Reforming Title Vii To Address The Concerns Of Workers While Eliminating Sexual Harassment, Hannah K. Vorwerk

Vanderbilt Law Review

Since 1980, Equal Employment Opportunity Commission ("EEOC") guidelines have made employers liable for harassment perpetrated by their agents and supervisory employees, and, in some cases, for harassment occurring between co-workers in their employ. In 1991, Congress amended Title VII (the "Act") to provide compensatory and punitive damages for victims of sexual harassment. The increased damages heightened the stakes in lawsuits concerning employer liability for sexual harassment, and thus provided increased incentives for employers to implement sexual harassment policies and to discipline harassers.

The extant EEOC guidelines already had defined sexual harassment broadly to include "verbal or physical conduct of a …

Proving Welcomeness: The Admissibility Of Evidence Of Sexual History In Sexual Harassment Claims Under The 1994 Amendments To Federal Rule Of Evidence 412, Paul N. Monnin

Vanderbilt Law Review

In contemporary sexual harassment litigation, this statement reflects a prevailing defense tactic. To establish a prima facie case of sexual harassment, plaintiffs must affirmatively demonstrate that they were subject to "unwelcome" sexual advances. Defense lawyers utilize this standard to discover and admit evidence of the victim's prior sexual behavior to show invitation to or provocation of the alleged misconduct. While such practices may seem repugnant, their purpose is readily discernible. By disclosing the intimate details of plaintiffs' sex lives, defense lawyers, with the sanction of sexual harassment law, force claimants to think twice about continuing their claims. Potential plaintiffs might …

Hooters: Should There Be An Assumption Of Risk Defense To Some Hostile Work Environment Sexual Harassment Claims?, Kelly C. Timmons

Vanderbilt Law Review

In 1993 several former waitresses at the restaurant "Hooters" sued the chain for sexual harassment. The lawsuits alleged that Hooters established a work environment in which its customers felt free to make sexual comments and advances to its waitresses.' Examples of the offensive nature of the work environment included the name of the restaurant ("Hooters," a slang term for women's breasts) and the sexually provocative uniforms the waitresses were required to wear. Responses to the lawsuits varied widely. Some individuals took the view that Hooters should be found liable for the sexual harassment of its waitresses by its customers, while …

Dean John W. Wade, Gilbert S. Merritt

Vanderbilt Law Review

John Webster Wade, one of the outstanding men in the history of Nashville-an unsung hero at home, but a nationally acclaimed scholar and teacher in the world of law--died recently at age eighty- three without sufficient public notice and recognition. During his life, he had more influence on the shaping of the legal system and the law in Tennessee than any politician or judge, and he had as much influence on the national legal system as any other Tennessean of his generation.

As a young Marine Corps 2nd Lieutenant in World War II, he guided troops through the bloody battles …

Introduction: Dean John W. Wate -- A Fitting Tribute, Victor Schwartz

Vanderbilt Law Review

I express my deepest appreciation to the editors of the Vanderbilt Law Review for permitting me the honor of writing this tribute to Dean John W. Wade, my dear partner in scholarship and co-author for over two decades.

It is a privilege to join with the Honorable Gilbert S. Merritt, and distinguished attorney John Frank who have warmly, skillfully and accurately portrayed a few of the highlights of Dean Wade's distinguished life.

Dean Wade's scholastic works, extraordinary development of Vanderbilt Law School, and impact on the law of torts will always remain. His special skill in balancing his professional activities …

Common Sense And Other Legal Reforms, Carl Tobias

Vanderbilt Law Review

The Contract with America (the "Contract") was the centerpiece of the Republican Party's strategy in the 1994 congressional campaigns. The Common Sense Legal Reforms Act (CSLRA") was the ninth tenet and a critical constituent of the Contract, which the Republican Party promised that the new Congress would vote upon within one hundred days. Once the Grand Old Party swept into office, capturing the House of Representatives for the first time in four decades, many members of Congress were expressly committed to honoring the Contract with America. Accordingly, nearly one hundred Republican sponsors introduced the Common Sense Legal Reforms Act during …

Bad Actor Statutes: An Environmental Trojan Horse?, Melissa J. Horne

Vanderbilt Law Review

Congress and the state legislatures have manifested their increasing concern for environmental protection over the past several years by focusing more attention on the punishment of those who violate environmental protection requirements. Rather than seeking to enforce environmental standards merely through civil penalties, lawmakers have imposed criminal penalties, including fines and even jail sentences, on those who violate environmental requirements, from plant managers all the way up the ladder to corporate officers.'

Lawmakers and agency officials have not limited their efforts to the conviction and punishment of environmental criminals, however. Many states have adopted so-called "bad actor" statutes that allow …

Restating Strict Liability And Nuisance, Robert E. Keeton

Vanderbilt Law Review

John Wade was a master of the craft of restating the law. The American Law Institute ("ALI") benefitted especially from his distinctive service during development of the Restatement (Second) of Torts. It is fitting that we use, as a vehicle for honoring his service, an inquiry into a segment of tort law that was first considered in the decades just after the Institute was founded and remains, even today, among the most difficult areas of law to restate. This segment of tort law concerns the general theory of strict liability and the extent that it applies to nuisance cases.

To …

John W. Wade, John P. Frank

Vanderbilt Law Review

John Wade's most distinguishing quality was his capacity for friendship. He was a great scholar; his bibliography runs for pages. He was a great teacher and law school administrator; he took over the Vanderbilt Law School when it had a hundred students and no physical home of its own and built it into a great regional institution with an admirable building. He was a great reporter for the American Law Institute. He was a war hero.

But memory dwells especially on that capacity for friendship. I have read some of the memorial letters: Our colleague, Lawrence Walsh, in a handwritten …

The Schizophrenia Of Risk-Benefit Analysis In Design Defect Litigation, Michael D. Green

Vanderbilt Law Review

To employ a well-worn, but nevertheless appropriate cliche, it is a genuine honor to participate in the Vanderbilt Law Review's memorial to Dean John Wade. Wade stands tall as a leading figure of legal academe in the twentieth century. While I have profited from many illuminating hours with his scholarship, I regret that my association with him personally was limited to one lengthy luncheon meeting, still vivid, despite the passage of many years. I still recall his kindliness and gentility, his dry, but very real sense of humor, his humility and vigilance in avoiding taking himself too seriously, his thoughtfulness …

In Search Of The Law Of Products Liability: The Ali Restatement Project, Marshall S. Shapo

Vanderbilt Law Review

The American Law Institute's ("ALI") involvement with the subject of products liability is developing as one of the most interesting sagas in the modern private law. This Article explores the ALI's efforts to rationalize the subject. Reviewing the ALI's contributions to the evolution of the law in this area, the Article also asks how the Institute should treat the subject in the future, an inquiry that leads us to the broader question of the role of Restatements of the Law in the twenty-first century. In press as Congress considers proposals for sweeping federalization of products liability law, the Article raises …

Efficiency, Fairness, And Common Sense: The Case For One Action As To Percentage Of Fault In Comparative Negligence Jurisdictions That Have Abolished Or Modified Joint And Several Liability, John S. Hickman

Vanderbilt Law Review

Plaintiffs are the masters of their own actions.' They decide when, where, and whom to sue. Although the law has evolved in ways that limit a plaintiffs procedural choices, plaintiffs enjoy a growing number of situations in which they can recover, and an increase in the number of possible defendants For example, governmental tort liability statutes, while limiting procedural choices, now allow plaintiffs to sue government entities. Modern jurisdictional rules give courts a wider reach and thus enable plaintiffs to reach more defendants in one action. Perhaps most importantly, a plaintiffs own negligence no longer bars recovery in most jurisdictions. …

Who's Black, Who's White, And Who Cares: Reconceptualizing The United States Definition Of Race And Racial Classifications, Luther Wright, Jr.

Vanderbilt Law Review

How much would it be worth to a young man entering upon the practice of law, to be regarded as a white man rather than a colored one?... Probably most white persons if given a choice, would prefer death to life in the United States as a colored person.... Indeed, [being white] is the master-key that unlocks the golden door of opportunity.

There is no law of the United States, or of the state of Louisiana defining the limits of race-who are white and who are "colored'? By what rule then shall any tribunal be guided in determining racial character? …

Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber

Vanderbilt Law Review

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. Past censors, however, also relied heavily on principles that libertarians in their generation thought justified almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech in- consistent with what they believe are basic constitutional values. This claim repudiates a basic …

The Protection Of Privacy In Health Care Reform, Paul M. Schwartz

Vanderbilt Law Review

Legal regulation of the privacy of medical information is now at a critical stage. Americans are highly concerned about the processing and use of their personal data. Over three-quarters of the public currently believes that the individual has lost control of how personal information is circulated and applied by companies., Indeed, a recent poll reveals that those who know the most about the current protection of medical information-physicians, heads of medical societies, health insurers, and hospital CEOs-are also the most concerned about threats to personal privacy.

Social concern about the threat to informational privacy has resulted in strong approval for …

In Search Of A Bright Line: Determining When An Employer's Financial Hardship Becomes "Undue" Under The Americans With Disabilities Act, Steven B. Epstein

Vanderbilt Law Review

The employment provisions of the Americans with Disabilities Act have been fully effective since July 26, 1994. These provisions require all employers with fifteen or more employees to reasonably accommodate the disabilities of job applicants and employees. Reasonable accommodation can be very expensive: one in every twenty accommodations now being made costs more than $5,000. Although the ADA permits employers to refuse to make accommodations that would cause an "undue hardship," neither the statute nor its implementing regulations provide meaningful guidance regarding how great an accommodation expense must be before the point of "undue hardship" is attained. Consequently, neither employers …