Law Commons^™

Quasi-Constitutional Law: Clear Statement Rules As Constitu, William N. Eskridge, Jr., Philip P. Frickey

Vanderbilt Law Review

In one of the most celebrated law review articles of all time, Karl Llewellyn argued that the traditional canons of statutory construction are not reliable guides to predicting judicial interpretations, because for every canon supporting one interpretation there is a counter-canon cutting against that interpretation. He accomplished his tour de force in large part by focusing upon the "referential" canons-rules referring the Court to an outside or preexisting source to determine statutory meaning'-and upon the "linguistic" canons-general conventions of language, grammar, and syntax. Llewellyn did not explore in any detail the "substantive" canons, the clear statement rules or presumptions of …

The Canons Of Statutory Construction And Judicial Preferences, Jonathan R. Macey, Geoffrey P. Miller

Vanderbilt Law Review

A regrettable side-effect of Karl Llewellyn's interesting critique of the canons of statutory construction was that intellectual debate about the canons was derailed for almost a quarter of a century. In his critique, Professor Llewellyn purported to show that the canons of statutory construction were useless as rules for guiding decisions. His claim, that every canon could be countered by an equal and opposite counter- canon, transformed the canons from exalted neutral principles into "conclusory explanations appended after the fact to justify results reached on other grounds."

This Article's first goal is to demonstrate that Karl Llewellyn's critique was largely …

The Costs Of Incoherence: A Comment On Plain Meaning, West Virginia University Hospitals, Inc. V. Casey, And Due Process Of Statutory Interpretation, T. Alexander Aleinikoff, Theodore M. Shaw

Vanderbilt Law Review

Karl Llewellyn's classic article on the canons of statutory construction, which we rightly celebrate in this Symposium, is too clever by half. To the reader untutored in the scholarly literature on statutory interpretation, the "thrust but parry" pairing of the canons is a delightful demonstration of how legal argument is structured in a way guaranteed to maintain discretion in the judiciary and to keep lawyers in business. No case involving a statute is clear cut because the canons can lend support to either side. This means that no lawyer is without an argument, and a judge is free to do …

The Presumption Of Reviewability: A Study In Canonical Construction And Its Consequences, Daniel B. Rodriguez

Vanderbilt Law Review

The much-maligned canons of statutory construction stubbornly have survived, largely on the strength of the assertion that whatever the aim of the statute's interpretation, an interpretive canon will improve the chances that the statute's aim will be realized. Canonical construction serves two different functions. Some of the canons ostensibly are designed as short-cuts to the discovery of the legislature's "true" intent. Professor Geoffrey Miller has explained how the canons may reflect the judicial articulations of conversational conventions that help courts understand otherwise vexing statutory language.' Canons may also serve as surrogates for other, better evidence of legislators' intent. In this …

The Canons Of Statutory Construction And Judicial Constraints: A Response To Macey And Miller, Lawrence C. Marshall

Vanderbilt Law Review

Professors Jonathan Macey and Geoffrey Miller claim to have set out to provide a positivist explanation for why judges ever invoke canons in the course of interpreting statutes.' In truth, though, their question is a far broader one. What they really seek to explain is why judges ever use any interpretive tools in the course of interpreting statutes. Why, Macey and Miller want to know, don't judges simply decide what result in the case will best promote a good outcome on the grounds of public policy, intrinsic fairness, economic efficiency or wealth maximization? This question is perplexing to Macey and …

The National Endowment For The Humanities: Control Of Funding Versus Academic Freedom, Alvaro I. Anillo

Vanderbilt Law Review

In 1989 government funding for the arts through the National Endowment for the Arts (NEA)' came under fire. Conservative groups vigorously attacked two controversial exhibits that received funding from the NEA. As a remedy for this supposedly inappropriate funding, conservative groups lobbied Congress strenuously either to dismantle the NEA or to limit its funding on the basis of content. The arts community responded with a vigorous campaign decrying such limits as an affront to artistic freedom and First Amendment rights. Congress placed the NEA, its funding procedures, and its record under close scrutiny when the agency applied in 1989 for …

The Jurisprudence Of Genetics, Rochelle C. Dreyfuss, Dorothy Nelkin

Vanderbilt Law Review

In recent years, genetic research has ascended the list of national research priorities. From among the many weighty claims on the fisc, Congress has chosen to provide significant federal support for the Human Genome Initiative, a project aimed at mapping the complete set of genetic instructions that form the structure of inherited attributes. Geneticists anticipate that the project will disclose important new in- formation on human development and disease. Some go further. One influential scientist remarked that this work is "the ultimate answer to the commandment 'Know thyself.' ""

The decision to fund this Initiative, the largest biology project in …

The Death Of The Employer: Image, Text, And Title Vii, D. Marvin Jones

Vanderbilt Law Review

It is incredible that our people's faith could have brought them so much they sought in the law and left them with so little they need in life. It is so unfair. Like the crusaders of old we sought our Holy Grail of "equal opportunity," and having gained it in court decisions and civil rights statutes, found the quest to be for naught. Equal opportunity, far from being the means of achieving racial equality, has become yet another device for perpetuating the racial status quo.'

Title VII of the Civil Rights Act of 1964 was hailed as the most important …

Mandatory Planning For Divorce, Jeffrey E. Stake

Vanderbilt Law Review

My daughter Laura will reach the median age of first marriage in about seventeen years.' Alison, her little sister, follows three years be hind. There is a good chance they both will marry. What are the odds that those marriages will work out well? Less than I would like. The strong statistical possibility of divorce is hard to ignore and the prospects upon divorce are not rosy. The economic repercussions of divorce for Laura and Alison could be grim, likely worse than those for their brother Christopher if he were to divorce.' What hope have I that this gloomy situation …

Medicaid, State Cost-Containment Measures, And Section 1983 Provider Actions Under "Wilder V. Virginia Hospital Association", Michael D. Daneker

Vanderbilt Law Review

After the Civil War, Congress enacted a statutory private right of action to ensure the protection of an individual's federal civil rights." This right of action, now codified at Title 42, Section 1983 of the United States Code, creates liability for anyone who, acting under a state law, program, or policy, infringes on an individual's federal rights. Although the authors of Section 1983 intended the statute to serve primarily as a mechanism for the protection of federal constitutional rights, the United States Supreme Court has recognized that Section 1983 is a valid tool for enforcing a wide variety of statutorily …

Matching Tests For Double Jeopardy Violations With Constitutional Interests, Eli J. Richardson

Vanderbilt Law Review

Familiar to most Americans, the double jeopardy clause (the clause) of the Fifth Amendment to the United States Constitution represents an idea so basic that the average person probably would feel comfortable attempting to explain it. Courts confronted with the task of fixing the meaning of the clause and the scope of its protection, how- ever, have found the task to be far from simple. The United States Supreme Court has been no exception.

During the 1989 Term, the Supreme Court continued its ongoing efforts to define double jeopardy protection. In Dowling v. United States the Court held that the …

Offensive Uses Of The Bankruptcy Stay, Daniel Keating

Vanderbilt Law Review

One of the most significant features of the 1978 Bankruptcy Reform Act was markedly broadened versions of the automatic and postdischarge stays. If bankruptcy is the refuge for the honest but unfortunate debtor,' then the stay is the specific tool that makes the refuge meaningful. Indeed, more than one court has characterized the stay as a shield that gives the corporate debtor an opportunity to reorganize and affords the individual debtor a chance for the proverbial fresh start. Even courts mindful of the debtor-protection function of the stay, however, are careful to note that the debtor should use the stay …

Agreements For Cooperation In Criminal Cases, Graham Hughes

Vanderbilt Law Review

In criminal prosecutions, both state and federal, closely negotiated agreements for immunity and lenient plea bargaining in return for co- operation have acquired considerable importance. These agreements are an ancient practice now wearing sophisticated modern dress. They may arise in complex white-collar crime cases, organized crime cases, narcotics prosecutions, and, from time to time, in other prominent major felony cases. They constitute a phenomenon that differs in important ways from the run-of-the-mill guilty pleas that characterize our metropolitan courts and recently have preoccupied students of the criminal system. Unlike the ordinary guilty plea, the suspect or defendant in co- operation …

The Burden Of Proving Competence To Stand Trial: Due Process At The Limits Of Adversarial Justice, Benjamin J. Vernia

Vanderbilt Law Review

A defendant's mental competence to stand trial is a fundamental prerequisite to participation in our adversarial system of criminal justice, but proving that this requirement is satisfied presents unique challenges. While an incompetent defendant's inability to comprehend the nature of the proceedings or to assist his attorney challenges the very validity of the adversarial system, most jurisdictions rely on that same adversarial system to resolve questions of competence. These questions about the competence of the defendant and the legitimate scope of the adversarial system all arise in the context of the competency hearing procedure.

The burden of proof in competency …

The "Sudden And Accidental" Exception To The Pollution Exclusion Clause In Comprehensive General Liability Insurance Policies: The Gordian Knot Of Environmental Liability, Sharon M. Murphy

Vanderbilt Law Review

From 1973 to 1985, comprehensive general liability (CGL) insur- ance policies contained a pollution exclusion clause.' The plethora of litigation spawned by this clause, however, has done little to clarify either its meaning or its relationship to the policy as a whole.' Uncertainty regarding the scope of liability coverage under this clause drives many of the hazardous waste and toxic tort lawsuits filed. Courts have interpreted the pollution exclusion clause variously, often admitting that the law in this area is a confusing array of policy arguments and conflicting drafting histories. Part II of this Note sets forth the historical framework …

Barnes V. Glen Theatre, Inc.: Nude Dancing And The First Amendment Question, Zachary T. Fardon

Vanderbilt Law Review

Erotic dancers Gayle Sutro, Carla Johnson, and Darlene Miller can no longer dance nude in Indiana. In Barnes v. Glen Theatre, Inc. the United States Supreme Court held that Indiana's prohibition of nude dancing did not violate the First Amendment to the United States Constitution. The Court's holding ended years of controversy and debate over Indiana's public indecency statute.

In 1979, in State v. Baysinger, the Indiana Supreme Court held that Indiana's public indecency statute could be used to prohibit nude dancing. The court stated that the statute could not prohibit some larger forms of expression involving the communication of …

State Constitutional Analyses Of Public School Finance Reform Cases: Myth Or Methodology?, Jonathan Banks

Vanderbilt Law Review

The public education system in the United States fails to educate economically disadvantaged children. Students from poor families are more likely to repeat grades,' to have below average basic academic skills, to drop out of school, and to forego attending college. These gaps in educational achievement translate into an inability to compete effectively in the employment market place. In an attempt to remedy these inequalities, plaintiffs have attacked the most obvious source of disparity: state school financing schemes.

Anticipatory Search Warrants: The Supreme Court's Opportunity To Reexamine The Framework Of The Fourth Amendment, David P. Mitchell

Vanderbilt Law Review

The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures," and provides that "no War-rants shall issue, but upon probable cause."' Although its language is relatively clear, the application of the Fourth Amendment has created more controversy than the application of perhaps any other constitutional amendment.' Given the questions raised by a police-endorsed practice of anticipatory search warrants,' the search and seizure debate is far from over.

An anticipatory search warrant is a warrant based on a showing of probable cause that particular evidence of a crime will exist at a specific location in the future. Challenges …

Limitation Periods For Federal Causes Of Action After The Judicial Improvements Act Of 1990, M. Patrick Mcdowell

Vanderbilt Law Review

Congress often enacts statutes that create specific causes of action for aggrieved individuals. Many federal statutes, however, create duties with no corresponding action for breach, leaving courts to create causes of action for individuals owed those duties.' When the courts, rather than Congress, create a cause of action, no specific statute of limitations governs the suit. Surprisingly, many statutory causes of action also lack limitation periods." Courts frequently face actions not governed by any statute of limitations because traditionally there has been no general statute of limitations governing all federal actions.

Courts usually are not content to find that a …

Out Of Focus: The Misapplication Of Traditional Equitable Principles In The Nontraditional Arena Of School Desegregation, Joseph H. Bates

Vanderbilt Law Review

Karl Marx wrote that all historical facts occur twice--the first time as tragedy, the second time as farce.' In the desegregation of Little Rock, Arkansas, the genres were reversed. In 1957 the opportunistic Governor Orvall Faubus reduced to farce the Little Rock Board of Education's initial attempt to comply with the United States Supreme Court's decree in Brown v. Board of Education when he ordered the Arkansas National Guard to prohibit nine black students from entering Little Rock High School. In 1983, after more than two decades of continuous court supervision and intermittent litigation, the tragedy began when the Little …

Employer Sexual Harassment Liability Under Agency Principles:A Second Look At Meritor Savingsbank, Fsb V. Vinson, Michael J. Phillips

Vanderbilt Law Review

With its 1986 decision in Meritor Savings Bank, FSB v. Vinson,the United States Supreme Court put its imprimatur on the Title VII sexual harassment cause of action that had emerged over the preceding decade. Early commentary on the case tended to emphasize this aspect of the Court's decision or to speculate about Meritor's impact on the future course of Title VII sexual harassment litigation. Getting relatively short shrift in this early commentary, however, was the Court's command that "agency principles" --the common law of agency-- be consulted to determine an employer's liability for harassment committed by its employees.' As subsequent …

Two Sides Of The Same Coin: The Potential Normative Power Of American Cities And Indian Tribes, Kevin J. Worthen

Vanderbilt Law Review

People do not normally associate cities with Indian reservations.The mental images typically conjured by each term are radically different. For most people, "city" evokes visions of skyscrapers, streets teeming with traffic, and bustling crowds. "Indian reservation," on the other hand, brings to mind pictures of solitude, rugged nature, and large empty spaces.

Perhaps for that reason, few think of city governments' and tribal governments in similar terms. The two entities usually are oblivious of one another. When they are introduced, it is often as adversaries in a legal battle concerning the right to govern some rural western community.

Yet, the …

Our Better Natures: A Revisionist View Of Joseph Sax's Public Trust Theory Of Environmental Protection,And Some Dark Thoughts On The Possibility Of Law Reform, Richard Delgado

Vanderbilt Law Review

When Professor Joseph Sax wrote his famous Public Trust article in 1970, the environmental movement was in a state of agitation and flux. Commentators were writing about plastic trees, Ways Not to Think About Plastic Trees, and whether we should bestow legal rights on natural objects. The Green Movement took hold in Europe, and in the United States scholars, activists, and ordinary citizens were calling for greater attention to the problems of decreasing quality of life, increasing pollution, and over development of the nation's farm and wilderness lands.

The time was exactly right for Sax's article. Sax proposed a simple,easily …

Tapping The State Court Resource, Ann Althouse

Vanderbilt Law Review

Supreme Court opinions about federal jurisdiction usually feature painstaking analysis of the text of statutes and constitutional clauses and the intentions of those who authored them, or they are based on long-standing traditions of equity jurisprudence. But, as the Court's many divided decisions attest, these materials are scarcely clear enough to determine all outcomes. Thus, the Justices often seem to weigh various interests when they draw the lines around federal jurisdiction. The Court sometimes openly acknowledges this interest weighing, referring to "state interests" and "federal interests."

Justice Stevens has taken exception to this process. He has ob- served that much …

Civil Images Of Battered Women: The Impact Of Domestic Violence On Child Custody Decisions, Naomi R. Cahn

Vanderbilt Law Review

The purpose of child custody decisions is to develop an arrangement that is in the best interest of the child by awarding the child to one or both natural parents.' The critical factors in determining the child's best interest are those that have a direct impact on the child and the child's relationships. The question of which factors are most relevant to the child's best interest is unsettled,' and the answers that have been developed are "highly contingent social construction[s]." This Article examines one factor that is directly related to children's relation- ships and well-being, yet is rarely included in …

The Priority Battle Over Returned And Repossessed Goods, Michael A. Birrer

Vanderbilt Law Review

Article 9 of the Uniform Commercial Code (the Code) governs secured transactions in personal property and fixtures.' When more than one creditor has a security right in the same piece of collateral, the Article 9 rules of priority determine the order in which each creditor may satisfy his claim. The creditor with the highest priority rank gets paid first, and, if his claim exceeds the amount of the proceeds, junior creditors take nothing. Consequently, creditors want to determine their priority rights in collateral before extending credit. If one creditor determines that another creditor will have priority over its security interest, …

Albrecht After Arco: Maximum Resale Price Fixing Moves Toward The Rule Of Reason, Roger D. Blair, Gordon L. Lang

Vanderbilt Law Review

For some time, both economic and legal commentators have recognized the economic irrationality of the Supreme Court's ruling in Albrecht v. Herald Co. which prohibited the imposition of maximum resale prices by a supplier on its resellers. Ordinarily, unwise decisions receive critical reviews and eventually lose their force as they are over-ruled explicitly or by implication in subsequent decisions. In order for this evolution to occur, however, the Court must be presented with an opportunity to alter its earlier rulings. Recently, the Supreme Court had just such an opportunity to revisit the Albrecht rule in Atlantic Richfield Co. v. USA …

The Lingering Legacy Of "In Loco Parentis": An Historical Survey And Proposal For Reform, Brian Jackson

Vanderbilt Law Review

The changing legal relationship between students and their college or university reflects the evolution of higher education in this country. During the Colonial period and the early years of the Republic, higher education was conducted mainly through small, church-affiliated colleges. In most cases, the founders and faculties of early American schools imitated the collegiate systems of Oxford and Cambridge. Stu- dents and their teachers aspired to withdraw from the world of everyday affairs to live and work in an environment that mirrored the families students left behind. Faculties were concerned not only with intellectual advancement but also with the development …

Baseball And Chicken Salad: A Realistic Look At Choice Of Law, Harold G. Maier

Vanderbilt Law Review

Most conflict of laws teachers come to their calling because they are fascinated with the intellectual variety of the subject matter and the sense of systemic universality that pervades the legal decisions with which they work. We deal, after all, with some very fundamental aspects of law and the legal system in a world of fascinating abstractions mixed with concrete decisions. Although I have taken no survey, conversations with many of my colleagues suggest that they, as did I, found the course Conflict of Laws in the second or third year of law school to be one that reawakened the …

People's Court, Nicholas S. Zeppos

Vanderbilt Law Review

The Supreme Court's opinion in Bowers v. Hardwick' contains the usual cant about the legitimacy of the judicial function. In holding that the due process clause of the fourteenth amendment does not recognize a fundamental right to practice homosexual sodomy, the Court cautioned that "[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. What exactly did the Court mean? That the public would refuse to obey judicial judgments if the Court were to recognize rights not "found in" …