Law Commons^™

Privacy In The First Amendment: Private Facts And The Zone Of Deliberation, James R. Beattie, Jr.

Vanderbilt Law Review

It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose.

The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by …

Criminal Discovery, Scientific Evidence, And Dna, Paul C. Giannelli

Vanderbilt Law Review

"At bottom the case against Claus von Bilow was a scientific case. It would have to be refuted by scientific evidence,"' wrote Alan Dershowitz. The von Bilow case is not alone. Many recent notorious criminal trials involved scientific proof. For example, the prosecution offered hypnotically refreshed testimony and bite mark evidence in the Ted Bundy case. Fiber evidence proved critical in the trial of Wayne Williams for the murder of two of the thirty young black males killed in Atlanta in the late 1970s.' Other illustrations include the pathology and serology testimony in the Jean Harris trial, the forensic analysis …

Controlling Campaign Spending And The "New Corruption": Waiting For The Court, Gerald G. Ashdown

Vanderbilt Law Review

Preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.'

This statement by the United States Supreme Court appears to present its position on campaign finance restrictions. It must be viewed, however, in juxtaposition to other often quoted language of the Court concluding that restricting the speech of one in an effort to enhance that of another is contrary to the first amendment. These conclusions led the Court to the dichotomous holding in Buckley v. Valeo that campaign contribution restrictions contained in the Federal Election Campaign Act (FECA) …

Retracing The Antitrust Roots Of Section 1972 Of The Bank Holding Company Act, Daniel Aronowitz

Vanderbilt Law Review

In 1956 Congress enacted the Bank Holding Company Act' (BHCA) to provide safeguards against undue concentration in the control of banking activities. Congress intended the regulations to protect the economy from anticompetitive combinations of banking and non- banking enterprises held under singular control. Still concerned with the faded "line" between banking and commerce, in 1970 Congress in- creased the scope' of the BHCA with a series of amendments, including an anti-tying provision.

Specifically, 12 U.S.C. section 1972 prohibits anticompetitive practices that "require bank customers to accept or provide some other service or product or refrain from dealing with other parties" …

Prescription Drug Approval And Terminal Diseases: Desperate Times Require Desperate Measures, John P. Dillman

Vanderbilt Law Review

It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose. The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by …

Introduction: Civil Rights In The Workplace Of The 1990s, Sandi R. Murphy

Vanderbilt Law Review

Throughout history courts and legislatures alternatively have enlarged and diminished civil rights protections." Today, employment discrimination claims are the most commonly litigated civil rights cases. A succession of cases decided by a new conservative majority of Justices during the 1988 Supreme Court Term has altered radically the delicate balance of civil rights in the workplace. The then prevailing economic, political, and legal environment seemed to be impervious to any advances in employment discrimination protections.

Since that Term, courts and legislatures at the state and federal levels have promulgated a confusing combination of advances and re- treats in employment discrimination law. …

Reexamining Trademark Dilution, David S. Welkowitz

Vanderbilt Law Review

It is unlikely that you ever will see a Kodak chair or a Rolls Royce candy bar. No doubt Eastman Kodak and Rolls Royce would have an army of lawyers in court to have the interlopers sentenced to ignominy (unless, of course, these companies suddenly went into the furniture or candy business). But suppose you did see these products. What would you think? Would you think that Kodak was diversifying? Would you believe that Rolls Royce had gone the way of Calvin Klein, apparently licensing its name for a fast profit? And if not, would these interlopers affect the way …

Addiction As Disability: The Protection Of Alcoholics And Drug Addicts Under The Americans With Disabilities Act Of 1990, Reese J.J. Henderson

Vanderbilt Law Review

With the passage of the Americans with Disabilities Act of 1990 (ADA), Congress finally acknowledged that employment discrimination against the disabled continues to be a serious problem in the United States. Approximately forty-three million Americans are disabled. As many as two-thirds of disabled individuals of working age are unemployed, and half of all adults with disabilities have household incomes of fifteen thousand dollars or less. Although most unemployed disabled individuals depend on insurance payments or government benefits for support, polls reveal that a majority would rather work than depend on such assistance. The ADA provides a comprehensive plan for main-streaming …

Reworking The Warrant Requirement: Resuscitating The Fourth Amendment, Phyllis T. Bookspan

Vanderbilt Law Review

Ninety-three years ago, in response to a newspaper account, Mark Twain wrote: "The reports of my death are greatly exaggerated." While it may be premature to sound the death knell for the fourth amendment, it is no exaggeration to suggest that unless drastic action is taken to remedy the destructive erosion of the fourth amendment, it may as well be buried.

Current search and seizure doctrine is inconsistent and incoherent.' No one, including the police who are to abide by it, judges who apply it, or the people who are protected by it, has any meaningful sense of what the …

Reversing The Presumption Of Employment At Will, Peter S. Partee

Vanderbilt Law Review

The doctrine of employment at will has been a fixture of American common law for approximately a century. In its pristine form, the doctrine is a rule of construction, establishing a rebuttable presumption that the terms of an employment agreement permit either the employer or the employee to terminate the relationship at any time and for any reason.' Unless the employee rebuts the at-will presumption by adducing evidence of an explicit agreement to the contrary, an employer may fire the employee for good cause, no cause, or bad cause without incurring any legal liability.' Experts have estimated that up to …

Exploring A Second Level Of Parity: Suggestions For Developing An Analytical Framework For Forum Selection In Employment Discrimination Litigation, Susan E. Powley

Vanderbilt Law Review

In April 1990 in Yellow Freight System, Inc. v. Donnelly, the United States Supreme Court resolved a split among the circuit courts and held that state and federal courts have concurrent jurisdiction over Title VII claims." This decision strengthens a presumption that state courts, as a whole, can be equal to their federal counterparts in adjudicating federal employment discrimination claims. It also further complicates the process of forum selection for employment discrimination litigants. Because plaintiffs now may present Title VII claims in state court, the doctrine of res judicata will bar any subsequent presentation of Title VII claims in federal …

Not So Cold An Eye: Richard Posner's Pragmatism, Jason S. Johnston

Vanderbilt Law Review

Over the past twenty odd years, Judge Richard Posner has established himself as one of the most creative and influential thinkers in the history of American law. His work divides into two parts: the prejudicial corpus, which is devoted almost entirely to the comprehensive economic analysis of law,' and the postjudicial corpus, which treats issues involving what may be called the theory of judging and courts--that is, the normative theory of how judges should decide cases and how courts should be organized. This division is rough and wavering, for Posner's work prior to his appointment to the federal bench often …

The Defeat Of The Civil Rights Act Of 1990: Wading Through The Rhetoric In Search Of Compromise, Cynthia L. Alexander

Vanderbilt Law Review

On October 22, 1990 President Bush vetoed the Civil Rights Act of 1990.2 The Senate failed by one vote to override the veto.' The Act embodied the congressional response to a series of 1989 United States Supreme Court cases decided by a new conservative majority of Justices. Finding that these decisions drastically limit civil rights protections, Congress accordingly introduced the Civil Rights Act of 1990 to restore those protections. Congress then spent almost a year refining the controversial bill to make it palatable to the President and the business community. Despite congressional efforts, the President op- posed several aspects of …

Consideration And The Commercial-Gift Dichotomy, James D. Gordon, Iii

Vanderbilt Law Review

The doctrine of consideration serves several functions. For example, it serves a cautionary function because it helps ensure deliberateness. Often, promises to make gifts are based on emotion, surges of gratitude, or impulses of display.' A donative promisor tends to look primarily to the promisee's interests rather than the promisor's own interests. The commercial-gift dichotomy satisfies the cautionary function better than the doctrine of consideration because it distinguishes between transactions based on self-interest, in which the promisor can be presumed to self-protect, and transactions based on altruism, in which the promisor is thinking more about the donee's interests than his …

Opportunism And Trust In The Negotiation Of Commercial Contracts: Toward A New Cause Of Action, G. Richard Shell

Vanderbilt Law Review

In a complex economy, many business transactions take place sequentially-one party performs in part or in full before the other side executes its side of the bargain. Sequencing has many advantages, but it creates an unfortunate incentive. Having received its benefit from the bargain, the party who is to perform last may be tempted to renege on its obligations. Law and economics scholars often describe the conduct of a reneging party in these situations as "opportunistic." The reneging party, perceiving an opportunity to increase its gain, yields to temptation and refuses to perform. The law of contract helps to diminish …

Constitutional Limitations On State Power To Hold Parents Criminally Liable For The Delinquent Acts Of Their Children, Kathryn J. Parsley

Vanderbilt Law Review

In late 1988 as part of a comprehensive effort to combat violent street gang activity,' the California legislature passed an amendment to section 272 of California's Penal Code, commonly known as the Parental Responsibility Law. Section 272 originally stated only that every person who commits any act or fails to perform any duty that causes or tends to cause a minor to do a prohibited act is guilty of contributing to the delinquency of a minor, a misdemeanor under the California Penal Code, and subject to a maximum fine of twenty-five hundred dollars, one year in jail, or both. When …

Refining The Itemized Deduction For Home Property Tax Payments, J. B. Mccombs

Vanderbilt Law Review

By enacting a $1 million debt limit for deductible home mortgage interest in 1987,' Congress opened the way for a fresh inquiry into the home property tax deduction. Adoption of that debt limit reflects a major change in policy-a re-evaluation of the benefits and costs of subsidies to luxury housing.

At first glance a $1 million limit seems ridiculously high if the debt ceiling reflects a decision to stop subsidizing luxury housing. The debt ceiling, however, does not contain an inflation adjustment provision. Because such provisions are common in the Internal Revenue Code, the absence here must be by conscious …

Municipal Liability Under Section 1983: The Rationale Underlying The Final Authority Doctrine, Steven E. Comer

Vanderbilt Law Review

The Reconstruction Congress passed section 1 of the Civil Rights Act of 1871 (Act), commonly known as the Ku Klux Klan Act,1 to com- bat racial violence in the South where local police officers, in violation of the victims' constitutional rights, often failed to protect blacks from attacks by lynch mobs. Although section 1 protects all citizens regard- less of race, it was designed primarily to (1) prevent states from passing racially discriminatory laws, (2) provide blacks with redress for deprivations of civil rights when state law proved inadequate, and (3) enable victims to sue in federal court when state …

Market Share Liability: A Current Assessment Of A Decade-Old Doctrine, Andrew B. Nace

Vanderbilt Law Review

Ten years ago, in Sindell v. Abbott Laboratories, the California Supreme Court created market share liability as a remedy for plaintiffs who had suffered injuries from prenatal exposure to diethystilbestrol (DES), but were unable to identify the specific manufacturer of the drug. The court fashioned the remedy because the available tort theories at the time-enterprise liability, alternate liability, and concert of action-were inadequate remedies for DES plaintiffs. The court's motivation was compensatory: redress innocent plaintiffs' injuries at the expense of collectively negligent defendants. Because of the victims' inability to show actual causation, the new doctrine sought to approximate a manufacturer's …

Exclusion Of Personal Injury Damages: Have The Courts Gone Too Far?, Susan K. Matlow

Vanderbilt Law Review

The Internal Revenue Code (Code) sweeps into gross income "all income from whatever source derived," including, but not limited to, compensation for services, interest, dividends, rents, and alimony payments.' Specific statutory exclusions may exempt from gross income certain items that Congress has determined deserve favorable tax treatment. One such exclusion, section 104(a)(2), provides that gross income shall not include "the amount of any damages received (whether by suit or agreement and whether as lump-sums or as periodic payments) on account of personal injuries or sickness."' Congress enacted section 104(a)(2)'s predecessor in 1918," and in spite of subsequent revolutionary tax reform, …

Breaking The Silence: Should Jurors Be Allowed To Question Witnesses During Trial?, Jeffrey S. Berkowitz

Vanderbilt Law Review

The above line of questioning destroyed the defendant's chance of being acquitted. Surprisingly, however, the questions that sealed the defendant's fate were raised by a juror after the prosecutor had failed to elicit the devastating facts.'

The notion of allowing jurors to question witnesses during a trial is not a novel one, but the governmental entities responsible for supervising the court system never have encouraged the practice.' As a result, juror questioning is not widespread.' This situation, however, may be changing. During 1989 judges in at least thirty states, including New York, California, and Connecticut, agreed to conduct the first …

The Rhetoric Of Equality, Neal Devins

Vanderbilt Law Review

The affirmative action debate appears intractable. On one side, those employing the "rhetoric of innocence" use contemporaneous findings of actual discrimination as the gauge that defines victim status. This rhetoric proclaims affirmative action plans that define eligibility by group status, rather than by individualized proof of victim status, both harmful to innocent whites and beneficial to undeserving minorities. In sharp contrast, those employing the "rhetoric of guilt"' contend that "unconscious racism' makes it impossible for whites to treat minorities as equals. Under this view, "[b]ecause racial discrimination is part of the cultural structure, each person of color is subject to …

There Goes The Monopoly: The California Proposal To Allow Nonlawyers To Practice Law, Kathleen E. Justice

Vanderbilt Law Review

Lawyers love to compete, but only with each other. The legal profession consistently has fought outside competition and successfully has controlled competition to ensure professional survival. Lawyers control competition through participation in bar associations, legislatures, and courts. For example, state statutes and bar association regulations' forbid the practice of law by nonlawyerss To enforce this prohibition, all states require that state and professional bar associations certify individuals as competent legal practitioners before they can practice law. Courts generally have upheld these statutes and regulations. Thus, lawyers have succeeded in limiting outside competition.

These limitations, however, may be resulting in denial …

The Parsonage Allowance Exclusion: Past, Present, And Future, Matthew W. Foster

Vanderbilt Law Review

Religious freedom has played a pivotal role in the history and cultural development of the United States.' Religion historically has been considered a fundamental aspect of American culture, resulting in the granting of numerous legal rights and privileges to religious personnel and institutions. These grants stem from the protections in the Bill of Rights and include privileges that, though of undoubted importance, are not known widely and may fail to provoke controversy to the same extent as perceived infringements or endorsements of religion.'

Section 107 of the Internal Revenue Code grants one of the lesser- known privileges. This statute permits …

Brewer's Plea: Critical Thoughts On Common Cause, Richard Delgado

Vanderbilt Law Review

As most legal readers know, members of the Critical Race Studies (CRS) school" and mainstream civil rights scholars have been carrying on a rather spectacular and highly public debate. First, Randall Kennedy, a mainstream scholar, took the newcomers to task in his Racial Critiques article, charging us with making unfounded accusations and grandiose claims,' with finding racial exclusion where none exists, and with various other sins of omission and commission. The controversy moved next to the pages of the popular press. Then, in the June 1990 issue of Harvard Law Review, three members of CRS and a white sympathizer were …

Economic Due Process Revisited, James W. Ely, Jr.

Vanderbilt Law Review

In many constitutional histories the presentation of economic issues between 1880 and 1937 resembles a Victorian melodrama. A dastardly Supreme Court is pictured as frustrating noble reformers who sought to impose beneficent regulations on giant business enterprises.' The centerpiece in this tale of wickedness is Lochner v. New York.' Few Supreme Court decisions have been vilified more than Lochner. For years liberal commentators ritualistically denounced the Court's decision. The laissez-faire assumptions behind Lochner naturally were an anathema to scholars and judges favoring government intervention in the economy and redistribution of wealth. Worse yet, this example of judicial activism reflected an …

Rule 11 And Factually Frivolous Claims-- The Goal Of Cost Minimization And The Client's Duty To Investigate, James E. Ward, Iv

Vanderbilt Law Review

This Note examines the duty Rule 11 creates and its allocation between attorneys and their clients from an economic perspective. Part II examines Rule 11's historical purpose of deterring frivolous claims and traces the roots of the duty the Rule imposes on attorneys to achieve this purpose. Part III discusses how Rule 11 ideally should function in a society with perfect information about the cost of frivolous claims to the judicial system compared to the cost of deterring such claims, and determines that an optimal Rule would minimize the sum of these costs. Given the information constraints of the real …

Structuring The Ethics Of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, Fred C. Zacharias

Vanderbilt Law Review

Codes of professional responsibility take a very different approach to civil and criminal trials. In civil litigation, the codes presume that good outcomes result when lawyers represent clients aggressively. In criminal cases, the codes do not rely as fully on competitive lawyering. They treat prosecutors as advocates, but also as "ministers" having an ethical duty to "do justice."

Although the special prosecutorial duty is worded so vaguely that it obviously requires further explanation, the codes provide remarkably little guidance on its meaning. In effect, code drafters have delegated to prosecutors the task of resolving the special ethical issues prosecutors face …

"Autocephalous Greek-Orthodox Church Of Cyprus V. Goldberg & Feldman Fine Arts, Inc".: Entrenchment Of The Due Diligence Requirement In Replevin Actions For Stolen Art, Stephen L. Foutty

Vanderbilt Law Review

Art prices are reaching spectacular heights. Current estimates place annual worldwide retail sales between ten billion and forty billion dollars;' each auction season, bidders smash previous price records. For example, at a May 9, 1989 Sotheby's auction, a buyer paid 47.9 million dollars for Picasso's self-portrait "Yo-Picasso"; Gaugin's "Mata Mau (In Olden Times)" sold for 24.2 million dollars. The next day at Christie's, an investor purchased a Monet for 14.3 million dollars, twice it's estimated value.' The inflated prices have inspired people without a prior interest in art to conceive a sudden passion for collecting by any available means. As …

Words And The Door To The Land Of Change: Law, Language, And Family Violence, Martha Minow

Vanderbilt Law Review

Can words stem violence? More specifically, can anything anyone says halt the physical devastation inflicted daily behind the closed doors of family dwellings? Some people strike, beat, or burn their children. Some people assault their lovers, some their spouses; usually, men batter women.' Can words, uttered by anyone else, stop this violence?

Words of journalists expose family violence to public view. Words of legislatures and judges forbid and punish family abuse. Words of historians, novelists, television scriptwriters, social workers, feminist theorists, and songwriters depict and decry domestic violence against a backdrop of societal silence about it. But are there words …