Law Commons^™

Introductory Remarks And A Comment On Civil Rico's Remedial Provisions, Robert K. Rasmussen

Vanderbilt Law Review

This Symposium comes at a very opportune time. RICO seems to be on everyone's mind. The attention that RICO has garnered in the last few years in the courts, the press, and the legal academy has in-creased steadily, and the cries for change, at least from some quarters,have become deafening. Judge David Sentelle of the D.C. Circuit Courtof Appeals recently labeled RICO "The Monster That Ate Jurisprudence;" Chief Justice William Rehnquist has repeatedly called for a defederalization of RICO; and groups as diverse as the Wall Street Journal, the Washington Post, and the American Civil Liberties Union have argued vociferously …

Current Rico Policies Of The Department Of Justice, Edward S.G. Dennis, Jr.

Vanderbilt Law Review

In H.J. Inc. v. Northwestern Bell Telephone Co. the United States Supreme Court issued its latest opinion interpreting the reach of the Racketeer Influenced and Corrupt Organizations Act (RICO).' The H.J. Inc. decision comes at a time when the RICO statute is at the center of controversy. Those opposed to private treble damages suits particularly attack the statute. The defense bar attacks the use of the statute in white-collar prosecutions, especially in those cases involving securities fraud. If the defense bar has its way in Congress, RICO could not be invoked in cases involving fraud alone. The criminal defense bar …

Reforming Rico: If, Why, And How, Rene Augustine

Vanderbilt Law Review

With its increased use both by prosecutors and private plaintiffs,the RICO statute has prompted a host of criticisms. For instance, some critics argue that Congress intended RICO to battle mafia crimes of the Al Capone genre, but that it has been applied in situations far beyond those Congress originally envisioned. Some seek RICO reform because of concerns that the statute may threaten civil liberties and chill free speech. Unhappiness with RICO has led to some uncommon alliances between diverse groups who wish to reform or repeal the statute. In fact, RICO itself has been applied to a wide variety of …

The Computer Fraud And Abuse Act Of 1986: A Measured Response To A Growing Problem, Dodd S. Griffith

Vanderbilt Law Review

Before the invention of the computer, the amount of property an individual could steal or destroy was, to some extent, determined by physical limitations. Criminals could take only as much property as they could carry or arrange to transport. For example, the average amount of money taken in a bank robbery has been estimated to be about ten thousand dollars. Crime has, however, changed with the times. A criminal can use modern technology to transfer extremely large sums of money that formerly would have been impossible to remove without detection. A 1984 study conducted by the American Bar Association Task …

Rights And Remedy, Barry Friedman

Vanderbilt Law Review

I came to Alabama in 1982, to interview for a position as a visiting professor at the University of Alabama School of Law. A large group of the faculty took me to lunch that day. I did not understand until much later that the conversation at lunch was an important part of the interview. The group moved from one topic of discussion to another, until we lighted on an area of the law in which I was willing to take and defend a position. That topic proved to be federal habeas corpus jurisdiction, and it only made sense that the …

Innocence And Affirmative Action, Thomas Ross

Vanderbilt Law Review

When we create arguments, when we act as rhetoricians, we reveal ourselves by the words and ideas we choose to employ. Verbal structures that are used widely and persistently are especially worth examination. Arguments made with repeated, almost formulaic, sets of words suggest a second argument flowing beneath the apparent argument. Beneath the apparently abstract language and the syllogistic form of these arguments, we may discover the deeper currents that explain, at least in part, why we seem so attached to these verbal structures.

Argument about affirmative action in the context of racial discrimination is particularly wrenching and divisive, especially …

The Ripple Effects Of Slaughter-House: A Critique Of A Negative Rights View Of The Constitution, Michael J. Gerhardt

Vanderbilt Law Review

Upon seeing Niagara Falls for the first time, Oscar Wilde reportedly remarked that it "would be more impressive if it flowed the other way." I have a similar reaction to a series of narrow Supreme Court interpretations of the fourteenth amendment, beginning with the Slaughter-House Cases, decided in 1872, and extending to the 1989 decisions in Webster v. Reproductive Health Services and DeShaney v. Winnebago County Department of Social Services. In Slaughter-House the Court interpreted the privileges or immunities clause of the fourteenth amendment as merely protecting interests other federal laws already protected, while recently the Court interpreted the due …

Life-Without-Parole: An Alternative To Death Or Not Much Of A Life At All?, Julian H. Wright, Jr.

Vanderbilt Law Review

This Note will discuss the relatively recent development and current prevalence of one alternative: the life sentence without benefit of parole, commonly called life-without-parole (LWOP). Life-without-parole is the penultimate penalty, meaning in theory the incarceration of convicts for their natural lives without the possibility of release on parole. In practice, LWOP generally means what it says, although various states do retain some release mechanisms for LWOP inmates, like executive commutation or a set term of years. The idea of jailing individuals for the rest of their lives is at least as old in the Western legal tradition as the Tower …

The Constitutionality Of An Off-Dutysmoking Ban For Public Employees:Should The State Butt Out?, Elizabeth B. Thompson

Vanderbilt Law Review

During the past several years, restrictions imposed by states, cities,and municipalities on smoking in public areas have survived court challenges and become almost commonplace.' Likewise, both public and private employers have limited smoking in the workplace. A further restriction that seems to be emerging, however, is a refusal by both the state and a growing number of private employers to hire or to continue to employ smokers. These restrictions limit the employee's freedom to smoke not only in the workplace, but also after working hours and within the privacy of the worker's home.

This Note will address the constitutionality of …

The Innocent Spouse Problem: Joint And Several Liability For Income Taxes Should Be Repealed, Richard C.E. Beck

Vanderbilt Law Review

Husbands and wives who elect to file joint federal income tax returns are jointly and severally liable for the entire tax due. Ninety-nine percent of married couples who file income tax returns make the election to file jointly, and each spouse thereby incurs personal liability for the other spouse's income taxes.' This Article argues that the rule is unfair and unjustified and should be repealed.

Part II of the Article describes the nature and scope of the problems caused by joint and several liability of spouses filing joint re-turns (hereinafter "joint return liability"). When separation or divorce is involved, the …

Meaningful Access For Indigents On Death Row: Giarratano V. Murray And The Right To Counsel In Post-Conviction Proceedings, William H. Brooks

Vanderbilt Law Review

In 1932 the United States Supreme Court held that the states must provide free legal counsel to indigent defendants in capital cases.' Since then the Court has continued to define the scope of an indigent death row defendant's right to counsel at various critical stages of the defendant's trial and appeal. Following a direct appeal to the state court of appeals and state supreme court, an inmate on death row may seek a writ of certiorari from the United States Supreme Court. A prisoner is not entitled to state appointed counsel for that action.

Next, the defendant may seek post-conviction …

The Proper Scope Of Nonlawyer Representation In State Administrative Proceedings: A State Specific Balancing Approach, Gregory T. Stevens

Vanderbilt Law Review

Administrative adjudication has become an essential aspect of the American system of government as the need for dispute resolution outside the courtroom increases. To foster alternative dispute resolution, the authorization of nonlawyers to appear as representatives in administrative proceedings presents a viable response to increasing litigation costs and a burdened court system. Accordingly, the federal administrative system, through broad enabling statutes, allows individual agencies to prescribe the proper scope of nonlawyer representation of clients during agency proceedings.1 The individual states, however,have not adopted such a uniform approach. The inability of the individual states to establish an adequate regulatory system largely …

Regulating Violent Pornography, Deana Pollard

Vanderbilt Law Review

In recent years the regulation of pornography has received much attention. Traditionally, conservatives have scorned pornography of all types on the basis that pornography is immoral. More recently, some feminists have attacked pornography from a civil rights perspective,claiming that pornography is the sexually explicit subordination of women that leads to discrimination against women in all aspects of life. Nonetheless, the first amendment currently protects all forms of pornography from regulation unless the material is deemed "obscene.

"Researchers, however, have shown that certain types of pornography, such as violent, sexually explicit materials, specifically harm women. The proven relationship between violent pornography …

Substantive Consolidation In Bankruptcy: A Primer, J. Stephen Gilbert

Vanderbilt Law Review

Substantive consolidation is a powerful vehicle in bankruptcy by which the assets and liabilities of one or more entities are combined and treated for bankruptcy purposes as belonging to a single enterprise.Because substantive consolidation vitally affects the rights and interests of parties involved in bankruptcy proceedings, it is termed a matter"pregnant with consequence"' and should be used with caution. Substantive consolidation is not a common occurrence because it exacts strict requirements in order to protect the parties that it affects. Be-cause substantive consolidation lacks clear statutory guidance, however,courts examine the facts of each case closely to ascertain whether consolidation is …

Participation By The Public In The Federal Judicial Selection Process, William G. Ross

Vanderbilt Law Review

The firestorm ignited by the 1987 nomination of Robert H. Bork provided a vivid reminder that public opinion and organized interest groups can have a potent and even decisive impact upon the selection of United States Supreme Court Justices and other federal judges. Al-though the Constitution vests the prerogative of nomination in the President and the power of confirmation in the Senate, the public also is a partner in the selection process in ways that often extend far beyond the citizenry's election of its President and representatives in the Senate.Public opinion has influenced the judicial selection process throughout the history …

Good Intentions, Bad Economics: Retiree Insurance Benefits In Bankruptcy, Dan Keating

Vanderbilt Law Review

One of the emerging corporate problems of the 1980s, retiree insurance benefits, has met face to face with an increasingly common corporate solution, Chapter 11 reorganization. The intersection of these two phenomena first gained national attention with the July 1986 bankruptcy filing of the LTV Steel Corporation. Immediately after seeking bankruptcy court protection, LTV informed its 68,000 retirees that the company temporarily would cease to pay the medical and life insurance benefits that it had promised these former workers when they retired.

Prompted by tragic stories of LTV retirees and their spouses who were forced to postpone critical medical treatment, …

Indeterminacy: The Final Ingredient In An Interest Group Analysis Of Corporate Law, Douglas M. Branson

Vanderbilt Law Review

Legal realists emphasized the contradictory norms of law. Contradictory norms permitted judges to reach conclusions about what basic equities and broadly accepted social interests required in particular cases. Judges then used whatever norm of law suited them to reason in support of their a priori conclusions about what these equities or broad social interests required.

Critical Legal Studies (CLS) has inherited and enhanced the legacy of questioning the value of legal rules. CLS thinkers maintain that law is indeterminate, drawing heavily upon linguists who have explored the indeterminacy of language.' CLS scholars go beyond realists, however,both in positing contradictory norms …

Florida V. Riley: The Emerging Standard For Aerial Surveillance Of The Curtilage, David J. Stewart

Vanderbilt Law Review

The expression, "a man's home is his castle," embodies one of the most cherished individual liberties in American society, the right to en-joy privacy and freedom from unreasonable government intrusion in the confines of one's home.' Recognizing the importance of this right, the first Senate adopted the fourth amendment, which protects individuals from unreasonable searches and seizures.

Initially, the United States Supreme Court narrowly construed the fourth amendment as protecting only physical intrusions of persons,houses, papers, and effects.4 Later, the Court expanded coverage of the fourth amendment to include the area immediately adjacent to the home and used in connection …

Walking In Their Shoes: Paying Respect To Incompetent Patients, D. Don Welch

Vanderbilt Law Review

One of the great games that judges play is to act as if their decisions are based on objective standards. For understandable reasons,judges prefer that their decrees be seen as resting on accepted principles of law rather than on a judicial choice between two competing,plausible opinions. One such accepted principle has been that decisions giving consent for medical treatment of incompetent patients should be made to serve the "best interests" of the patients.' In recent years,courts increasingly have used a new, seemingly less objective standard called "substituted judgment" to replace the best interests standard in certain situations. Under this new …

Tibet To Tienanmen: Chinese Human Rights And United States Foreign Policy, W. Gary Vause

Vanderbilt Law Review

The roof of the world, land of the snows, alleged home of the Abominable Snowman, and place for the timeless meeting of mountain and sky--these are the Western visions of Tibet.' Most Americans know little else about this strange and exotic land shrouded in historical obscurity. Modern Tibet is a curious stockpot of native Tibetans and immigrant Chinese, which until recently was seasoned with increasing numbers of Western tourists, backpackers of all ages, vagabonds,and visitors from neighboring Nepal.'On June 4, 1989, China's 27th Army brutally crushed democracy demonstrations that had extended for seven weeks in Beijing and other Chinese cities. …

Asbestos In Schools: The Asbestos Hazard Emergency Response Act And School Asbestos Litigation, James C. Stanley

Vanderbilt Law Review

Over a decade has passed since the Environmental Protection Agency (EPA) first identified asbestos as a health threat to the nation's school children in 1978. The concern over asbestos in schools prompted numerous responses to this problem, including legislative solutions, litigation, and the birth of a new industry to inspect, control, and abate the hazard. The results have been mixed at best. School officials, legislators, and legal commentators have criticized much of the legislation as ineffective; the litigation has added cases to a legal docket already overburdened by personal injury suits brought by individuals against asbestos manufacturers and liability insurance …

The Protection Of Groundwater And Public Drinking Supplies: Recent Trends In Litigation And Legislation, Pamela King

Vanderbilt Law Review

Although groundwater is one of our most vital natural resources, it is perhaps the least protected. Over half of the total United States population-nearly 117 million people-depends on groundwater reservoirs, or aquifers, as its source of drinking water. Industry looks to groundwater for twenty-six percent of its water needs, and two-thirds of all groundwater is used in agriculture. In addition, groundwater reenters oceans, lakes, and rivers to supply nearly one-third of the flow of surface water in the United States.

Presently, underground water sources are contaminated in all fifty states. This pollution is the by-product of a vast array of …

The Eeoc Is Meeting The Challenge: Response To David Rose R., R. Gaull Silberman

Vanderbilt Law Review

In his recent article, Twenty-Five Years Later: Where Do We Stand On Equal Employment Opportunity Law Enforcement?, David Rose declares, "The time is ripe for review." Mr. Rose argues that "effective enforcement of the equal employment opportunity law in the next decade is a necessary, if not sufficient, predicate for the social and economic well being of the Nation."' From my perspective as Vice Chairman of the Equal Employment Opportunity Commission (EEOC or Commission), I heartily agree with both points. I must take issue,however, with Mr. Rose's assessment of developments in federal equal employment opportunity law over the last twenty-five …

1988 Amendment To 26 U.S.C. Section 7430: Expanding Taxpayers' Rights To Recover Costs In Tax Controversies, Debra A. Chini

Vanderbilt Law Review

Bureaucratic mistakes at the Internal Revenue Service (IRS) forced Barbara and David Kaufman to seek a court-ordered injunction prohibiting the IRS from collecting a 14,380 dollar tax assessment for 1980. Even though the Kaufmans had notified the IRS office in Chicago of their new Maine address, the IRS mistakenly mailed the preliminary notice of deficiency to the Kaufmans' prior Illinois address. In addition, the Service mailed the statutory notice of deficiency to another couple also named Barbara and David Kaufman.' Because the Kaufmans never received notice of the proposed deficiency, they did not have an opportunity to contest the tax …

Rethinking Antitrust Injury, Roger D. Blair, Jeffrey L. Harrison

Vanderbilt Law Review

Substantive changes in antitrust law since 1977 have had a dramatic impact on the vitality of antitrust enforcement.' Recent "procedural" changes now seem likely to have as great an influence. In the procedural area, the emphasis has been on antitrust standing and anti-trust injury. As a result of recent judicial interpretations of these requirements, antitrust plaintiffs face increasingly formidable hurdles. As courts focus on questions of standing and injury, important discussions about whether a practice should be held to a per se or rule of reason standards frequently are immaterial. If there is no qualified plaintiff,the substantive issue need never …

Book Review: Icons And Aliens, Richard F. Babcock

Vanderbilt Law Review

I believe it was Goethe who observed that "daring ideas are like chessmen moved forward. They may be beaten, but they may start a winning game." This book may beat John Costonis, but I will wager he has started a winning game.I say this because in spite of his wit and the cartoons, he is going to make some Very Important People mad-if they will read this book. I would like to see the faces of, say, Kent Barwick, President of the Municipal Art Society of New York City, and Brendan Gill of The New Yorker when they read the …

The Distribution Right In The United States Of America: Review And Reflections, John M. Kernochan

Vanderbilt Law Review

This Essay on the distribution right considers the possibility and the merits of three options now widely discussed. These are: (a) ex-tending the reach of an old right, the right of reproduction, to include the currently debated "droit de destination," or (b) broadening the right of distribution in nations that have such a right by cutting back on the"first sale doctrine"' and other limitations on that right, and (c) giving authors broad control over use of their work. All of these approaches aim to make authors' rights more substantial and effective to achieve their purpose amid the erosions resulting from …

Title Vii Remedies: Reinstatement And The Innocent Incumbent Employee, Larry M. Parsons

Vanderbilt Law Review

Congress enacted Title VII of the Civil Rights Act of 19641 twenty-five years ago. Through Title VII Congress sought to remove artificial barriers that limited employment opportunities for minorities. The statute is not limited, however, to prohibiting race discrimination. Title VII directly confronts the problem of discrimination in the workplace by prohibiting employment decisions based on the race, color, religion, sex, or national origin of the employee or applicant. The Act prohibits an employer from favoring one group of employees over another due to irrelevant characteristics and classifications.

Title VII litigation occupies a significant portion of the federal docket. The …

A Fault-Based Administrative Alternative For Resolving Medical Malpractice Claims, Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., Martin S. Hatlie

Vanderbilt Law Review

The recurring crises in medical malpractice litigation have been widely discussed and documented over the past two decades.' In response to these crises, a growing consensus has emerged among legislatures, government agencies, and scholars in favor of tort reform. Indeed, virtually every state has passed some tort reform legislation.'Despite the reforms, several serious problems persist in medical malpractice. The current tort system does not compensate injured patients adequately or equitably, nor does it deter negligent practices sufficiently. These failings occur despite the increasingly high costs to society of the tort system. Particularly troublesome is the impact of these crises on …

Challenging The Death Penalty Under State Constitutions, James R. Acker, Elizabeth R. Walsh

Vanderbilt Law Review

Death penalty litigation that reaches the Supreme Court now causes at least as much consternation as hope among opponents of capital punishment. Simply not losing rights that once were considered secure can be tantamount to victory in capital cases decided by the Court,and few defendants and opponents of capital punishment expect much more. It was not always so. Hopes were once high that the Supreme Court, and the federal courts generally, would effectively bring an end to capital punishment in America.

That prospect is now remote, at best. Death row populations are sky rocketing and executions are on the rise. …