Law Commons^™

The Confrontation Clause Applied To Minor Victims Of Sexual Abuse, Eleanor L. Owen

Vanderbilt Law Review

Dramatic increases in reports of child abuse and an even more alarming rise in reports of sexual abuse of children have contributed to growing media attention and public awareness of these problems. Concern for effective prosecution of the abusers, as well as for protection of the minor victims from further psychological trauma, has prompted a growing number of states to develop statutory measures that provide special protection from trauma for children during testimony at trial.The minor victim reportedly has the most difficulty facing his or her family and the defendant during testimony. Creative solutions' to this problem have been developed …

Misery Loves Company: Spreading The Costs Of Cercla Cleanup, Anne D. Weber

Vanderbilt Law Review

The typical case arising under the Comprehensive Environmental Response, Compensation, and Liability Act' (CERCLA) involves hazardous waste generation and disposal spanning several decades by companies no longer in existence. Subsequent attempts at cleanup by federal and state governments and private parties, as well as legal battles over the ultimate responsibility, are also at issue in the typical CERCLA case. A single party is rarely responsible for the toxic waste pollution of a site. Usually, a toxic waste site, such as a landfill, will have numerous potentially responsible parties (PRPs): generators;transporters; current owners and their lessees; former owners and operators and …

Twenty-Five Years Later: Where Do We Stand On Equal Employment Opportunity Law Enforcement?, David L. Rose

Vanderbilt Law Review

As we near the twenty-fifth anniversary of the passage of the Civil Rights Act of 1964, an assessment of equal employment opportunity law is both natural and appropriate. Prior to 1964, the federal government had imposed equal employment opportunity obligations on itself as well as its contractors and subcontractors. And Title VII of the Act,which mandated such obligations, did not become effective until July 2,1965. Yet the Civil Rights Act of 1964, which was the first comprehensive legislation to address the problems of discrimination in American society, became the cornerstone of modern civil rights law, including equal employment opportunity law.The …

Gender Discrimination And The Transformation Of Workplace Norms, Kathryn Abrams

Vanderbilt Law Review

Lately when I talk about gender, I am often confronted with the message that women's equality has already been achieved. A colleague may provide this insight, or a complete stranger waiting in a grocery line. But the thought was most succinctly expressed by a student who grew impatient with my activism. "I don't understand," she declared."Women have gotten just about everything they wanted. Don't they see that the time for militancy is over?" Perhaps this response should come as no surprise. The battle for the Equal Rights Amendment has been lost, but in salient ways our society seems to have …

The Quiet Revolution In Minority Voting Rights, Laughlin Mcdonald

Vanderbilt Law Review

The modern voting rights movement began with passage of the Voting Rights Act of 19651 and was essentially black and southern. To-day that movement, propelled by a series of congressional amendments to the Act, favorable court decisions, and the concerted efforts of minority and civil rights communities, is multiracial and national in character. It is also having an increasingly profound impact on American politics.

Although the 1965 Act had provisions that applied nationwide,Congress intentionally targeted seven states of the old Confederacy-Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and portions of North Carolina-for the application of unique and stringent measures described …

The Reagan Administration's Civil Rights Policy: The Challenge For The Future, William B. Reynolds

Vanderbilt Law Review

The almost twenty years that followed Brown showed real progress toward a color-blind society. That progress, however, lost momentum in the 1970s as many civil rights leaders advanced well-intended, but poorly conceived, policies with the all-too-familiar consequence of dividing people along color lines. In that decade, the bright future of race relations began to dim as discriminatory techniques--mislabelled as"benign" or "affirmative"-reemerged to work their destruction on the hopes of a public anxious to find harmonious, goodwilled solutions to the problems of the past.Today, the struggle continues for a national heritage blind to skin color or ethnic background. The challenge for …

The Fair Housing Amendments Act Of 1988: The Second Generation Of Fair Housing, James A. Kushner

Vanderbilt Law Review

A generation has passed since the legislative victories of the 1960s extending civil rights protection: twenty-five years since the passage of the historic Civil Rights Act of 1964,1 twenty-four years since the passage of the Voting Rights Act, and twenty-one years since the passage of the Fair Housing Act of 1968. As we enter the second generation of civil rights enforcement under new Presidential leadership it is important to assess the state of civil rights, to examine the experience of first generation enforcement and the promises of the second generation.

The state of civil rights in the area of housing …

The State Of The Union: Civil Rights, Paul G. Wolfteich

Vanderbilt Law Review

"The times," wrote Bob Dylan in 1963, "they are a-changin'." One hundred years after formal emancipation, blacks in 1963 were beginning to see the end of laws that prevented their full participation in American society. The United States Supreme Court had struck down the separate but equal doctrine, Congress had passed the first civil rights legislation in seventy-five years, and the executive branch was enforcing the law. Anthony Lewis wrote in the mid-1960s that "[n]o one could doubt that the conscience of America has been seized by the injustice of unequal treatment because of a man's skin." A women's liberation …

The Courts' Response To The Reagan Civil Rights Agenda, Drew S. Days, Iii

Vanderbilt Law Review

The Reagan Administration came to Washington, D.C. committed to reintroducing traditional theories of civil rights enforcement. The thesis of this Essay is that the Administration's efforts concerning the enforcement of civil rights were not successful. Of course, only time will tell whether civil rights jurisprudence will be altered because of forces set in motion by the Administration and changes in the makeup of the judiciary.Using the United States v. Carotene Products Co.' decision as the point of departure for a consideration of twentieth-century civil rights doctrine, it is apparent that the original goal of the Supreme Court's civil rights policy …

Race And Economic Opportunity, Robert L. Woodson

Vanderbilt Law Review

The true character of a nation can be judged in part by the way it treats its weakest or most vulnerable members. In the past decades, no-where has this test been more evident than in the quest for civil rights by black Americans. Civil rights has also become the leading indicator of the moral health of the Nation.

With the passage of civil rights laws, one-third of black Americans-those prepared by family status, education, or economic circumstance-walked through the doors of opportunity once they were opened. For unprepared blacks, removing racial barriers did not enable them to join the mainstream …

Lender Liability: A Survey Of Common-Law Theories, Frances E. Freund

Vanderbilt Law Review

Lender liability litigation has increased dramatically over the past several years. The increase in claims is hardly surprising when one considers recent multimillion dollar recoveries.' Such well-publicized verdicts against lenders serve to encourage borrowers to defend even routine collection claims by striking out at the lender.

Most often borrowers bring lender liability suits following commercial loan defaults. These suits are based on a number of common-law theories for liability including: breach of contract, breach of fiduciary duty,' and breach of good faith, as well as fraud, duress, interference, and negligence. Some suits also raise statutory claims under the bankruptcy laws, …

The Status Of The Law Of Nations In Early American Law, Stewart Jay

Vanderbilt Law Review

A perennial issue is the relationship of international law to the domestic law of the United States. The question appears in various con-texts, but in each the central problem is determining whether the body of customary international law is binding on the national and state governments. Discussions about this subject inevitably lead to consideration of separation of powers at the national level. If the United States may depart from international law, which branch of government has the power to do so? If one branch transgresses international law, is this action binding on the others?' For example, a recent case examined …

Special Project: Lender Liability, Journal Staff

Vanderbilt Law Review

In recent years banks and other commercial lending institutions have faced a rapid increase in problem loans.' At the same time, the relatively new phenomenon in United States law known as "lender liability" has signaled an expansion of the legal theories under which courts may find lenders liable for damages incurred by borrowers. Perhaps most significantly, many courts now allow borrowers to recover against lenders based on various tort theories. Because of the broader remedies afforded under tort theories as compared to those remedies previously available in contract, some lenders recently have experienced large adverse verdicts. If courts continue to …

Computer Programs As Applied Scientific Know-How: Implications Of Copyright Protection For Commercialized University Research, J. H. Reichman

Vanderbilt Law Review

This Article surveys the problems that university administrators face when seeking to exploit proprietary rights in new technologies,with particular regard to computer software. In so doing, it explores larger questions about the proper role of intellectual property laws in protecting applied scientific know-how and the proper role of universities in exploiting the opportunities that such laws increasingly make available.

Cocaine, Demand, And Addiction: A Study Of The Possible Convergence Of Rational Theory And National Policy, A. Morgan Cloud, Iii

Vanderbilt Law Review

As the "war against drugs" meanders through the century,' policy-makers continue to search for effective strategies for combating the illegal drug industry. For seventy-five years the dominant federal strategy has been to curtail supplies of prohibited substances.' In its many permutations, this supply-side approach has included attempts to eradicate crops, to intercept drugs at the Nation's borders, and to arrest, prosecute, and punish commercial participants at every level of the production and distribution system.

By any rational measure, the supply-side "war against drugs" has failed. Only ten to fifteen percent of the illicit drugs entering the country are intercepted and …

Lender Liability And Arbitration: Preserving The Fabric Of Relationship, Frances E. Freund, Susan D. Gresham, Robert D. Rowe, N. Sue Van Sant Palmer

Vanderbilt Law Review

This Note examines the problem of explosive liability for lenders in lender borrower disputes and considers whether arbitration could be helpful to lenders and borrowers in resolving their disputes. Part II examines the evolution of the Federal Arbitration Act in the Supreme Court cases which have considered the statute's ground of authority and its jurisdictional reach. Part II then focuses on the expanding role of arbitration in substantive areas formerly considered to be nonarbitrable. Part III describes the nature of arbitration and particularly focuses on medical malpractice arbitration for some evidence as to how the process has worked in another …

Judicial Activism And Restraint In The Supreme Court's Environmental Law Decisions, Richard E. Levy, Robert L. Glicksman

Vanderbilt Law Review

The proper role of the courts in our system of government has long been the source of considerable controversy. Proponents of "judicial activism" argue that because only the courts are insulated from political pressures, courts should exercise the judicial power broadly in the constitutional context to ensure that legislation is consistent with constitutional norms. Likewise, the argument continues, judicial activism is necessary in the regulatory context to ensure that administrative agencies implement statutory objectives. In contrast, proponents of"judicial restraint" argue that the legislative and executive branches alone should make public policy because only these branches are responsive to the electorate. …

Defining The Contours Of Erisa Preemption Of State Insurance Regulation: Making Employee Benefit Plan Regulation An Exclusively Federal Concern, Lawrence A. Vranka, Jr.

Vanderbilt Law Review

Congress enacted the Employee Retirement Income Security Act (ERISA) in 19741 to address problems in the area of employee pensions and benefits, with which prior federal enactments and complementary state regulation had been unable to cope. ERISA established a comprehensive scheme that placed the regulation of qualified employee benefit plans exclusively in federal hands.' The drafters of ERISA also sought to reserve to the states the power to regulate areas in which they traditionally had primacy--most notably, insurance, banking, and securities. The drafters of ERISA thus attempted to carve out an area of "exclusive federal concern," while preserving state regulation …

Strict Liability For Defective Ideas In Publications, Andrew T. Bayman

Vanderbilt Law Review

In 1963 the Supreme Court of California revolutionized the law of torts by adopting the theory of strict liability in products liability cases.' The American Law Institute subsequently promulgated section 402A of the Restatement (Second) of Torts in 1965. Section 402A provides that the seller of a "product in a defective condition unreasonably dangerous" may be held liable even though he has "exercised all possible care."' Today, nearly every state has adopted some form of section 402A.' Moreover, the list of modern products to which section 402A applies is virtually limitless. Yet, despite the unprecedented expansion of strict liability into …

Stock In A Closely Held Corporation:Is It A Security For Uniform Commercial Code Purposes?, Tracy A. Powell

Vanderbilt Law Review

The term security has many applications. No application, however,is more important than when an interest owned or traded is determined to be within the legal definition of security. Security is defined by statutes and applied by many courts for the purposes of federal securities laws and for state blue sky laws. When interpreting the term security for federal securities laws, courts have emphasized the underlying congressional purpose of protecting investors. State courts also have interpreted the term liberally in an effort to protect the public under blue sky laws.'

The definition of security in the Uniform Commercial Code(U.C.C.), however, has …

Natural Resource Damage Valuation, Frank B. Cross

Vanderbilt Law Review

How much is beauty worth in dollars? Some people may recoil at the very phrasing of this question. Yet placing a monetary value on natural resources is not inherently destructive. Custom places a monetary value on artwork. Capitalism even values beautiful natural vistas in the form of land prices. Placing a monetary value on beauty and other features of nature may be essential if one is to protect natural resources fully.

This Article explores the proper monetary valuation under Superfund and other legislation of natural objects,' including living animals, aesthetic views, and water purity. The path to achieving valuation is …

Evening The Odds In Civil Litigation:A Proposed Methodology For Using Adverse Inferences When Nonparty Witnesses Invoke The Fifth Amendment, Charles H. Rabon, Jr.

Vanderbilt Law Review

A nonparty witness who responds to questioning by invoking the privilege against self-incrimination seriously can impair the party against whom the response suggests an unfavorable answer. The possible injury to a party's case is greatest when the invocation occurs unexpectedly at trial, but may cause equal damage when the privilege is relied on during discovery because the deposition of an unavailable witness may be read to the jury. In the past, courts and commentators generally opposed allowing such invocations in the jury's presence based on the belief that invocations lack credible evidentiary value because witnesses can invoke validly for a …

Law School Examinations, Philip C. Kissam

Vanderbilt Law Review

This Essay explores the values, limits, and adverse effects of our system of law school examinations. Law school examinations encourage or require students to acquire certain knowledge while measuring a kind of knowledge as well. Importantly, this process occurs within a context of political relationships between law schools, law firms, the legal profession, and the state, as well as between law school administrators, faculty, and students. This system of "power/knowledge"relationships constitutes the law school's basic mechanism of self-regulation or, more generally, a mechanism of social control over legal education. In this era of substantial uncertainty about purposes and methods in …

Written Agreements In The Lender-Borrower Context: The Illusion Of Certainty, Robert D. Rowe

Vanderbilt Law Review

Recent legal battles in the lender-borrower arena have received widespread attention. The fact that these battles occur merits little surprise because borrowers often seek recourse against lenders when financial commitments go awry. Moreover, recent lender-borrower cases do not introduce any new legal theories. The outcome is the noteworthy feature of these cases. Borrowers increasingly are obtaining judgments against lenders. This Note examines recent lender-borrower cases from a contractual perspective, analyzing the application of traditional contract principles in the lender-borrower context. Part II of this Note contends that courts are trying to address three concerns in the lender-borrower context: maintenance of …

"Bad Faith Breach": A New And Growing Concern For Financial Institutions, Susan D. Gresham

Vanderbilt Law Review

A majority of courts have determined that all contracts impose on the parties to the contract an implied covenant of good faith and fair dealing in their actions with each other. This implied covenant prohibits a contracting party from injuring another party's right to receive the benefits of the agreement. Breach of this implied covenant usually creates a cause of action based on contract rights. Moreover, California courts maintain that breach of the implied covenant of good faith and fair dealing creates a tort action as well. The California courts initially limited these tort actions to claims against insurance companies. …

Damages For Emotional Distress In Fraud Litigation: Dignitary Torts In A Commercial Society, Andrew L. Merritt

Vanderbilt Law Review

One of the most dynamic developments in modern tort law has been the increased focus on damages for emotional distress. During the past few decades courts have fashioned several new tort theories to allow recovery of emotional distress damages as independent causes of action. At the same time, lobbyists and legislators have attacked these damages for contributing to "runaway" jury verdicts. As a result of these attacks, a growing number of states are enacting statutes that limit recovery of emotional distress damages in traditional tort are as such as medical malpractice. Thus, damages for emotional distress are at a crossroads …

Contracts As Commodities: The Influence Of Secondary Purchasers On The Form Of Contracts, Henry T. Greely

Vanderbilt Law Review

In 1970 Professor Arthur Leff brought a new vision to a half century of debate about standard form contracts' by pointing out that consumer contracts should be seen not primarily as "contracts," but as"things," intangible products, sold to the consumer. As "things," Leff argued, form contracts should be subject to the same kinds of warranty laws as tangible goods. The debate about form contracts in consumer transactions continues, but, as Leff predicted, the debate largely has ignored his insight concerning the nature of the pieces of paper involved.

United States V. Johnson: Expansion Of The Feres Doctrine To Include Servicemembers' Ftca Suits Against Civilian Government Employees, Anne R. Riley

Vanderbilt Law Review

The United States Government traditionally has enjoyed sovereign immunity from tort liability. In 1946, however, Congress waived this immunity by enacting the Federal Tort Claims Act (FTCA). The FTCA gives federal district courts original jurisdiction over any claims for personal injury or death caused by the negligence of any governmental employee." This broad waiver of immunity, however, is subject to certain exceptions. Although Congress made no explicit exception for noncombat claims of service members, the Supreme Court of the United States in Feres v. United States' construed the FTCA as creating an exception that bars all claims for injuries to …

Redefining Race In Saint Francis College V. Al-Khazraji And Shaare Tefila Congregation V. Cobb: Using Dictionaries Instead Of The Thirteenth Amendment, Jennifer G. Redmond

Vanderbilt Law Review

In 1987 the Supreme Court unanimously extended the protections of 42 U.S.C. sections 19811 and 19822 to ethnic groups, citing "Runyon v. McCrary. Runyon reinterpreted the legislative history of section 1981 to create a cause of action for blacks against both public and private discrimination in the making and enforcement of contracts. One year later a sharply divided Supreme Court ordered the parties in Patterson v. McLean Credit Union, a case in which the Court already had heard argument, to brief the Court anew and make arguments on an issue that none of the parties had raised--whether to overrule Runyonv. …

Lawyers As Officers Of The Court, Eugene R. Gaetke

Vanderbilt Law Review

In its public assertions, the legal profession promotes a different model: lawyers are officers of the court in the conduct of their professional, and even their personal," affairs. The organized bar has expressly emphasized this obligation in each of its major codifications of the ethical obligations of the profession, including the American Bar Association's most recent effort, the 1983 Model Rules of Professional Conduct.

Lawyers like to refer to themselves as officers of the court. Careful analysis of the role of the lawyer within the adversarial legal system reveals the characterization to be vacuous and unduly self-laudatory. It confuses lawyers …