Law Commons^™

The Implications Of Prison Privatization On The Conduct Of Prisoner Litigation Under 42 U.S.C. Section 1983, Susan L. Kay

Vanderbilt Law Review

Prisoners often seek redress in federal courts through causes of action brought under 42 U.S.C. Section 19831 for violations of their constitutional rights caused by the overall condition of their confinement or by one specific condition or incident. Although commentators disagree over the extent to which these cases burden federal district courts, they agree that prisoner litigation constitutes a large percentage of the civil rights litigation in district courts. One of the attractions of prison privatization for state and local governments is the belief that contracting prison management to private firms will relieve the government of the burden of defending …

The Independent Agency After Bowsher V. Synar--Alive And Kicking, William H. Hardie, Iii

Vanderbilt Law Review

Because the modern administrative agency combines executive, legislative, and judicial powers, various authorities throughout history have argued that the fundamental structure of the administrative system is unconstitutional. Recently, the relationship between the separation of powers doctrine and the administrative state has returned to the foreground of both American politics and constitutional law. Attempts by the current executive branch to rein in the policy and rule making activities of "independent" federal agencies have resulted in both praise and cries of foul from the legal community and Congress.' These attempts at executive branch control have been precipitated by a perceived shift in …

The Privatization Of Correctional Institutions: The Tennessee Experience, W.J. Michael Cody Attorney General And Reporter, Andy D. Bennett -- Deputy Attorney General For Legislative Affairs

Vanderbilt Law Review

Recently, the privatization of correctional institutions has been a topic of intense interest both in Tennessee and other parts of the Nation. In the hope that we might learn from the past, we undertook to examine Tennessee's convict leasing practices of the nineteenth century. This Article summarizes that research and provides a narrative and analysis of the recent events regarding privatization of correctional institutions in Tennessee.

Privatization And Prisons, E. S. Savas

Vanderbilt Law Review

"Privatization" means increased governmental reliance on the private sector, rather than on government agencies, to satisfy the needs of society. Since the word was first used in 1969,' privatization has gained broad recognition and widespread acceptance, and,in recent years, a major trend toward privatization has developed in the United States and abroad. The reasons for this trend are both pragmatic and ideological. Pragmatists advocate privatization because it offers a more efficient way to provide goods and services. Ideological opponents of big government support privatization be-cause it reduces the role of government. Privatization is therefore an important movement in East and …

Privatization Of Corrections: Defining The Issues, Ira P. Robbins

Vanderbilt Law Review

Even as the public is demanding that more criminals be incarcerated and that their sentences be lengthened, the problems of America's prisons and jails continue to plague, if not overwhelm,us. More than two-thirds of the states are currently under court order to correct conditions that violate the United States Constitution's prohibition against cruel and unusual punishment. There are many important questions, but there are still no clear, satisfactory answers.

The last few years have thus witnessed diverse, controversial developments. Some, like the voluntary accreditation of correctional facilities by the Commission on Accreditation for Corrections, have begun to take root. Others, …

Liability Of State Officials And Prison Corporations For Excessive Use Of Force Against Inmates Of Private Prisons, Donna S. Spurlock

Vanderbilt Law Review

Privatization of correctional institutions has emerged in response to the growing problem of prison overcrowding and the increasing cost of providing correctional services. Although it offers solutions to pressing social and financial problems, privatization raises two significant legal questions. First, how much force may a prison guard, hired by a private corrections corporation, use against a prisoner; and second, who will be liable when that guard uses excessive force?

This Note analyzes the issues surrounding the liability of both state and private corrections corporations for the excessive use of force by private prison guards. Part II examines the imposition of …

Tennessee's Private Prison Act Of 1986: An Historical Perspective With Special Attention To California's Experience, Ward M. Mcafee

Vanderbilt Law Review

In 1918 James H. Wilkins proudly proclaimed that crime was on the wane. Speaking at the end of a long career in California's state prison system, Wilkins had seen the presumed eradication of the opium habit among State prisoners, the reduction and sup-posed elimination of corporal punishment in the State's prisons,and the introduction of the parole system. He wrote:

"All this tends to material betterment in the present condition and future out-look of prison populations .... It is a long cry before our prisons, jails and other like institutes of detention will bear upon their rusty gates the legend" closed …

The Corporate Governance Debate And The Ali Proposals: Reform Or Restatement?, Kathryn N. Fine

Vanderbilt Law Review

Much of the debate concerning corporate governance centers on the American Law Institute's proposed Principles of Corporate Governance [hereinafter ALI Proposals or ALI Principles].' The "restate" the law of corporate governance without departing from the primary goal stated in the ALI's charter: "to promote the clarification and simplification of the law and its better adaptation to social needs."' The ALI Proposals, however, have evolved into a"new art form"' and, unlike a restatement, have proposed reforms in addition to codifying the common law. Because of the predominance of statutory corporation law, the ALI Proposals have focused selectively on those areas that …

An Historical Perspective On The Duty Of Care, The Duty Of Loyalty, And The Business Judgment Rule, Marcia M. Mcmurray

Vanderbilt Law Review

For more than two hundred years courts have attempted to define the status and character of corporate directors and officers in an effort to establish and delineate their responsibilities and liabilities. In Charitable Corp. v. Sutton,' an eighteenth century English case, the Lord Chancellor described corporate directors as both agents and trustees. This mixed characterization was adopted and subsequently persisted in later American cases until courts finally determined that directors and officers are fiduciaries"who have a "distinct legal relationship" with the corporation. As fiduciaries, directors and officers must conform to the duty of care'and the duty of loyalty, duties that …

Burying (With Kindness) The Felicific Calculus Of Civil Procedure, Linda S. Mullenix

Vanderbilt Law Review

On January 2, 1986, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit announced to an astonished legal profession, not to mention the unsuspecting attorneys-of-record, that, in the future, the Seventh Circuit would decide whether to grant or deny a preliminary injunction by applying the following simple formula:

P x Hp > (1-P) x Hd

With one fell swoop of his algebraic-judicial pen, Judge Posner not only stirred the deepest math anxieties of the practicing bar, but revolutionized preliminary injunction law. Despite Judge Posner's protestations that his simple formula was not "offered as a new legal …

The Duty Of Care And The Duty Of Loyalty In The Revised Model Business Corporation Act, Thomas A. D'Ambrosio

Vanderbilt Law Review

In 1950 the Committee on Corporate Laws of the Section of Corporation, Banking and Business Law of the American Bar Association (the Committee) adopted the Model Business Corporation Act (Model Act or MBCA). The Committee drafted the Model Act in order to provide a dynamic model for keeping state corporation laws updated and responsive to the current demands of the business and legal communities.' Because of this goal, the Model Act was in a constant state of revision. This constant state of revision provided an impetus for the Committee to adopt, in 1984, the Revised Model Business Corporation Act (Revised …

Recent Developments Concerning The Duty Of Care, The Duty Of Loyalty, And The Business Judgment Rule, Patricia A. Daniel

Vanderbilt Law Review

The judiciary faces a difficult task in attempting to define the proper standards of conduct for corporate directors and officers. Although courts have enunciated various standards, the prevailing theme has been that corporate directors and officers are fiduciaries who have a "distinct legal relationship" with the corporation and its shareholders. As fiduciaries, directors and officers must con-form to the duty of care and the duty of loyalty. The business judgment rule, which creates a presumption of propriety for directors' and officers' substantive business decisions, developed concurrently with these duties. Several recent court decisions concerning corporate director and officer liability appear …

Conclusion, Christopher C. Whitson, Thomas A. D'Ambrosio, Patricia A. Daniel, Kathryn N. Fine, Robert P. Mckinney, Marcia M. Mcmurray, Bennet L. Ross

Vanderbilt Law Review

Despite recent responses designed to combat the increased liability exposure of directors and officers, the personal risks for corporate insiders remain significant. With corporations operating in an ever-complex regulatory maze, there has been an increased focus on corporate accountability. The difficulty in resolving director and officer liability issues, however, arises in balancing the need to punish misguided fiduciaries with the need to protect aggressive managers who take good faith risks to produce increased corporate profits. While long-range solutions to this balancing problem are essential, directors and officers should pursue short-term tactics to reduce their risk of personal liability.

Because it …

The Supreme Court And The Definition Of "Security": The"Context" Clause, "Investment Contract" Analysis, And Their Ramifications, Marc I. Steinberg, William E. Kaulbach

Vanderbilt Law Review

In two recent decisions' construing the scope of the federal securities acts, the Supreme Court apparently has undertaken to alleviate some of the confusion and uncertainty surrounding the most fundamental question in securities law: the definition of"security" itself. Much of the existing confusion can be traced to earlier decisions of the Court that first implied, and later held,that the regulatory or offering context in which a particular transaction occurs could function to exclude the transaction from cover-age of the securities laws' anti-fraud provisions. This result could follow even though the transaction in question otherwise might satisfy the traditional Howey or …

Protecting Corporate Directors And Officers: Indemnification, Robert P. Mckinney

Vanderbilt Law Review

This Special Project Note on indemnification and the succeeding Special Project Note on insurance are intended to offer practical advice to practitioners with corporate clients. All fifty states have passed indemnification statutes that establish the scope and terms under which a corporation may, and in some cases must, indemnify its directors and officers. Legal counsel should test the scope of a particular indemnification statute by determining what standards must be met, what procedures must be followed, and what expenses may be indemnified under the relevant state statute. If a particular indemnification statute is not limited to the alternatives specified therein, …

Inadmissible Evidence As A Basis For Expert Opinion Testimony: A Response To Professor Carlson, Paul R. Rice

Vanderbilt Law Review

Rule 703 of the Federal Rules of Evidence permits expert witnesses to offer opinions based upon evidence that has not been offered in the proceedings. The Rule also sanctions the expert's basing her opinion on inadmissible evidence if that evidence is "of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject." In a recent Essay in this Review, Professor Carlson presents a helpful exposition of the confused evidentiary status of this otherwise inadmissible evidence. He correctly notes that the majority of courts refuse to allow the inadmissible evidence upon which the …

Promoting Truth In The Courtroom, Edwin Meese, Iii

Vanderbilt Law Review

It is a distinct privilege to be with you and to join my predecessors as Attorney General-Elliot Richardson, Judge Griffin Bell,and William French Smith-in becoming a Cecil Sims Lecturer.One of the best features of university life is the freedom it affords to pursue the search for knowledge. In virtually all disciplines an understanding of certain truths, of the way various historical or scientific facts fit together, is an important starting point for further learning and deliberation. The search for truth is also a tremendously important undertaking beyond the campus walls,especially in the realm of criminal justice. That endeavor, the effort …

The Corporate Practice Of Medicine Doctrine: An Anachronism In The Modern Health Care Industry, Jeffrey F. Chase-Lubitz

Vanderbilt Law Review

Corporations, in the form of small, doctor-owned, proprietary hospitals and community or charity nonprofit hospitals, have pervaded the provision of health care services for many years. Recently, however, private, for-profit corporations increasingly have entered the health care field. One industry expert predicts that by the mid-1990s, ten national firms will provide fifty percent of the nation's medical care. Nationwide hospital chains, nonexistent twenty years ago, now own or manage twelve percent of the nation's hospitals. The proliferation of health maintenance organizations, freestanding emergency centers,' and other proprietary health care delivery systems exemplify the increased commercialization of medicine. Indeed, many young …

Prepayment Penalties: A Survey And Suggestion, Robert K. Baldwin

Vanderbilt Law Review

Borrowers often wish, for various reasons, to satisfy their indebtedness prior to the maturity of the loan agreement. Conversely, lenders often wish to prevent early payment of the debt or,alternatively, to exact a fee from the borrower for the privilege of prepaying the debt. Between seven and ten percent of the approximately thirty-two million loans secured by mortgages on real estate are prepaid each year.' At least seventy percent of these loans contain a provision in the loan agreement calling for a penalty in the event of prepayment. This Note discusses the rights of lenders and borrowers when a borrower …

The President And Faithful Execution Of The Laws, Arthur S. Miller

Vanderbilt Law Review

The Constitution is explicit: The President "shall take care that the laws be faithfully executed." Lurking, however, within that seemingly unambiguous language are several constitutional problems-some resolved, some partially resolved, some the subject matter of continuing controversy. As the power of the Presidency has aggrandized since 1789, particularly during the past half century, the question of the meaning to be given to that phrase-and by whom-in different contexts has moved to the forefront of issues involving the separation of governmental powers. This Essay will use the label "separation of governmental powers," although it long has been known that the constitutional …

Freeing Mortgages Of Merger, Ann M. Burkhart

Vanderbilt Law Review

Change in real property law often occurs with glacial speed.This rate of change in part reflects the normal inertia of established law. A more complete explanation, however, is the innate conservatism connected to a commodity that once was the primary source of wealth and power. That this conservatism is innate should not prevent application of Ockham's razor as needed. The relationship of the doctrine of merger to the burgeoning law of mortgages is one such area. "If the law has to bear these medieval shackles the time surely has come to examine them carefully. They may have rusted away."

The …

Copyright Infringement And The Eleventh Amendment: A Doctrine Of Unfair Use?, John C. Beiter

Vanderbilt Law Review

The federal courts recently have renewed the debate concerning whether a person can sue a state government or its instrumentalities for copyright infringement. The question presents a clash of fundamental constitutional principles between the copyright and patent clause,' whose purpose is to promote the free flow of ideas by rewarding creativity,' and the eleventh amendment,whose primary purpose is to protect the federal form of government by insulating states from suit in federal court. The Copyright Act of 1976 (the 1976 Act) and its predecessor, the Copyright Act of 1909 (the 1909 Act), grant copyright proprietors"exclusive" rights in their works. While …

Bankruptcy Valuation Under Selected Liquidation Provisions, Steven L. Pottle

Vanderbilt Law Review

Chapter 7 of the Bankruptcy Code' (the Code) serves a distributive function; it is designed to distribute equitably a debtor's assets from the bankruptcy estate to creditors. All nonexempt as-sets owned by a debtor at the time of filing a petition for bankruptcy become part of the bankruptcy estate and subsequently are distributed to creditors. Generally, debtor transactions prior to the filing escape the purview of Chapter 7. If, however, a debtor distributes assets during the applicable statutory period, giving preference to some creditors' or defrauding other creditors,' the Code empowers the bankruptcy trustee to avoid those transfers.After filing, a …

The Political Economy Of Co-Financing America's Urban Renaissance, Robin P. Malloy

Vanderbilt Law Review

America's urban centers are experiencing a renaissance of sorts that reflects the vitality of a renewed interest in the city.Dynamic growth and revitalization of the central city have emerged since the 1970s as key focal points for investment and development, replacing years of investing primarily in suburbanization. The emerging activity in America's urban down towns has been more than an isolated or segmented investment in office buildings. With strong political support and the emergence of an affluent group of new urbanites, some central cities are said to be transforming into entirely new urban environments where people not only work, but …

Free Speech, Copyright, And Fair Use, L. Ray Patterson

Vanderbilt Law Review

The copyright clause provides that "[the Congress shall have Power... To promote the Progress of Science. ..by securing for limited Times to Authors .. .the exclusive Right to their . . .writings ...."I The first amendment provides that "Congress shall make no law. . .abridging the freedom of speech, or of the press ."..."

Three modern developments portend a conflict between these two clauses of the Constitution: (1) the emergence of the doctrine that free speech encompasses the right to have access to, as well as the right to disseminate, ideas; (2) the elimination of the requirement of publication, which …

Thinking (By Writing) About Legal Writing, Philip C. Kissam

Vanderbilt Law Review

The practice of law requires a good amount of original writing,and it is a commonplace today that much of this writing is done rather poorly. Charles Fried, the United States Solicitor General,has implied that much legal writing, especially in appellate briefs,is "turgid and boring."' John Nowak, a Professor of Law at the University of Illinois, has reiterated Fred Rodell's classic complaint that the writing in law reviews lacks both style and substance. More fundamentally, Steven Stark, in his Harvard Law Review comment, has argued that the style and substance of most legal writing are flawed by lawyers' ideological commitments to …

Nonbank Banks: Congressional Options, Davis W. Turner

Vanderbilt Law Review

The Bank Holding Company Act I (BHCA) defines a bank as an institution that both accepts demand deposits and makes commercial loans. An institution choosing to perform only one of these two activities falls outside the scope of the BHCA and constitutes a "non-bank bank." The creators of a non-bank bank receive two principal benefits from the institution's status as a non-bank bank. First, a bank holding company acquiring a non-bank bank can avoid the geographical restrictions imposed by the Douglas Amendment to the BHCA. Second, a company outside of the banking industry may acquire a non-bank bank without becoming …

Regulation Of New Financial Instruments Under The Federal Securities And Commodities Laws, David J. Gilberg

Vanderbilt Law Review

In the last few years, "an endless stream of exotic financial instruments conjured by Wall Street wizards" literally has taken the financial community by storm, fundamentally altering market trading practices and pitting institutions against each other in an intense competition for development of still more innovative instruments. These products--which include various types of"swaps," options, forward contracts, and price guarantees--now are being offered to and traded by every major financial institution and multinational corporation in the world, as well as by governments and individuals, and nothing indicates that the unprecedented growth of the markets for such instruments is likely to sub-side …

Miranda And The State Constitution: State Courts Take A Stand, Mary A. Crossley

Vanderbilt Law Review

This Note examines how state courts have interpreted state constitutional guarantees of the privilege against self-incrimination independently of the Supreme Court's construction of the fifth amendment. Part II focuses on the historical and theoretical underpinnings of state constitutional law and examines state courts'renewed reliance on their state constitutions. Part III discusses the Supreme Court's interpretation of the fifth amendment in Miranda and its progeny. Part IV presents the states' response to Supreme Court holdings and surveys state court decisions interpreting state constitutions' self-incrimination provisions more broadly than the fifth amendment. Finally, Part V examines the potential for further growth in …

Industry Self-Regulation And The Useless Concept "Group Boycott", Robert Heidt

Vanderbilt Law Review

A doctor is denied staff privileges at a private hospital after a negative recommendation from the hospital's medical staff. A real estate agent is denied membership in a multiple. listing service by a vote of the current members. A golfer is deemed ineligible to compete in a professional golf tournament by a committee of the Professional Golf Association. A college is refused accreditation by a private accrediting association. Plywood of type three ply one half inch is found not to meet the commercial standard for douglas fir plywood established by the Douglas Fir Plywood Association. A fuel cutoff device is …