Law Commons^™

The Place Of Law And Literature, William H. Page

Vanderbilt Law Review

The modern field of law and literature began in 1907 with the publication of Wigmore's list of novels related to law.' The form of that work is significant because for decades, the field remained largely one of reading lists assembled to broaden the perspectives of practicing lawyers. In literary scholarship, law and literature scarcely could have been called a field; critics discussed the effects of law on the work of various writers, often perceptively but their studies were independent of each other and of legal scholarship. In the past decade, however, law and literature has shed its nonprofessional heritage and …

The Development Of Professional Judgment In Law School Litigation Courses: The Concepts Of Trial Theory And Theme, Edward J. Imwinkelried

Vanderbilt Law Review

I was delighted when the Vanderbilt Law Review asked me to submit a short essay on trial advocacy. This Essay allows me to discuss two concepts, the trial theory and theme, that should be highlighted in every law school litigation course. Several years ago I wrote a text on commercial litigation for practitioners. That text proposed definitions for the concepts of "theory" and "theme"and suggested that trial attorneys organize their pretrial preparation and trial presentation in terms of those concepts. Since the publication of the text, I have attempted to refine the concepts and to use the concepts to restructure …

Defending Miranda: A Reply To Professor Caplan, Welsh S. White

Vanderbilt Law Review

Professor Caplan yearns for the good old days "when the police enjoyed greater public confidence" and, in accordance with the tactics recommended in the police manuals, it was acceptable "for an investigator to talk sharply to the suspect or glare at him or sit too closely or withhold cigarettes, or, from the opposite vantage, to pretend to be a sympathetic friend or a concerned coreligionist."'Thus, Professor Caplan attacks the Miranda decision on the ground that "by introducing novel conceptions of the proper relationship between the suspect and authority," Miranda operates to subvert the principal function of the criminal process, the …

Thoughts On A Faded Peacock: The Effect Of Erisa's Preemption Provision On State Third Party Prescription Drug Program Statutes, Richard M. Rindler, Evan Miller

Vanderbilt Law Review

This Article analyzes the preemptive effect of ERISA on state third party prescription drug program legislation. It argues that such laws do not "relate to employee benefit plans" and that even if the courts were to view them as relating to employee benefit plans, the laws meet the statutory exception to preemption for state laws that "regulate . . . insurance."

The Article contends that third party prescription drug program statutes represent a type of "borderline preemption problem, and it offers a functional approach to resolve the problem. If a state law affects employee benefit plans without infringing on their …

Barriers To Providing Effective Treatment: A Critique Of Revisions In Procedural,Substantive, And Dispositional Criteria In Involuntary Civil Commitment, Donald H. J. Hermann

Vanderbilt Law Review

Anyone spending time in a major urban center in the United States must be shocked by the significant number of mentally ill persons living on the streets--the "bag people" who sleep in door-ways, on steam grates, on subway stairs. These people represent a new lifestyle made possible in part by a policy of deinstitutionalization of the mentally ill, which has been motivated largely by economic considerations and rationalized as a matter of mental health law reform. Another major factor contributing to the increasing denial of treatment to the mentally ill has been a revision of the mental health statutes. A …

The Easement In Gross Revisited: Transferability And Divisibility Since 1945, Alan D. Hegi

Vanderbilt Law Review

Courts have disagreed about the nature, obligations, and privileges that accompany the easement in gross. Generally, an easement is an interest in land which gives the easement holder the right to use that land for a specific purpose, free from the will of the landowner. An easement is in gross when the benefit from the use of another's land inures to the easement holder personally, rather than to the holder's land. The land that is subject to the holder's right of use is the servient tenement. Courts agree on these basic principles of an easement in gross, but have disagreed …

Section 2 Of The Voting Rights Act: An Approach To The Results Test, David L. Eades

Vanderbilt Law Review

The fifteenth amendment' guarantees that a citizen's right to vote shall not depend on his or her race. The Voting Rights Act of 1965 (the Act)2 ended nearly a century of congressional acquiescence to obstruction and subversion of that guarantee by certain state and local governments. The Act was remarkably successful in curbing many race-oriented abuses of the electoral process. Despite this success, however, Congress chose to bolster the 1965 Act with the Voting Rights Act Amendments of 1982., The new legislation's most significant feature was the revision of section 2, which contains the Act's blanket prohibition against "discriminatory"voting procedures.

The Securing Of The Premises Exception: A Search For The Proper Balance, Adam K. Peck

Vanderbilt Law Review

This Recent Development argues that although an opinion endorsed by only two justices is not binding precedent, this portion of Segura represents an undesirable departure from the strict protections traditionally afforded a person's privacy interest in the home and leaves lower courts confused about the constitutional limitations on seizures in the home. Part II examines prior Supreme Court opinions that have defined the parameters of permissible warrantless searches and seizures. Part III explores the circuit court opinions that have developed a "securing of the premises"exception. Part IV describes Chief Justice Burger's analysis in Segura. Part V argues that the Chief …

Questioning Miranda, Gerald M. Caplan

Vanderbilt Law Review

This Article argues that the Supreme Court should go further and reexamine the basic principles underlying Miranda. Although its impact has been tamed by interpretation and practice, and although the hour is late," a case can be made for overruling Miranda. Miranda was not a wise or necessary decision, nor has Miranda proved to be, as is generally contended, a harmless one. It sent our jurisprudence on a hazardous detour by introducing novel conceptions of the proper relationship between the suspect and authority. It accentuated just those features of our system that manifest the least regard for truth seeking, that …

The Place Of Procedural Control In Determining Who May Sue Or Be Sued: Lessons In Statutory Interpretation From Civil Rico And Sedima, Douglas E. Abrams

Vanderbilt Law Review

The dust has begun to settle. After dozens of decisions that split the lower courts into insular camps, a sharply divided Supreme Court has decided Sedima, S.P.R.L. v. Imrex Co. Over four dissents, the Court held that in creating the private civil cause of action under the Racketeer Influenced and Corrupt Organizations Act (RICO), Congress did not limit the plaintiff class to persons who allege "racketeering injury." The five Justice majority also held that Congress did not limit the defendant class to persons previously convicted under RICO's criminal provision or the predicate acts that establish the RICO violation. The Court's …

The Future Of Shared Automatic Teller Networks In The Wake Of Marine Midland Bank: A Call For Federal Legislation, Cynthia Y. Reisz

Vanderbilt Law Review

This Recent Development contends that the Second Circuit's reversal of the lower court decision only temporarily preserves the regional and national interchange systems that have become increasingly popular in the last several years. Federal legislation is necessary to ensure the development of electronic banking technology and to reestablish competitive equality in the dual banking system. Part II traces the treatment of ATMs and shared ATM networks by state legislatures, the Office of the Comptroller of the Currency, and federal courts since the enactment of the McFadden Act. Part III discusses the Marine Midland Bank decision as the first case to …

Quick Termination Of Insubstantial Civil Rights Claims: Qualified Immunity And Procedural Fairness, Edmund L. Carey, Jr.

Vanderbilt Law Review

The Harlow Court both altered the substantive law of qualified immunity and established a procedural goal for implementing the defense. This Note will focus primarily on the procedural aspects of the decision. In the three years that have elapsed since Harlow, lower courts have struggled to carry out the Supreme Court's directive to resolve the qualified immunity issue, if possible, on summary judgment. As a consequence, three distinct but First, what are the outer bounds of the ban on factual inquiry into an official's subjective state of mind? Second, which party, plaintiff or defendant, should bear the burden of proof …

Antitrust Comes Full Circle: The Return To The Cartelization Standard, Nolan E. Clark

Vanderbilt Law Review

Antitrust law has been with us since 1890, the year that Congress passed the Sherman Antitrust Act. In the course of this ex-tended period, antitrust law has achieved an exalted status in the pantheon of American jurisprudence.' Nevertheless, for decades,Sherman Act doctrines have been murky and confused. This confusion was not, however, historically inevitable. When enacted, the Sherman Act had a clear focus. Fortunately, as the Sherman Act approaches its centennial, the Supreme Court has given encouraging signs that it is once again returning to the original focus of the statute.

As originally conceived, the Sherman Act prohibited two related …

Limited Liability For Limited Partners: An Argument For The Abolition Of The Control Rule, Joseph J. Basile, Jr.

Vanderbilt Law Review

One of the important features of the limited partnership' that makes investment in this form of business organization attractive is the general immunity afforded to limited partners from liability for the obligations of the partnership. This immunity, however,can be forfeited. Under both the Uniform Limited Partnership Act (ULPA) and the Revised Uniform Limited Partnership Act (RULPA), a limited partner becomes liable for the obligations of the partnership if, in addition to the exercise of the rights and powers of a limited partner, the limited partner "takes part in the control of the business.''

Not surprisingly, when sophisticated investors are offered …

Retaliatory Lawsuits, The Nlra, And The First Amendment: A Proposed Accommodation Of Competing Interests, Charles E. Wilson

Vanderbilt Law Review

Employer lawsuits motivated by a desire to retaliate against employees exercising their self-organization rights under the National Labor Relations Act' (NLRA or the Act) raise difficult problems. On the one hand, the National Labor Relations Board (NLRB or the Board) and the courts have construed section 8(a)(1) of the Acts to prohibit a wide range and variety of conduct designed to defeat employees' organizational rights. On the other hand, courts have construed the first amendment to protect a litigant's .right of access to the courts. Moreover, a prohibition on civil suits involving state law claims ignores substantial state interests traditionally …

Toxic Torts And Chapter 11 Reorganization:The Problem Of Future Claims, Anne Hardiman

Vanderbilt Law Review

Recently, the toxic tort phenomenon has emerged as a vital concern to manufacturers, employers, and consumers as Agent Orange,' DES, Dalkon Shield, and asbestos victims have litigated toxic tort claims. Toxic torts are unique because any number of victims may be exposed to a toxic substance from which they may contract a disease as far as twenty years in the future. Toxic tort claims typically involve large sums of money and an inestimable number of plaintiffs. The potential for tremendous, financially crippling, liability for these injuries has prompted some asbestos companies to file for reorganization under Chapter 11 of the …

The Supreme Court Takes One Step Forward And The Nlrb Takes One Step Backward: Redefining Constructive Concerted Activities, Christina A. Karcher

Vanderbilt Law Review

The National Labor Relations Act (NLRA or the Act) governs the relationship between employers and employees in the United States. Specifically, section 7 of the Act 3 defines the basic rights of employees and section 8(a)4 defines employer unfair labor practices. Section 8(a)(1) generally proscribes employers from interfering with employees in the exercise of section 7 rights.' Thus,many unfair labor practice cases turn on whether section 7 of the Act protects the employee activity. Section 7 protects "concerted activities" engaged in "for the purpose of collective bargaining or other mutual aid or protection."' Courts frequently struggle to determine whether given …

The Bona Fide Occupational Qualification Exception--Clarifying The Meaning Of"Occupational Qualification", Jane W. May

Vanderbilt Law Review

The Age Discrimination in Employment Act (ADEA) prohibits employment decisions that discriminate against people aged forty to seventy because of their age. An exception to the ADEA permits otherwise unlawful age discrimination when age is a "bonafide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business.'' To invoke this exception successfully, an employer must produce evidence from which a court can conclude that age is a valid BFOQ. Currently,some confusion exists as to whether an employer's evidence must establish that age is relevant to the performance of the employee's specific duties or whether this evidence need …

Tax Expenditures And Tax Reform, Allaire U. Karzon

Vanderbilt Law Review

This Review will focus primarily on the conceptual issues affecting the composition of the tax expenditure list and their relevance to current proposals for new tax legislation. In this context,the tax expenditure theory has been preeminently successful in shaping tax reform. The Review will not delve into the other aspect of Surrey's thesis, which calls for executive and congressional action to alter the budget procedure by integrating direct spending programs with the indirect tax expenditure programs and by adopting one amalgamated budget for the purpose of controlling overall federal spending. This facet of the Surrey thesis has not yet gained …

The Discharge Of Partnerships And Partners Under The Bankruptcy Code, Frank R. Kennedy

Vanderbilt Law Review

The provisions of the Bankruptcy Act applicable to partnerships, partners, and their creditors were cryptic. Significant changes in these provisions made by the Bankruptcy Reform Act of 1978 have not appreciably diminished the difficulties of administering the estates of partnerships and partners in cases under Title 11 of the United States Code. The rules governing discharge of partnerships and partners and the dischargeability of their debts have given rise to a number of special problems under both the Bankruptcy Act and the Bankruptcy Reform Act. This Article undertakes to identify and analyze these problems and to suggest solutions.

Fraudulent Conveyance Law And Its Proper Domain, Douglas G. Baird, Thomas H. Jackson

Vanderbilt Law Review

In 1571 Parliament passed a statute making illegal and void any transfer made for the purpose of hindering, delaying, or defrauding creditors.' This law, commonly known as the Statute of Elizabeth, was intended to curb what was thought to be a wide-spread abuse. Until the seventeenth century, England had certain sanctuaries into which the King's writ could not enter. A sanctuary was not merely the interior of a church, but certain precincts defined by custom or royal grant. Debtors could take sanctuary in one of these precincts, live in relative comfort, and be immune from execution by their creditors. It …

Symposium On Bankruptcy, Stefan A. Riesenfeld

Vanderbilt Law Review

The Bankruptcy Reform Act of 1978, a.k.a. The Code, has now been in operation for more than a quinquennium. Thus, it is old enough to be the subject of a symposium, even if that expression is used in its original meaning of drinking party or festivity. The editors of the Vanderbilt Law Review deserve high praise for having observed that opportunity and gathered an illustrious panel of guest-participants. Special commendations are due for the hosts'success in enlisting in their offerings the cooperation of the celebrated Triple-K-Trio to regale the readership with their now almost classical performing style. Equally gratifying is …

Chapters 11 And 13 Of The Bankruptcy Code -- Observations On Using Case Authority From One Of The Chapters In Proceedings Under The Other, David G. Epstein, Christopher Fuller

Vanderbilt Law Review

This Article will focus on the relationship between Chapter 11 and Chapter 13 of the Bankruptcy Code.' A number of issues are similar or identical in Chapter 11 and Chapter 13. Furthermore,much of the language of Chapter 13 mirrors that of Chapter 11. This Article explores whether courts should apply case law and concepts of one chapter when similar issues arise in proceedings under the other chapter. Parts II and III of this Article address basic similarities and differences between Chapters 11 and 13. Parts IV, V, and VI examine three issues governed by statutory language common to both chapters. …

The Concept Of A Voidable Preference In Bankruptcy, Vern Countryman

Vanderbilt Law Review

A bankruptcy trustee is armed by statute with a number of powers to avoid prebankruptcy transfers made by the now bankrupt debtor. Probably none of these powers is of more concern to prebankruptcy transferees than the trustee's power to avoid preferential transfers. This Article examines the content of and the reasons for the concept of a preferential transfer as it has evolved over the centuries.We inherited the notion of the preferential transfer from Eng-land; but, as elsewhere, we frequently have concluded that we could improve on the English model. Substantial differences exist,therefore, between the English law of voidable preferences and …

A Theory Of Contractual Debt Subordination And Lien Priority, David G. Carlson

Vanderbilt Law Review

Creditors distrust debtors and other creditors. Some of this in-security is dispelled by the two basic priority rules--"first in time"for secured credit and pro rata sharing for general credit. These priorities, however, are merely suppletive rules that replicate what most creditors want.' Individual creditors can have different objectives that call for different priorities. For that reason, creditors vary their rights by contract.'

Two motives exist for subordination agreements. First, a creditor may wish to subordinate its priority to induce another creditor to advance new funds. Second, a junior creditor may wish to advance credit, but the resulting increased leverage of …

The Undersecured Creditor In Reorganizations And The Nature Of Security, Theodore Eisenberg

Vanderbilt Law Review

For better or for worse, bankruptcy law generally recognizes secured creditors' state law rights in collateral. The decision to honor secured creditors' state law interests and the need to modify those interests in bankruptcy generate an essential tension of bankruptcy law. Much of the Bankruptcy Act's complexity and several of its most controversial provisions arise from congressional efforts to resolve this tension.

In trying to walk the fine line between taming and preserving secured creditors' rights, Congress created one of the most extraordinary provisions in the history of bankruptcy law. Section 1111(b) of the Bankruptcy Act of 19781 suspends two …

"Good Faith" And The Discharge Of Educational Loans In Chapter 13: Forging A Judicial Consensus, Jerome M. Organ

Vanderbilt Law Review

In the Bankruptcy Reform Act of 19781 Congress sought to accomplish many goals, some of which appear internally incompatible. For example, Congress enacted section 523(a)(8) to limit the dischargeability of educational loans in Chapter 7 liquidations. At the same time, however, Congress enacted the new Chapter 13 to encourage consumer debtors--including student borrowers--to elect repayment plans whenever feasible. Chapter 13 contains a"superdischarge" provision, which offers debtors a much broader discharge than the discharge that is available under section 523(a) in straight bankruptcy. While section 523(a)(8) excepts educational loans from discharge, section 1328(a) of Chapter 13 does not except them from …

Jurisdiction And Procedure Under The Bankruptcy Amendments Of 1984, Lawrence P. King

Vanderbilt Law Review

The complexity and possible invalidity of the 1984 amendments arise from Congress' refusal to constitute the bankruptcy courts as article III courts. The only group, if any, that this refusal has aided is the district court bench, by keeping their numbers small (except to the extent that additional bankruptcy duties re-quire additions to their numbers) and their status elite. The congressional action works against the needs of all parties involved in the functioning of the Bankruptcy Code and the judicial system itself. Debtors in Bankruptcy Code cases are left uncertain as to the authority of the bankruptcy courts adjudicating proceedings …

Belly Up Down In The Dumps: Bankruptcy And Hazardous Waste Cleanup, Katherine S. Allen

Vanderbilt Law Review

In recent years, the critical risks of improper storage and disposal of hazardous and toxic substances have become frighteningly apparent,' and the regulation of hazardous waste disposal has become increasingly comprehensive and complex, on both the federal and state level. On the federal level, the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or the Super fund Act) together provide a comprehensive statutory and regulatory scheme designed to cleanup existing hazardous waste disposal sites and to prevent the growth of future dangerous sites. Other federal statutes address in a more general way …

The Importance Of Analytical Chemistry To Food And Drug Regulation, Peter B. Hutt

Vanderbilt Law Review

The first thesis this Article postulates is that the history of food and drug regulation during the past twenty centuries has been the history of the development of analytical chemistry, not the history of the development of law and regulation. Statutory law during this period has remained relatively static, while general under-standing of analytical chemistry has leapt ahead with unparalleled achievement. Increased scientific enlightenment, largely achieved through analytical chemistry, has produced every important advance in food and drug regulation. Indeed, the overwhelming success of the field of analytical chemistry has created entire scientific disciplines as well as improvement in government …