Law Commons^™

Independent Political Action Groups: New Life For The Fairness Doctrine, Charles D. Ferris, L. Gregory Ballard

Vanderbilt Law Review

During the past decade, independent political action committees (PACs) have grown dramatically as an alternative source of funding for political candidates. Congress and many commentators have expressed fear over the potential political power of these independent expenditure groups, which are not accountable to political parties. In their Article Messrs. Ferris and Ballard argue that the political broadcasting laws, particularly the Fairness Doctrine, serve as essential barriers to PACs' attempts to dominate the political process through unrestricted spending on political advertising. Although some critics have denounced the Fairness Doctrine, which requires broadcasters to provide balanced coverage of controversial issues, as outdated …

Federal And State Roles In Telecommunications: The Effects Of Deregulation, Eli M. Noam

Vanderbilt Law Review

During the past decade, federal telecommunications regulatory policy has changed its focus from a goal of universally available and affordable residential service to one of economic efficiency. In changing its regulatory focus, the federal government has indirectly deprived the states of the means to accomplish their goal, which remains one of insuring universally available and affordable residential service. In his Article Professor Noam examines the evolution of the traditional federal-state coregulatory system, contrasts the emerging federal regulatory approach with the states' policies, and discusses the reasons for federal predominance in telecommunications regulation.He argues that the reorientation in federal regulatory policy …

Cable Franchising And The First Amendment, William E. Lee

Vanderbilt Law Review

In awarding and regulating cable franchises, cities often extract from cable operators promises and conditions such as access channels in exchange for exclusive use of public rights-of-way. Professor William Lee in this Article argues that this cable franchising process violates the first amendment rights of cable operators. Professor Lee rejects the two rationales for municipal cable regulation by contending that cable is not a natural monopoly in every market and that cable's use of public rights-of-way requires content neutral regulation. The exacting of conditions such as access channels, however, is not content neutral regulation. Furthermore, censorship decisions that municipalities require …

Global Governance Of Global Networks: A Survey Of Transborder Data Flow In Transition, Anne W. Branscomb

Vanderbilt Law Review

This Article's examination of the development of the international system of information exchange limits its inquiry to transnational transport of computer generated and machine readable digital data via electronic transmission. This definition includes voice,image, characters, and other symbols transported by satellite, microwave, cable, or conventional radio in a converged digital bitstreams that does not discriminate between types of communications services. These delivery systems now are called integrated services digital networks (ISDNs) The last part of the Article examines the legal environment in which these networks currently are developing.

National Labor Relations Act: The Roles Of The Nlrb And The Courts Of Appeals After Pullman-Standard In Determining Employer Motivation In Section 8 (A)(3) Dual Motive Cases, William E. Anderson

Vanderbilt Law Review

This Note advocates use of the Pullman-Standard Title VII model to define the proper roles of the Board and the courts of appeals in determining discriminatory intent in section 8 (a)(3) dual motive cases. Part II of this Note discusses the current confusion concerning the amount of discretion a court of appeals owes the Board's finding of discriminatory intent in dual motive cases. Part II also traces the Supreme Court's failure to define clearly the proper roles of the Board and the courts of appeals in finding discriminatory intent, the confusion this failure has caused, and the Board's unsuccessful attempt …

Cable Television's Emerging Two-Way Services: A Dilemma For Federal And State Regulators, Frank W. Lloyd

Vanderbilt Law Review

Cable television as an entertainment medium has been the subject of various federal, state, and local regulatory schemes since its inception in the 1950's. The introduction of nonvideo two-way cable services that provide a capacity for responsive data and voice transmission between users of the two-way system has renewed interest in the appropriate role of government in the regulation of two-way cable services. Telephone companies in particular have pressed state and federal regulators to identify cable two-way systems as common carriers and to impose on them two-way cable common carrier regulations. In this Article Mr. Frank Lloyd discusses actual and …

Markets For Money -- Does The Garn-St.Germain Money Market Deposit Account Overcompete With Mutual Funds, Betty R. Turner

Vanderbilt Law Review

Since 1980 the financial marketplace has experienced a period of rapid evolution during which financial institutions have abandoned their differentiated product and service lines, within government regulatory limits, to compete with each other in obtaining funds from depositors and investors. For example, only commercial banks historically provided checking account services; now, many depository and nondepository institutions offer transaction services similar to checking accounts. The thrift institutions --savings and loan associations, mutual savings banks, and credit unions -- provide their customers with "checking" account services through negotiable order of withdrawal (NOW) accounts and share draft accounts. Investment banking houses, nondepository institutions,introduced …

Federal Regulation Of Emerging Genetic Technologies, Thomas O. Mcgarity, Karl O. Bayer

Vanderbilt Law Review

Over the past ten years scientists have perfected revolutionary techniques in the field of genetic engineering. Although this new technology promises to have enormous commercial and industrial value, some scientists fear that the risks accompanying genetic experimentation may outweigh its social benefits. In their Article Professor McGarity and Mr. Bayer examine the legal debate over how government should regulate this emerging technology. After describing various genetic engineering techniques and the risks underlying their use, Professor McGarity and Mr. Bayer discuss the elements of a regulatory framework adequate to handle the new technology and assess the existing regulatory structure in terms …

Ethics Inside The Law Firm: Do It My Way Or You're Fired, L. Harold Levinson

Vanderbilt Law Review

Part I of this Book Review examines the two business management models -- the autocratic and the "good" -- that Ewing discusses in his book and concludes that the "good" management model serves well as the basis for the law firm management theory that this Book Review proposes. Part II outlines the provisions of the Model Rules that are relevant to law firm management. Part III introduces this reviewer's theory of the fiduciary duties of law firm partners and their associates. Part IV gives a hypothetical example of two law firm associates who face a series of dilemmas when a …

The Deductibility Of Daily Transportation Expenses To And From Distant Temporary Work Sites, Michael D. Rose

Vanderbilt Law Review

In the Article Professor Rose addresses the uncertainty that has characterized judicial application of Internal Revenue Code provisions to daily transportation expenses to and from distant temporary work sites. Although the Internal Revenue Code disallows deductions for commuting expenses to and from work, transportation expenses between work sites are deductible. The courts have had some difficulty applying these principles to distant temporary work sites. Professor Rose argues that the United States Tax Court in Turner v. Commissioner has fomented much of this confusion. Although the court reached the correct determination on the facts, its rationale is flawed. According to Professor …

An Analysis Of The Legal, Social, And Political Issues Raised By Asbestos Litigation, John P. Burns, G. Edward Cassady, Iii, Kenneth B. Cole, Jr., Timothy R. Dodson, Philip E. Holladay, Jr., Paul C. Ney, Jr., Drew T. Parobek, Kimberly Payne, D. Blaine Sanders, L. D. Simmons, Ii, Charles D. Maguire, Jr. Special Project Editor, Laurin Blumenthal Associate Special Project Editor

Vanderbilt Law Review

This Special Project examines the most important issues of the asbestos problem and advocates a congressional solution (1) to relieve the courts of the thousands of present and potential asbestos cases, (2) to protect future claimants' rights to adequate compensation, and (3) to provide for equitable participation by all responsible parties, which, in addition to asbestos manufacturers,include the federal government, insurance companies, and the tobacco industry. The first six parts of the Special Project examine the various issues of asbestos litigation: theories of liability in products liability suits against asbestos manufacturers, causation,defenses, statutory limitations on actions, collateral estoppel, and punitive …

Seller Liability Under Section 12(2) Of The Securities Act Of 1933, Leonard A. Silverstein

Vanderbilt Law Review

This Note discusses which persons courts should deem to be"sellers" under section 12(2) according to their relationships to the challenged transaction. Part II examines the divergent approaches that courts have developed to identify seller status in the absence of legislative history. Part III analyzes the three major approaches and compares the scope of liability under each analysis. Last, part IV concludes that significant differences exist among these approaches and that courts uniformly should adopt a modified version of the proximate cause-substantial factor analysis

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This part examines each of the three approaches in particular situations and compares the results under …

Use Of Surveillance Evidence Under Title Iii, Thomas C. Banks

Vanderbilt Law Review

The rationale offered by Congress for requiring immediate sealing of wiretapping tapes by the court upon the completion of the interception period is to preserve the integrity of the tapes by preventing any tape tampering, alteration, editing, or other governmental bad faith. Congress, however, also added an exception to the sealing requirement that permits disclosure of the tapes' contents in a judicial proceeding if the government has contravened the sealing requirement yet has offered a satisfactory explanation for either a failure to seal or a delay in sealing. No circuit court treats sealing requirement violations in a manner that effects …

The American Codification Movement, A Study Of Antebellum Legal Reform, Robert W. Gordon

Vanderbilt Law Review

Between 1820 and 1850 American legal commentators became obsessed with whether legislatures should codify, either in whole or in part, the common law of the American states. Indeed, "[a]lmost every law writer after 1825 felt compelled to include his views [on codification] in his works of whatever sort."" The enormous literature that emerged from this period survives today to fascinate modern legal historians, who seem to have developed their own obsession for the "codification" issue. As Lawrence Friedman has said, "The codification movement is one of the set pieces of American legal history." Charles M. Cook's "The American Codification Movement: …

The Causation Issue In Workers'compensation Mental Disability Cases: An Analysis, Solutions, And A Perspective, Lawrence Joseph

Vanderbilt Law Review

Cases under workers' compensation systems that concern mental disabilities present special problems in the determination of causation. In this Article Mr. Joseph argues that the complexities inherent in a decision whether a mental disability has arisen out of employment force administrative agencies and courts in these cases to engage in normative evaluative inquiries. These inquiries, according to Mr. Joseph, result in findings that potentially frustrate the underlying compromise policy of workers' compensation systems; these evaluative decisions create classes of claimants that may be under or over inclusive. Mr. Joseph describes several possible solutions to this problem and concludes by reviewing …

Problems In Giving Obscenity Copyright Protection: Did Jartech And Mitchell Brothers Go Too Far?, Kurt L. Schmalz

Vanderbilt Law Review

This Recent Development traces in part II the emergence of the rule that obscenity is not copyrightable. Part III then examines the courts' reasoning in Mitchell Brothers and Jartech and analyzes the impact of these cases on copyright law. Part IV finds that although these courts properly vindicate free expression, they fail to recognize adequately the national policy against obscenity and the inconsistency of affording federal copyright protection to materials that violate federal obscenity laws. Thus, this Recent Development argues that the strong national policy against obscenity, as manifested in federal anti-obscenity statutes, requires courts in some cases to deny …

Tying Arrangements And Class Actions, Herbert Hovenkamp

Vanderbilt Law Review

This Article does not attempt to identify socially harmful tying arrangements." Rather, it draws upon the vast literature and case law of tying arrangements to suggest possible solutions to a perplexing problem in the law of antitrust class actions: under what circumstances do common questions predominate over individual questions in tying arrangement cases and thereby justify class action treatment? Courts today agree generally that although the amount of damages may vary considerably from one prospective class member to another, certification of a class action requires that the fact of injury be demonstrable by proof common to all members of a …

Free Speech And The Assumption Of Rationality, Frederick Schauer

Vanderbilt Law Review

First amendment doctrine is now both broad and complex, and the task of writing about all of it seems at least forbidding and perhaps impossible. Unthwarted by the magnitude of the mission, however, Franklyn Haiman has attempted, in Speech and Law in a Free Society,7 to survey and to integrate almost every area in which the first amendment restricts or should restrict the powers of the states and the federal government. Haiman's book is in some ways reminiscent of Thomas Emer-son's The System of Freedom of Expression." Like Emerson,Haiman devotes only a relatively brief introductory portion of his book to …

Freedom Of Association And State Regulation Of Delegate Selection: Potential For Conflict At The 1984 Democratic National Convention, Platte B. Moring, Iii

Vanderbilt Law Review

This Note begins with a discussion of the history of the regulation of state parties by state law and national party rules. The Note then traces the development of case law concerning state regulation of party delegate selection procedures. Finally, the Note explores the potential for credentials disputes and litigation on the primacy of state party rules over contrary state laws if both the party rules and the state regulations comply with the Delegate Selection Rules for the 1984 Democratic National Convention. The Note concludes that the first amendment right of freedom of association guarantees that a state party may …

Swimming Against The Deregulatory Tide, Harry S. Gerla

Vanderbilt Law Review

Increasing pressure from institutional investors during the last two decades has led to indirect discounting practices that some commentators contend threatens the fixed price offering system. In response to this concern the SEC in 1980 approved new NASD rules designed to bar direct or indirect discounting in fixed price public offerings of securities. In this Article Professor Gerla argues that the SEC erred in approving the new NASD rules. Professor Gerla states that the new rules change drastically the Commission's policy that the fixed price system operate without direct or indirect government enforcement. Further, he contends that the SEC approved …

State Taxation Of Energy Resources: Are Consuming States Getting Burned?, Nancy E. Shurtz

Vanderbilt Law Review

The Arab oil embargo of 1973 and the severe energy shortage it caused in the United States prompted federal authorities to formulate a national energy policy that would encourage exploitation of domestic energy resources. As the federal government has implemented this energy policy, states rich in natural resources have begun to tax the energy mining and production operations within their borders.

In this Article Professor Shurtz discusses the constitutional limits of this taxation and examines how the revenues from these taxes alter the balance of wealth between energy-producing and energy-consuming states. Professor Shurtz concludes that revisions in revenue sharing formulae, …

Professional Competence And Social Responsibility: Fulfilling The Vanderbilt Vision, Sandra D. O'Connor

Vanderbilt Law Review

In our laudable attempt to train law students to "think like lawyers" by teaching them legal method, we must not lose sight of the fact that questions of professional responsibility cannot properly be resolved with the same legal framework of analysis. Rather,we must see that as professionals with almost exclusive access to our system of justice, we have moral responsibilities totally outside the scope of the legal rules, and not amenable to analysis in terms of legal method. It is time to return to consideration of the moral and spiritual foundations of our legal system. It is time to train …

The Interest In Limiting The Disclosure Of Personal Information: A Constitutional Analysis, Heyward C. Hosch Iii

Vanderbilt Law Review

This Note examines possible constitutional protections for the individual interest in restricting a government agency's dissemination of legitimately compiled personal information to the purpose for which it was originally obtained. Part II of this Note defines the substantive interest that underlies the individual's desire to limit disclosure of information about himself by the government. Part III examines Congress' response to the growing public concern for individual control of personal information and concludes that legislative action has been and likely will continue to be inadequate protection for the individual's interest in limited disclosure. The next part discusses the possible textual sources …

Criminal Liability Of Corporate Officers For Strict Liability Offenses - Another View, Kathleen F. Brickey

Vanderbilt Law Review

This Article offers an alternative analysis of the doctrine articulated by the Supreme Court in Dotterweich and Park and its subsequent application by the Ninth Circuit. In the course of so doing, it suggests that Professor Abrams has lost sight of the public welfare offense model that provided the analytical framework within which the cases were decided and that his postulates may thus be faulted as lacking in context. The analysis in this Article demonstrates that the responsible share standard of liability has, from the outset, incorporated the requirement of an act or omission to act and that of causation …

Book Review: Federal Rulemaking, Jeffrey A. Parness

Vanderbilt Law Review

In the 1979 Annual Report on the State of the Judiciary'Chief Justice Burger called for a fresh look at the entire federal rule making process. Following the Chief Justice's lead, the Federal Judicial Center' responded with a report by Winifred R. Brown entitled Federal Rulemaking: Problems and Possibilities. In a foreward to that report Professor A. Leo Levin, the Federal Judicial Center's director, discouraged any attempt to intiate "a thorough review of the strengths and weaknesses of the process," and advised the author instead to focus "on those aspects of the process that had been singled out for criticism and …

Rule 10b-5-The Equivalent Scope Of Liability Under Respondeat Superior And Section 20(A)-Imposing A Benefit Requirement On Apparent Authority, Carol M. Lynch

Vanderbilt Law Review

This Note demonstrates that the scope of employer liability for employees' rule 10b-5 violations is no broader under a proper application of respondeat superior than under section 20(a). This Note does not address the question whether respondeat superior applies under rule 10b-5, but rather how courts should apply it.

Part II examines the majority, minority, and Third Circuit decisions on employer liability. Part III discusses the traditional analysis under both respondeat superior and section 20(a) and compares the scope of liability under each one. Part III concludes that except for an employer's liability for acts that are within an employee's …

Burdens Of Proof: Degrees Of Belief, Quanta Of Evidence, Or Constitutional Guarantees?, C.M.A. Mccauliff

Vanderbilt Law Review

This Article analyzes the whole range of burdens of proof as well as their constitutional implications. Part H of the Article discusses the traditional burdens of proof and the use of probability theory in legal fact finding. Part HI of the Article studies the decision making processes of law enforcement officers, the judges that review their decisions, and the decision making processes in appellate and administrative review. Part IV of the Article returns to the trial process and analyzes burdens of proof, not as degrees of belief, but as reflections of constitutional due process that mandate a required degree of …

Collateral Estoppel Without Mutuality: Accepting The Bernhard Doctrine, William S. Byassee

Vanderbilt Law Review

This Note adopts a more moderate position: the Bernhard doctrine is but a minor alteration of collateral estoppel principles. It has not and will not generate the unfairness and injustice that its critics have predicted. After tracing the development of the principle of collateral estoppel from its origins in early English common law, this Note discusses some suggested justifications for the mutuality requirement and some generally accepted exceptions to its use. It then examines the growth of the Bernhard doctrine and compares how the courts have applied both the mutuality requirement and the Bernhard doctrine. Finally, the Note seeks to …

Defensive Responses To Tender Offers And The Williams Act's Prohibition Against Manipulation, Elliott J. Weiss

Vanderbilt Law Review

This Article discusses whether arrangements designed to ensure the success of a favored bidder or simply to defeat an unwanted tender offer are "manipulative acts or practices" barred by section 14(e).' It argues that the critical issue is whether an arrangement significantly obstructs the operation of a fair auction market for a target company's shares. The Article maintains that recent Supreme Court decisions interpreting section 14(e) and other antifraud provisions of the federal securities laws provide substantial support for this approach to interpreting section 14(e). The Article first discusses the definition of section 14(e) manipulation. The recent Marathon decision provides …

Baseball's Third Strike: The Triumph Of Collective Bargaining In Professional Baseball, Robert A. Mccormick

Vanderbilt Law Review

Since the inception of professional baseball, team owners have imposed limits on the freedom of players to negotiate contract terms. In this article Professor McCormick traces the history of attempts by professional baseball players to obtain contractual freedoms through the use of the antitrust and labor relations laws, attempts that culminated with the players' strike of 1981. Although players in other team sports successfully have utilized antitrust laws to increase player bargaining power, Professor McCormick argues that labor law has provided baseball players the only effective means to gain increased contractual freedoms. Professor McCormick concludes that player-owner disputes over the …