Law Commons^™

The Role Of Prosecutors In Serving Justice After Convictions, Fred C. Zacharias

Vanderbilt Law Review

It is an old saw that prosecutors have both an ethical and a legal obligation to "do justice." The contours of that obligation, however, are not well defined. This Article addresses one particularly neglected aspect of the obligation: prosecutors' ethical duty to serve justice after convictions are complete. Prosecutorial justice issues seem to arise less frequently after conviction than at trial. Prosecutorial discretion is at its height in the postconviction context because legislators and professional code drafters have not focused on postconviction issues. Freed from binding legal constraints, prosecutors have avoided deep consideration of how their general obligation to serve …

Unincorporated, Unprotected: Religion In An Established State, Kathryn E. Komp

Vanderbilt Law Review

In the summer of 2004, the group American Veterans Standing for God and Country ("American Veterans") began a cross-country pilgrimage to carry a 5,200-pound statue of the Ten Commandments to Washington D.C. The infamous statue cost Roy Moore his job as Chief Justice of the Alabama Supreme Court when he refused to remove it from the lobby of the state courthouse in 2002. American Veterans took up Moore's cause, however, and in October they brought the Commandments statue to a Christian rally in Washington, D.C. The group then planned to ask Congress to display the statue permanently in the Capitol …

Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Ditslear

Vanderbilt Law Review

Federal statutes, like the lawmaking enterprise itself, are seldom models of efficiency. Whether through inevitable laxity or conscious choice, Congress when legislating leaves a fair number of gaps in the meaning of its complex regulatory schemes. In filling those gaps with case-specific interpretive responses, federal courts perform an important policymaking function.

Such policymaking has lately generated increased concerns about the politicization of the judiciary. Scholars using social science techniques have contributed to the image of courts as policymakers, by establishing that judges' political party affiliation and ideological orientation are at times significant predictors of voting behavior. Presidents and senators have …

The Civilization Of The Criminal Law, Christopher Slobogin

Vanderbilt Law Review

The boundaries of the criminal justice system are eroding. A vast amount of relatively innocuous behavior is now criminalized. The line between criminal penalties and administrative sanctions is dissolving, as criminal law relaxes its mens rea requirements and government bureaucracies aggressively pursue regulatory violations. Distinctions between criminal and civil forfeiture, contempt, and deportation proceedings have been vanishingly subtle for some time. Perhaps the most serious assault on the integrity of today's criminal justice system, however, is the increasing prominence of the "dangerousness criterion" as justification for confinement by the government. Governmental deprivations of liberty have usually been the province of …

Brown, The Civil Rights Movement, And The Silent Litigation Revolution, Stephen C. Yeazell

Vanderbilt Law Review

One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued Brown v. Board of Education spent much time thinking about mass torts. Nonetheless, it is entirely appropriate that a commemoration of their achievements include not only that topic but also international human rights and health care, as well as the more expected ones of education and social welfare. Brown was part of a revolution, and revolutions often have collateral effects as important as their immediate consequences. The civil rights movement followed the same pattern.

As an immediate consequence, that movement …

Pretext, Transparency And Motive In Mass Restitution Litigation, Anthony J. Sebok

Vanderbilt Law Review

On February 23, 1993 The Washington Post published an article entitled, "Tobacco's Last Gasp? Towards a Smoke-Free Society." The article tested the hypothesis that in the near future no one would smoke in the United States. Its focus was on means: how would America reach a point when virtually no one smoked? The predictions ran the usual gamut of policy devices. Although their order of appearance may be random, the list was as follows: legal prohibitions on smoking in public, taxes, social pressure, increased health insurance costs to smokers, and (finally) litigation.

The Washington Post article noted that just one …

Laying One Bankrupt Critique To Rest: "Sosa V. Alvarez-Machain" And The Future Of International Human Rights Litigation In U.S. Courts, Ralph G. Steinhardt

Vanderbilt Law Review

In offering a form of civil redress to the victims of international human rights violations, litigation under the Alien Tort Statute ("ATS") has come to reflect in microcosm the ways that international law and practice have changed in the last half century. Specifically, the successful ATS cases since the Second Circuit's seminal decision in Fildrtiga v. Peia-Irala illustrate the blurring of certain structural distinctions that had long given international law its characteristic shape, especially the distinctions between public and private international law, between treaties and custom, between state and nonstate actors, between international and domestic law, and between lex lata …

School Funding Litigation: Who's Winning The War?, John Dayton, Anne Dupre

Vanderbilt Law Review

Much is being made this year in education law circles and elsewhere about the fiftieth anniversary of Brown v. Board of Education.' The Brown decision has certainly left an indelible mark on schools and other institutions in the United States. But last year the thirtieth anniversary of another major Supreme Court opinion passed largely without comment, despite the fact that it may be the most significant decision regarding public schools since Brown. In 1973, the U.S. Supreme Court, in San Antonio Independent School District v. Rodriguez, concluded that education was not a fundamental right and that disparities in school funding …

Litigated Learning And The Limits Of Law, Michael Heise

Vanderbilt Law Review

The fiftieth anniversary of Brown v. Board of Education' certainly warrants well-deserved celebration, but not one that deflects careful analysis of its legacy. Brown's legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Perspectives on what Brown "means" and what it has accomplished vary tremendously and reveal just as much about ourselves as they do about the decision itself. This ambiguity invariably muddles Brown's legacy.

I argue that Brown's legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, …

Doing Good, Doing Well, Howard M. Erichson

Vanderbilt Law Review

On the fiftieth anniversary of Brown v. Board of Education,' it is fitting that we should take account not only of what has become of school desegregation but also of the heroic public interest lawyer figure embodied by Thurgood Marshall. For his role as "the chief litigator for the civil rights movement," Marshall is widely regarded as a preeminent role model for public interest lawyers. Descriptions of Marshall's career as a public interest advocate emphasize not only his ability to "use the legal system as a tool for social change," but also his personal sacrifice as a lawyer who persevered …

With All Deliberate Speed: Civil Human Rights Litigation As A Tool For Social Change, Beth Van Schaack

Vanderbilt Law Review

It has been said that Fildrtiga v. Peha-Irala is the Brown v. Board of Education of human rights litigation. Like Brown, Fildrtiga presents one of those rare "breakthrough moments" in law. In Fildrtiga, the Second Circuit confirmed that victims of human rights abuses abroad could seek legal redress in United States courts under the then-obscure Alien Tort Claims Act (ATCA). Fildrtiga thus inaugurated a steady line of cases in U.S. courts invoking the ATCA and related statutes to adjudicate international human rights claims. For a variety of reasons, including the very existence of these statutes, civil litigation has emerged as …

On What A "Private Attorney General" Is--And Why It Matters, William B. Rubenstein

Vanderbilt Law Review

May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.' This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general." For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion …

"The House Was Quiet And The World Was Calm The Reader Became The Book", Burt Neuborne

Vanderbilt Law Review

Professor Neuborne argues that we err in reading the Bill of Rights "in splendid isolation" as a randomly ordered set of clause-bound norms. Instead, he argues that the disciplined order and placement of the thirty-three ideas in the Bill of Rights, especially the six textual ideas united in the First Amendment, reveals a deep contextual structure imposed by the Founders that sheds important light on the meaning of the constitutional text. He argues that the "vertical" order of the first ten amendments, as well as the "horizontal" order of ideas within each amendment, provides important clues to a judge seeking …

Human Rights Violations As Mass Torts: Compensation As A Proxy For Justice In The United States Civil Litigation System, Elizabeth J. Cabraser

Vanderbilt Law Review

On July 26, 2000, final approval was granted to a landmark $1.25 billion settlement of the claims of an international class of Holocaust victims against Swiss Banks that engaged in massive looting and misappropriation of assets entrusted to them by hundreds of thousands of Jews and other groups imprisoned, murdered, and dislocated by the Nazi regime. The Swiss Banks complaints linked the actions of Swiss financial institutions to the Nazi regime and its program of genocide.

The Swiss Banks litigation was brought and settled under federal class action rules in the United States District Court for the Eastern District of …

The Public And Private Faces Of Derivative Lawsuits, Robert B. Thompson, Randall S. Thomas

Vanderbilt Law Review

Are shareholder derivative suits at death's door? Once described as "the most important procedure the law has yet developed to police the internal affairs of corporations,"' derivative suits are today regularly portrayed as nuisance suits whose "principal beneficiaries ... are attorneys." Even if these critics are wrong, there may now be less need for derivative suits, as other forms of representative suits have grown up that do much of their work. Federal securities fraud class actions increasingly address legal claims that raise issues about management care, and fiduciary duty class actions under state law are the principal litigation vehicle to …

The Inevitability Of Aggregate Settlement: An Institutional Account Of American Tort Law, Samuel Issacharoff, John F. Witt

Vanderbilt Law Review

For the past decade or so, important aspects of American tort law have sought to reaffirm tort's ostensible commitment to individualized justice. In the courts, "the elephantine mass of asbestos cases"' has produced a reaffirmation of what Justice Souter in Ortiz v. Fibreboard Corporation called the "day-in-court ideal": "our deep- rooted historic tradition that everyone should have his own day in court." The academy, in turn, appears to be in the midst of a sustained revival of the closely related idea that tort law consists in the reciprocal relationship between plaintiff and defendant, in which the bipolarity of the dispute …

The Muddled Duty To Disclose Under Rule 10b-5, Donald C. Langevoort, G. Mitu Gulati

Vanderbilt Law Review

Because the federal securities laws are, at heart, about disclosure, the question of whether and when there is a duty to disclose is often the central question in any given case. Certainly, the Securities & Exchange Commission (SEC) has broad powers to compel disclosures by issuers and certain others and has crafted a mandatory disclosure regime that creates many explicit duties. For a variety of reasons, however, this explicit regime falls short of a comprehensive answer to the duty question. For some sixty years now, the hardest duty questions have been addressed under the rubric of fraud, mainly under Rule …

Growing Pains: The Scope Of Substantive Due Process Rights Of Parents Of Adult Children, Issac J.K. Adams

Vanderbilt Law Review

On February 2, 1958, Milwaukee city police officer Thomas Grady shot and killed 23-year-old Daniel Bell. Officer Grady immediately attempted to cover up the incident, enlisting the help of a fellow officer to place a knife in Daniel's hand and concoct a fictional account of the event. It was only years later, in 1978, that an investigation revealed the true circumstances of Mr. Bell's death. A year after this discovery, the estate of Daniel's father, Dolphus Bell, instituted an action under 42 U.S.C. ? 1983 alleging that the shooting was unconstitutionally, racially motivated, and the death of Daniel Bell deprived …

The Evidence On Securities Class Actions, Stephen J. Choi

Vanderbilt Law Review

Shareholders of large publicly held corporations face a well- known collective action problem. To the extent an individual shareholder bears all the costs of activities that benefit the entire group of shareholders (giving the individual shareholder only a fraction of the benefits), the individual shareholder will have marginal incentive to pursue such collective activities. Corporations owe their shareholders specific duties and rights. However, due to the collective action problem, no single shareholder may seek to litigate these rights. In the context of the federal securities laws within the United States, the U.S. regime provides a solution: private class actions. This …

Taking Adequacy Seriously: The Inadequate Assessment Of Adequacy In Litigation And Settlement Classes, Linda S. Mullenix

Vanderbilt Law Review

In the past decade, the debate over settlement classes has moved considerably beyond the "sturm und drang" inspired by the epic settlement classes in Amchem Products, Incorporated. v. Windsor' and Ortiz v. Fibreboard Corporation. Whereas Amchem asked whether and on what terms federal courts were authorized to approve settlement classes, and Ortiz asked whether a mandatory, limited- fund global asbestos settlement was sustainable, the settlement class issue du jour focuses on the ability of litigants to collaterally attack settlements in remote forums and at remote times.

Because the collateral attack problem is so vital to the sanctity of settlement classes, …

The Role Of Opt-Outs And Objectors In Class Action Litigation: Theoretical And Empirical Issues, Theodore Eisenberg, Geoffrey Miller

Vanderbilt Law Review

We study 236 cases in which we could ascertain quantitative in- formation about the number of objectors, 159 cases with quantitative information about the number of opt-outs, 205 cases with both the size of the class and the number of objectors, and 143 cases with both the size of the class and the number of opt-outs. Opt-outs from class participation and objections to class action resolution are rare: on average, less than 1 percent of class members opt-out, and about 1 percent of class members object to class-wide settlements. Opt-out-rates and objectorrates can be partly explained by observable factors in …

File Early, Then Free Ride: How Delaware Law (Mis)Shapes Shareholder Class Actions, Elliott J. Weiss, Lawrence J. White

Vanderbilt Law Review

Delaware courts have largely privatized enforcement of fiduciary duties in public corporations. In In re Fuqua Industries, Inc. Shareholder Litigation, Chancellor Chandler expressly acknowledged this judicial policy. He noted that Delaware courts implement it partly by allowing private attorneys, working on a contingent fee basis, to initiate and maintain derivative and class actions in the names of "nominal shareholder plaintiffs." Attorneys are subject only to the relatively weak constraints that they must inform their "clients" and receive their consent before they file shareholder suits. Further, Delaware courts use cost and fee shifting mechanisms to "economically incentivize" those attorneys to initiate …

Mid-Decade Congressional Redistricting In A Red And Blue Nation, Patrick Marecki

Vanderbilt Law Review

Following the 2002 elections, Republicans in Texas and Colorado achieved unified control of their state governments. In both states, Republicans introduced congressional redistricting legislation and enacted a new redistricting map. Just a year earlier, following the release of the decennial census, each state had enacted a congressional redistricting map that had governed the 2002 elections. The second round of legislation marked the first time in United States history that a state reopened redistricting for partisan political purposes after a redistricting plan had been adopted following the release of the decennial census, had been upheld as constitutional, and had been used …

Corruption Of A Term: The Problematic Nature Of 18 U.S.C. §1512(C), The New Federal Obstruction Of Justice Provision, Daniel A. Shtob

Vanderbilt Law Review

The year 2002 may be remembered in the annals of the law as the year that corporate America became accountable for its actions. The boardroom, equated with the smoke-filled room of corrupt enterprise and political machination, came under fire as industry giants sank amidst charges of misconduct. In response to high profile allegations of corporate fraud, Congress commenced a fervent bipartisan effort to draft and implement a law to counter corporate obstruction of justice. On July 1, 2002, President George W. Bush signed the Sarbanes-Oxley Act. The bill included a section that prescribes strong penalties for individuals who corruptly impede …

The Right Of Access: Is There A Better Fit Than The First Amendment?, Amy Jordan

Vanderbilt Law Review

James Madison once said, "a popular Government, without popular information, or a means of acquiring it, is but a Prologue to a Farce or Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." For almost forty years, the Supreme Court has anchored the press's and public's right of access to government proceedings and information in the language of the First Amendment. Grounding the right of access in the language of the First Amendment is unsatisfactory not only because it goes beyond …

The Law Of Trade Secrets: Toward A More Efficient Approach, Jon Chally

Vanderbilt Law Review

Trade secret law must efficiently protect that which can be considered a trade secret. Were the law to provide too little protection, information protected as a trade secret would not be created. Were the law to provide too much protection, competition would be unnecessarily stifled. Only efficient protection, meaning neither too little nor too much, appropriately addresses the unique nature of trade secrets as intellectual property. Such a conclusion becomes increasingly necessary given the rising import of trade secret law in the spectrum of intellectual property.

"It is the policy of the law, for the advantage of the public, to …

Explaining The International Ceo Pay Gap: Board Capture Or Market Driven?, Randall S. Thomas

Vanderbilt Law Review

One of the most puzzling aspects of executive compensation is the pay gap that exists between American and foreign Chief Executive Officers (CEOs). U.S. CEOs are paid vastly more than their foreign counterparts: they have higher base salaries, they receive larger bonuses, they get more stock options, and they are given bigger chunks of company restricted stock. Commentators and the financial press have been quick to claim that such differences can be explained by "Board Capture," a theory that claims powerful American executives take advantage of weak domestic boards of directors and passive, dispersed shareholders to overpay themselves exorbitantly.

According …

Can't We All Just Get Along?: The Treatment Of "Interacting With Others" As A Major Life Activity In The Americans With Disabilities Act, Mark Deloach

Vanderbilt Law Review

The Americans with Disabilities Act (ADA) was passed in 1990 with the stated goal of providing a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Congress determined that, at the time of the passage of the Act, approximately forty-three million Americans had mental or physical disabilities. By enacting the ADA, Congress meant to "provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." Now, fourteen years after the ADA's enactment, the success of these goals is in doubt. A 1998 survey of cases brought under Title I of the ADA indicated that …

Reforming Federal Habeas Review Of Military Convictions: Why Aedpa Would Improve The Scope And Standard Of Review, John K. Chapman

Vanderbilt Law Review

The writ of habeas corpus is a collateral remedy available to prisoners who have exhausted all available appellate remedies. Habeas corpus, which literally means "to have or produce the body," involves a court order directing the custodian of a prisoner to bring the prisoner before the court in order to assess the validity of the prisoner's confinement. The importance of habeas corpus in the federal system has been recognized since the drafting of the Constitution and its historical roots trace back as far as the 12th Century in England. It is a procedure designed to protect individuals by forcing the …

A Team Production Theory Of Bankruptcy Reorganization, Lynn M. Lopucki

Vanderbilt Law Review

In the year before United Airlines filed for bankruptcy reorganization, the firm lost $3.2 billion. Fierce competition in the airline industry prevents United from stemming its losses solely through increases in revenues. Costs will have to be cut. The necessary expense reductions could come from reductions in employee pay and benefits, reductions in the amounts owing to creditors (which reduce interest expense), or both. Which should it be? United's situation is complicated by the fact that its employees own 55 percent of its stock and that their wage levels are protected by a collective bargaining agreement. But if we assume …