Law Commons^™

"Accommodations" For The Learning Disabled: A Level Playing Field Or Affirmative Action For Elites?, Craig S. Lerner

Vanderbilt Law Review

A growing number of students in American higher education are being diagnosed as "learning disabled" and then using that diagnosis to secure beneficial "accommodations," such as extra time on exams. These accommodations are often said to be mandated by the Americans with Disabilities Act (ADA). This Article challenges the premise that the ADA necessarily requires educational institutions to provide learning disabled students with any accommodations. The ADA defines "disability" as an impairment that substantially limits a major life activity. Whether one is substantially limited is determined with reference not to one's innate abilities, but to the skills of the average …

Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law Review

The Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), has prompted renewed interest in sentencing by jury in non-capital cases. Yet jury sentencing in felony cases remains one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states-Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window …

Accommodating Technological Innovation: Identity, Genetic Testing And The Internet, Gaia Bernstein

Vanderbilt Law Review

To evaluate the need for legal change stemming from technological innovation, we need to look beyond the accommodations of specific rules to the impact of technological innovation on social structures, institutes and values. In this Article I study how social tensions created by recent technological innovations produce a need to elevate legal interest from the shadows of legal discourse into the forefront of legal debate. Specifically, I examine two innovations that are exerting significant influence on our lives-genetic testing and the Internet-and their impact on our normative conception of identity. This socially oriented approach leads to several insights.

First, I …

Federalism And Drug Control, Michael M. O'Hear

Vanderbilt Law Review

Federalism issues have been neglected in the scholarship on drug control policy. This Article addresses both empirical and normative questions relating to federal-state-local relations in the "war on drugs." Contrary to common views of federal domination and national uniformity, drug control policy actually varies considerably from state to state. State diversity has increased since the mid- 1990s, when drug reformers began to use the ballot initiative to change state laws. While the federal government has contested these reforms, it has not sought to use its preemption powers to enforce federal preferences.

The Article employs public choice models to explain the …

Bucking The Trend: The Unsupportability Of Index Providers' Imposition Of Licensing Fees For Unlisted Trading Of Exchange Traded Funds, Peter N. Hall

Vanderbilt Law Review

Exchange traded funds (ETFs) are popular investment products that have recently generated substantial investment press, several new regulations, huge earnings for the securities markets, and potential legal conflicts that will likely lead to major litigation. ETFs are derivative securities that represent ownership in funds, unit investment trusts, or depositary receipts with portfolios of securities designed to track the performance and dividends of specific securities indices.' ETFs track indices by holding a representative sampling of securities in the index, thus approximating investment results of the index as a whole. They may or may not hold all the stocks in a particular …

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Vanderbilt Law Review

"A cardinal principle in dealing with every type of legal arrangement is to keep steadily in view the kinds of people to whom the directions of the arrangement in question are initially addressed-who the people are, in other words, who are expected to act or refrain from acting in accordance with the arrangement if it works successfully, and under what circumstances they are expected to act."

If asked to envision a polluter, most of us would describe a tall stack from a large industrial facility billowing smoke or a pipe releasing foaming liquid into a stream. The environmental laws and …

Beyond "Unlimiting" Shareholder Liability: Vicarious Tort Liability For Corporate Officers, Timothy P. Glynn

Vanderbilt Law Review

Debate continues to rage over limited shareholder liability and the social costs it imposes.' While proposals flourish for imposing liability on shareholders to reduce these costs, little attention has been devoted to a more promising solution: vicarious tort liability for high- ranking corporate officers. Limited shareholder liability produces benefits, but it also inflicts costs, including encouraging excessively risky corporate activity. These costs are most pronounced in the tort context because potential tort victims rarely can protect themselves by monitoring corporate activities or bargaining with corporate actors. Commentators disagree on limited shareholder liability's net impact on social utility and what, if …

Single-Sex Classes In Public Secondary Schools: Maximizing The Value Of A Public Education For The Nation's Students, Ashley E. Johnson

Vanderbilt Law Review

Throughout the United States, school districts are struggling to educate their students in the face of drug problems, violence, and deteriorated home situations that permeate the lives of large numbers of today's teenagers. Many parents likewise face a daunting battle in helping their children attain an education that will enable those children to move beyond what their parents achieved financially. Additionally, recent economic downturns mean states have even less money to spend on education, forcing the quality of education in some already inadequate schools to fall further. Meanwhile, studies show that American children have fallen behind many of their foreign …

Appellate Courts, Historical Facts, And The Civil-Criminal Distinction, Chad M. Oldfather

Vanderbilt Law Review

Among the pieties of our legal system is the notion that appellate courts do not engage in factual evaluation. Murky though the distinction between "fact" and "law" may be,' there is general agreement that somewhere along the fact-law spectrum lies a point beyond which appellate courts ought not venture. Past it exist questions of "historical fact," the "who, when, what, and where" series of questions that we have deemed only juries or trial judges to be capable of answering.

Just as well accepted is the reasoning behind this juridical line in the sand. Simply put, we believe that appellate courts …

"No Provincial Or Transient Notion": The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich

Vanderbilt Law Review

Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat. Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman …

Sovereign Debt Reform And The Best Interest Of Creditors, William W. Bratton, G. Mitu Gulati

Vanderbilt Law Review

This Article is about boilerplate language located at the back of contracts drafted by the world's largest law firms. The clauses in question are process provisions that regulate the amendment of sovereign debt contracts. These paragraphs have been drafted and redrafted by generations of corporate lawyers, yet they have changed little in their broad outlines in more than a century of use. Now they take center stage in the global financial arena, where they govern billions of dollars (and pounds, euros, and yen) of sovereign debt in default and billions more in imminent risk of default. Officials, academics, and even …

Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals That Some Federal Courts Manipulate Standing Rules To Promulgate Severe First Amendment Restrictions On The Spouses And Children Of Public Employees, Nicholas R. Farrell

Vanderbilt Law Review

Federal courts in the United States have consistently upheld the constitutional doctrine that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." Given the central role of government workers in maintaining that order, the First Amendment rights of public employees have been particularly susceptible to restriction. For example, in 1940, Congress enacted the Hatch Act, which declared unlawful certain political activities of federal employees. Specifically, section nine of the Act prohibited officers and employees in the executive branch …

The Misappropriation Of Trust Fund Taxes Under The Guise Of Reasonable Cause, P. Prestin Weidner

Vanderbilt Law Review

Employers are generally required to withhold income, Social Security, and Medicare taxes from their employees' paychecks. Employers hold these taxes "in trust" until they are deposited or otherwise paid over to the government. Since one of the most common problems faced by owners and managers of businesses is the lack of adequate cash to satisfy their numerous immediate obligations, this system creates a temptation for the employer to use the withheld funds to cover its costs. Short-term bank loans are often either unavailable or unaffordable, and the employer's own debtors may be unable to pay or not yet obligated to …

Insurance Triggers As Judicial Gatekeepers In Toxic Mold Litigation, Gregory A. Goodman

Vanderbilt Law Review

At the dawn of the 21st century, a new plague is leeching across the nation's legal landscape. "Some call it the Perfect Storm-a confluence of events that merged into a financial crisis for the insurance industry and a politically charged catastrophe for... homeowners, threatening disaster for the.., economy." What exactly is this Perfect Storm quickly overwhelming both the legislative and judicial systems? Mold. Not the harmless mold growing in a neglected bathtub, but toxic mold that can ravage homes and other buildings from the inside out, while allegedly causing the inhabitants to suffer nasty fates. Mold destroying dwellings is nothing …

The Business Judgment Rule As Abstention Doctrine, Stephen M. Bainbridge

Vanderbilt Law Review

The business judgment rule is corporate law's central doctrine, pervasively affecting the roles of directors, officers, and controlling shareholders. Increasingly, moreover, versions of the business judgment rule are found in the law governing the other types of business organizations, ranging from such common forms as the general partnership to such unusual ones as the reciprocal insurance exchange. Yet, curiously, there is relatively little agreement as to either the theoretical underpinnings of or policy justification for the rule. This gap in our understanding has important doctrinal implications. As this paper demonstrates, a string of recent decisions by the Delaware supreme court …

The New Look Of Shareholder Litigation: Acquisition-Oriented Class Actions, Robert B. Thompson, Randall S. Thomas

Vanderbilt Law Review

Now, however, a new form of shareholder litigation has emerged that is distinct from derivative or securities fraud claims: class action lawsuits filed under state law challenging director conduct in mergers and acquisitions. The empirical data reported in this article show that these acquisition-oriented suits are now the dominant form of corporate litigation and outnumber derivative suits by a wide margin.

Are these acquisition-oriented class actions just another deadbeat in the corporate governance debate? Should policymakers take action to cut back on the development of this new form of shareholder litigation? In this paper, we argue that, just as with …

Tendencies Versus Boundaries: Levels Of Generality In Behavioral Law And Economics, Gregory Mitchell

Vanderbilt Law Review

When evidence on the truth or falsity of a proposition is ambiguous and open to multiple interpretations, psychologists warn about "biased assimilation" of the evidence to support pre-existing theories, beliefs, and attitudes. Therefore, when a skeptic about the public policy implications of psychological research examines the complex mix of evidence on human rationality, he may find much to support his skepticism about the use of psychology to reform the law. Likewise, an optimist about the public policy contributions of psychology may find within this same body of evidence much to bolster his optimistic view that psychological research can be used …

Chicago Man, K-T Man, And The Future Of Behavioral Law And Economics, Robert A. Prentice

Vanderbilt Law Review

Most law is aimed at shaping human behavior, encouraging that which is good for society and discouraging that which is bad.' Nonetheless, for most of the history of our legal system, laws were passed, cases were decided, and academics pontificated about the law based on nothing more than common sense assumptions about how people make decisions. A quarter century or more ago, the law and economics movement replaced these common sense assumptions with a well-considered and expressly stated assumption-that man is a rational maximizer of his expected utilities. Based on this premise, law and economics has dominated interdisciplinary thought in …

Unfit To Serve: Permanently Barring People From Serving As Officers And Directors Of Publicly Traded Companies After The Sarbanes-Oxley Act, Philip F.S. Berg

Vanderbilt Law Review

On June 4, 2003, lifestyle guru Martha Stewart was indicted on multiple criminal and civil charges by the Securities and Exchange Commission (SEC or Commission). The charges, including obstruction of justice and civil insider trading, stemmed from Stewart's sale of ImClone stock shortly before the Food and Drug Administration rejected a drug produced by ImClone and sent the company's stock price tumbling. Although Stewart could face a number of serious penalties under her criminal indictment, the primary remedy sought by the SEC for her civil insider trading charges is rather uncommon-a bar from serving as a director of Martha Stewart …

Lowering The Filed Tariff Shield: Judicial Enforcement For A Deregulatory Era, Jim Rossi

Vanderbilt Law Review

The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims.

This Article assesses how …

War And American Constitutional Order, Mark E. Brandon

Vanderbilt Law Review

In their introduction to a fine new edition of Alexis de Tocqueville's Democracy in America, Harvey C. Mansfield and Delba Winthrop claim that "[i]f the twentieth century has been an American century, it is because the work of America... has been to keep democracy strong where it is alive and to promote it where it is weak or nonexistent." By "democracy" they doubtless intend something akin to "constitutional democracy," "liberal democracy," or "republican government." I take each of these to be a rough proxy for a constitutionalist system that includes (1) institutions authorized by and accountable to the people (both …

When One Parent Goes And The Other Parent Stays: The Inconsistency And Inequity Of Guaranteeing Absent Parents Permanent Parental Rights, Wendee M. Hilderbrand

Vanderbilt Law Review

It is well settled that the right to make decisions concerning the upbringing of one's children is a fundamental right deserving the utmost constitutional protection from unreasonable state interference. It has also become increasingly well settled over the past twenty-five years that this right is not automatically and permanently guaranteed by biology. Rather, parental stature encompasses both "rights and responsibilities," and the rights are only guaranteed to a parent who has assumed parental responsibilities. Why then is a responsible custodial parent subject to state interference with his or her parental decisions in the interest of guaranteeing an absent parent, who …

Makes Sense To Me: How Moderate, Targeted Federal Tort Reform Legislation Could Solve The Nation's Asbestos Litigation Crisis, Mark H. Reeves

Vanderbilt Law Review

During the three decades he spent working as a machinist for the United States Navy, Henry Plummer suffered continuous exposure to the asbestos used in the insulation, gaskets and pipe coverings of warships. In late 1999, a biopsy confirmed that he had developed mesothelioma, a gruesome type of cancer that kills all those who contract it and is caused only by asbestos. In an effort to combat his cancer, Mr. Plummer embarked on a long, painful course of treatments that included chemotherapy and the removal of his left lung in April 2000. In early 2001, however, Mr. Plummer's doctor informed …

Fetal Surgery And Wrongful Death Actions On Behalf Of The Unborn: An Argument For A Social Standard, Jonathan D. Stanley

Vanderbilt Law Review

Imagine a young couple in the not-too-distant-future who are eagerly awaiting the birth of their first child. During the eighteenth week of the pregnancy, the mother has an ultrasound performed to detect possible developmental problems with the child. To their dismay, the ultrasound reveals a malformation in the fetus. The defect will not be fatal, but if left untreated will cause the child severe breathing problems once born. The problem can be fixed with surgery after birth, but such a procedure will result in disfiguring facial scars. After thoroughly considering their options, which range from an abortion to carrying the …

Fundamental Retribution Error: Criminal Justice And The Social Psychology Of Blame, Donald A. Dripps

Vanderbilt Law Review

At least since the M'Naghten case of the 1840s,' Anglo- American criminal law has concerned itself closely, famously, and contentiously with the psychology of the accused. Another significant body of scholarship addresses the psychology of juries, and other valuable research has approached some of the rules of criminal evidence from the perspective of social and cognitive psychology. There has, however, yet to be a general investigation of what social cognition research might teach us about the criminal law's pervasive concern with blameworthiness.

This Article undertakes that investigation. It brings research on the psychology of social cognition to bear on the …

Two Wrongs Don't Make A Right: Medicaid, Section 1983 And The Cost Of An Enforceable Right To Health Care, Mark A. Ison

Vanderbilt Law Review

More than a trillion dollars annually is spent on the health care system .... Despite increases in medical care spending that are greater than the rate of inflation, population growth, and Gross Domestic Product growth, there has not been a commensurate improvement in our health status as a nation .... Despite our Nation's wealth, the health care system does not provide coverage to all Americans who want it. These words capture both the essence of America's public health care dilemma and the frustration felt by many of the lawmakers charged with the duty to solve it. The battle to lower …

Resuscitating The National Resident Matching Program: Improving Medical Resident Placement Through Binding Dual Matching, Melinda Creasman

Vanderbilt Law Review

People outside the medical profession have likely heard of the long hours that doctors keep, but are probably unaware of the low salaries and nonnegotiable contracts that medical school graduates must accept upon entering a residency program. In fact, young doctors are among the few professionals who do not find postgraduate employment in the open job market. Currently, fourth-year medical students seeking postgraduate residency training participate in a process that matches them to a single residency program. This match dictates where the new doctor will spend the next three to seven years of her career. Upon receiving a match, the …

Federal Court Authority To Regulate Lawyers: A Practice In Search Of A Theory Of A, Fred C. Zacharias, Bruce A. Green

Vanderbilt Law Review

Federal courts regulate lawyers, including federal prosecutors, by enforcing various constitutional, statutory, and other legal constraints. Federal courts also adopt and enforce their own disciplinary rules pursuant to rule-making authority delegated by Congress. To what extent, however, do federal courts have independent power, in the absence of an explicit grant of authority, to regulate private lawyers and federal prosecutors? Although lower federal courts have long exercised power both to define and to sanction professional misconduct, the United States Supreme Court has never clarified the source and scope of this authority.

This issue is important for two reasons. First, most federal …

The Cloudy Crystal Ball: Genetics, Child Abuse, And The Perils Of Predicting Behavior, Robert D. Stone

Vanderbilt Law Review

In the cinematic world of Minority Report, mankind stands on the brink of a society without murder. Police can see the future, predicting murders and arresting perpetrators before they act. This utopian system is the ultimate evolution in preventative policing because it offers perfect prediction; it does not show what people intend to do, only what they will do. Society accepts the incarceration of pre-murderers, people who have committed no crimes, because there is no such thing as the "wrongfully accused.' Is the ability to predict behavior only science fiction, or can a combination of genetic and environmental factors actually …

Public Independent Fact-Finding: A Trust-Generating Institution For An Age Of Corporate Illegitimacy And Public Mistrust, R. William Ide Iii, Douglas H. Yarn

Vanderbilt Law Review

Public distrust in the wake of corporate scandals caused corporate legitimacy crises for the companies involved and for the marketplace as a whole. The loss of trust has contributed to an environment in which traditional responses to allegations of wrongdoing and incompetence are less effective. Alternatively, organizations engage in "Public independent fact-finding" ("PIFF") by hiring public figures with reputations for integrity to conduct internal investigations and to report their findings to the public. This Article describes the role played by trust, reputation, and social legitimacy in the health of organizations and examines corporate legitimacy crises and traditional responses. Identifying factors …