Law Commons^™

Maintaining The Adversarial System: The Practice Of Allowing Jurors To Question Witnesses During Trial, Kristen Debarba

Vanderbilt Law Review

A defendant sits in the witness stand undergoing examination by his attorney. He is accused of armed robbery, among other criminal acts. During the course of the defendant's testimony, a juror blurts out that he has a question. The judge tells the juror to write his question down and advises the juror that he will be able to ask his question upon completion of the attorneys' examinations. When the juror's question is finally asked, the judge indicates to the defendant's attorney that the attorney should address the matter raised by the juror on reexamination. During the reexamination, the attorney turns …

Press One For Warrant: Reinventing The Fourth Amendment's Search Warrant Requirement Through Electronic Procedures, Justin H. Smith

Vanderbilt Law Review

Numerous rulings by the Supreme Court have confirmed the long-held assertion that the Fourth Amendment's warrant requirement is a "centerpiece for the law of search and seizure, and that prescreening by neutral and detached magistrates is [at] the heart of citizens' protection against police overreaching." On September 21, 1994, however, these assertions proved inaccurate and painfully hollow for Betty Ingram, a fifty-three-year-old diabetic who awoke to the sound of armed police officers charging through her front door. The officers, who were searching for a suspect involved in a buy- and-bust operation, had neither obtained a search warrant nor knocked and …

The Marriage Of The False Claims Act And The Freedom Of Information Act: Parasitic Potential Or Positive Synergy?, James R. Moncus, Iii

Vanderbilt Law Review

The qui tam provisions of the False Claims Act ("FCA" or "the Act") allow private citizens to prosecute fraud on the government's behalf. There are at least three primary justifications for such provisions: (1) the need to provide private incentives to expose fraudulent conduct, (2) the Justice Department's unwillingness to aggressively prosecute fraud, and (3) the limited enforcement resources available to the federal government. The FCA contains a jurisdictional bar that provides that no court shall have jurisdiction over a qui tam FCA action if the information on which the action is based has been publicly disclosed. Ostensibly, this jurisdictional …

A Search For The Best Idea: Balancing The Conflicting Provisions Of The Individuals With Disabilities Education Act, Joshua A. Wolfe

Vanderbilt Law Review

One issue that is consistently at the forefront of political debate in America is the educational system. The debate over education involves funding, accountability, and curriculum issues, among others. One education issue that does not receive as much attention as some of the more politically charged issues is special education.

The goal of the American public school system is to educate all children, but how should that goal be implemented with regard to learning-disabled children? How does the educational system meet the individualized needs of disabled students while ensuring that these students are not isolated from the rest of the …

Unloved: Tort In The Modern Legal Academy, John C.P. Goldberg

Vanderbilt Law Review

In The Idea of Private Law, Ernest Weinrib makes an arresting claim. He says that private law-by which he means primarily the law of contract, restitution, and especially tort-is "just like love."'

Even members of a discipline devoted to analogies may be forgiven for not immediately perceiving the point of this one, particularly if we focus on the private law of tort. Few law students would mistake negligence, defamation, or battery for love, and if they did, their professors might be concerned for their well-being. Likewise, it is difficult to recall another law professor writing of love and tort in …

How The "Equal Opportunity" Sexual Harasser Discriminates On The Basis Of Gender Under Title Vii, Kyle F. Mothershead

Vanderbilt Law Review

Americans commonly know that federal law prohibits workplace sexual harassment. Many might be surprised to find, however, that generally courts have not found liability in the case of the so-called "equal opportunity" harasser.' A simple hypothetical will explain the nature of this peculiar species of harasser. Suppose Ken and Carol are both employed at Happyfun, Inc. as manufacturers of reindeer Christmas ornaments under the direction of their supervisor, Fred. Fred corners each of them daily and asks, "How about some sex today?" No doubt he is sexually harassing both Ken and Carol. If they sue for relief, however, a judge …

Killing The Messenger: The Misuse Of Disparate Impact Theory To Challenge High-Stakes Educational Tests, Jennifer C. Braceras

Vanderbilt Law Review

There are two basic theoretical models for addressing claims of discrimination: disparate treatment and disparate impact. The disparate treatment model attempts to expose and punish intentional discrimination; the disparate impact model seeks to eliminate policies that, while neutral on their face, disproportionately harm members of a protected class. Since 1991, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, has expressly permitted plaintiffs to challenge employment practices with a disproportionate impact on certain protected groups. By contrast, Title VI, which prohibits discrimination by federally assisted programs including most schools, does not explicitly authorize claims of …

The Disappearing Settlement: The Contractual Regulation Of Smith & Wesson Firearms, Charles C. Sipos

Vanderbilt Law Review

Consider three transactions: (1) federal legislation passed by Congress; (2) an order of judgment in a private lawsuit; and (3) a contractual arrangement between private parties. If one were asked to rank those transactions in order of the potential impact they should have on public and social policy, they would probably appear in the order that they are listed. Intuition, experience, and plain common sense might likely lead to the conclusion that legislation has the greatest impact on public policy, private agreements the least,' and final judgments in litigation somewhere in between. Democratic principles provide very good reasons for this …

Shame On You: Campaign Finance Reform Through Social Norms, Todd R. Overman

Vanderbilt Law Review

In 1998, Senator Russell Feingold squared off against Representative Mark Neumann in a heated contest for a Wisconsin Senate seat. During the campaign, Representative Neumann and Senator Feingold voluntarily entered into a number of campaign finance restrictions.' Representative Neumann, despite losing the race to Senator Feingold, asserted that those restrictions "showed that campaign finance reform didn't require changes in law and was best handled on a voluntary basis.' In the 2000 New York Senate race, Representative Rick Lazio echoed Representative Neumann's sentiment and declared that it was he and "Mrs. Clinton's opportunity, to make a statement about our commitment to …

Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman

Vanderbilt Law Review

Over half a century ago, the Puerto Rico legislature legalized casino gambling in an effort to promote tourism to the island.' To help ensure that the local population would not overindulge in this particular vice, however, the legislature at the same time provided that "[n]o gambling room shall be permitted to advertise or other- wise offer their facilities to the public of Puerto Rico."' Thirty years later a casino operator challenged the statutory advertising ban and its implementing regulations as violating the freedom of speech guaranteed by the First Amendment. Although the Superior Court of Puerto Rico agreed with the …

First Amendment Limits On Copyright, C. Edwin Baker

Vanderbilt Law Review

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and …

Assessing The Risk Of Executing The Innocent: A Case For Allowing Access To Physical Evidence For Posthumous Dna Testing, Anne-Marie Moyes

Vanderbilt Law Review

On February 5, 1985, Helen Schartner was raped and murdered on her way home from a bar in Virginia Beach. Joseph O'Dell was at the same bar that night, and fellow patrons claim he left the bar shortly after Schartner departed. Several hours later, O'Dell was seen entering a convenience store with blood on his hands, face, and clothes. O'Dell's estranged girlfriend--who had previously falsely accused O'Dell of other murders--read about Schartner's murder and called the police to report that O'Dell had left some bloody clothes in her garage. The police arrested O'Dell and charged him with the rape and …

Credit Cards And Debit Cards In The United States And Japan, Ronald J. Mann

Vanderbilt Law Review

The widespread use of cards is one of the most salient features of consumer retail payment systems in the United States. American consumers use those cards to pay for about one-fourth of their retail purchases each year.' And this is not a static phenomenon; among other things, the use of debit cards, though still relatively small, is rising rapidly. That pattern of use is not, however, typical of other countries. Even in some highly industrialized nations, consumers use cards to pay for purchases much less frequently. Statistics from the Bank for International Settlements, for example, suggest about sixty card-based payment …

"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman

Vanderbilt Law Review

Charitable choice, or the use of federal money to fund social services provided by religious organizations, has engendered controversy and confusion since its inception in the 1996 welfare reform legislation. Under the welfare reform statute, entitled the Personal Responsibility and Work Opportunity Reconciliation Act ("PRA"), states may contract out administration of their welfare programs to private entities, including houses of worship. President Bush is promoting the expansion of charitable choice into other federal social service programs as a major policy initiative of his administration. Federal funding of faith-based organizations has supporters and opponents on both the left and the right. …

Not Without My Father: The Legal Status Of The Posthumously Conceived Child, Christopher A. Scharman

Vanderbilt Law Review

Twins Amanda and Elyse were born to William and Mariantonia Kolacy of New Jersey on November 3, 1996. At this ordinarily joyous occasion, only Mariantonia was able to welcome the two girls into the world; their father, William, had passed away some eighteen months before their birth-nearly a year before the girls were conceived.

When William and Mariantonia were a young married couple, doctors diagnosed William with leukemia and advised him to begin chemotherapy immediately. Fearing the treatment or the disease would render him sterile, William preserved some of his sperm for later use. Regrettably, William did not survive the …

Immunizing Internet Service Providers From Third-Party Internet Defamation Claims: How Far Should Courts Go?, Sewali K. Patel

Vanderbilt Law Review

On April 25, 1995, a notice titled "Naughty Oklahoma T- shirts" appeared on an America Online ("AOL") bulletin board. The notice advertised T-shirts with slogans such as "Visit Oklahoma... It's a BLAST!" and "Putting the kids to bed ... Oklahoma 1995." In short, the notice glorified the Oklahoma City bombings of 1995, which killed 168 people. Under the only known identity of "Ken ZZ03," the author invited readers to call "Ken" at the listed phone number, which belonged to a Mr. Kenneth Zeran. While Mr. Zeran's first name was in fact Ken, Mr. Zeran was not responsible for posting the …

Haste Makes Waste: Congress And The Common Law In Cyberspace, Suzanna Sherry

Vanderbilt Law Review

Speed is an asset in computer technology, but not necessarily in law. The new technologies of the twentieth and twenty-first centuries have inevitably raised new legal questions; all too often, the response to these new legal challenges is a hastily enacted federal statute. If the Internet allows children access to pornography, we enact the Communications Decency Act ("CDA"). Commercial concerns about cyber-authenticity prompt the Electronic Signatures in Global and National Commerce Act ("E-SIGN"). Are cybersquatters creating domain name problems? We've got a law for that, too. These are just a few of the quick fixes driven by a perceived need …

Regulating Federal Prosecutors' Ethics, Bruce A. Green, Fred C. Zacharias

Vanderbilt Law Review

To what extent should federal prosecutors be regulated by states, by federal courts, or by the U.S. Department of Justice ("DOJ) as a matter of self-regulation? This Article concludes that, subject to congressional oversight, federal courts should have the ultimate authority to regulate federal prosecutors. However, it also acknowledges the legitimacy of competing claims by the states and DOJ. Sometimes, federal courts should defer to state court regulation, given traditional state regulation of the practice of law and a host of practical considerations. At other times, federal prosecutors have compelling reasons to seek freedom from both state regulation and regulation …

Perceived Disabilities, Social Cognition, And "Innocent Mistakes", Michelle A. Travis

Vanderbilt Law Review

Employment discrimination takes many more forms than the current models in our antidiscrimination laws explicitly recognize. As new forms of employment discrimination are identified, courts must decide whether or not to apply our existing statutes, which many continue to believe were narrowly constructed to focus primarily on conscious acts of prejudice. Litigants have had more success challenging that notion with respect to Title I of the Americans with Disabilities Act of 1990 (the "ADA"), because Congress was relatively clearer about the multifaceted nature of disability discrimination. Legislators openly acknowledged that disability discrimination may result not only from invidious animus, but …

Law On The Rocks: The Intoxication Defenses Are Being Eighty-Sixed, Meghan P. Ingle

Vanderbilt Law Review

The ever-controversial voluntary intoxication defense faces possible elimination by statutory abrogation. Originally developed by nineteenth-century common law courts, the defense recognizes that an intoxicated defendant may be incapable of possessing the mens rea specified by an offense. Increasingly criticized in recent years, the defense received a substantial blow to its continued vitality in the 1996 Supreme Court decision Montana v. Egelhoff. In a sharply divided opinion," a plurality of the Court held that a defendant does not possess a constitutional right to present evidence of voluntary intoxication in his defense. The Egelhoff decision has caused much commentary, both positive and …

Assisting Minors Seeking Abortions In Judicial Bypass Proceedings: A Guardian Ad Litem Is No Substitute For An Attorney, Elizabeth S. Graybill

Vanderbilt Law Review

Since the 1973 decision in Roe v. Wade,' minors have been particularly affected by the efforts of pro-life activists and state legislatures who have curtailed abortion rights by lobbying for and passing legislation that restricts reproductive freedom. Forty-three states have enacted laws requiring a minor either to obtain consent from or to notify one or both parents before undergoing an abortion, and thirty-three of these statutes are currently enforceable. The Supreme Court has recognized the right of parents to be involved in a child's upbringing and the prerogative of the state to limit a minor's freedom to make major life …

Proving An Employer's Intent: Disparate Treatment Discrimination And The Stray Remarks Doctrine After Reeves V. Sanderson Plumbing Products, Laina R. Reinsmith

Vanderbilt Law Review

Throughout the development of employment discrimination law, the United States Supreme Court has wrestled with the task of producing a suitable analytical framework, under which plaintiffs can attempt to prove their cases of disparate treatment by their employers. An element of this task has been determining which types of evidence of discriminatory intent have probative value, and what effect that evidence should have on plaintiffs' and defendants' cases. In June 2000, the Supreme Court decided Reeves v. Sander- son Plumbing Products,' a case involving a disparate treatment claim brought by an employee alleging age discrimination by his employer in violation …

Trial Rights And Psychotropic Drugs: The Case Against Administering Involuntary Medications To A Defendant During Trial, Dora W. Klein

Vanderbilt Law Review

The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. Those who have experienced the full thrust of the power of government when leveled against them know that the only protection the citizen has is in the requirement for a fair trial. [I]nvoluntary medication with antipsychotic drugs poses a serious threat to a defendant's right to a fair trial. On July 24, 1998, Russell Weston shot and killed two police officers, and wounded a third, near a security checkpoint in the United States …

Fmla Notice Requirements And The Chevron Test: Maintaining A Hard-Fought Balance, Shay E. Zeemer

Vanderbilt Law Review

The Family and Medical Leave Act of 1993 ("FMLA" or "the Act"), an act that extends twelve weeks leave to employees for certain medical and family situations, seemed like a panacea for the everyday battles employees face in balancing work and family needs.' At last, the Act's supporters thought, an employee can take time off to care for a loved one, or have a child, and return to find his or her job intact. In the eight years since its enactment, how- ever, the FMLA finds employees and employers alike disillusioned, uncertain about rights and obligations, and still fighting to …

Why A Board? Group Decisionmaking In Corporate Governance, Stephen M. Bainbridge

Vanderbilt Law Review

This Article begins by briefly describing the role of the board both in law and in practice. Part II explores the distinction be- tween consensus and authority as modes of institutional decision- making. As hierarchical institutions, corporations rely far more heavily on authority than on consensus. Yet, at the apex of the hierarchy is a collegial body that functions mainly by consensus.

Part III is the core of the Article. In order to evaluate corporate law's preference for collective decisionmaking, we need to know whether group decisionmaking is superior to that of individuals. A wealth of experimental data suggests that …

Citation And Representation, Alex Glashausser

Vanderbilt Law Review

A war is raging in the legal citation field. Arbitrary changes in the Bluebook from one edition to the next have incited a populist rebellion in the form of the Association of Legal Writing Directors' ALWD Citation Manual. This Article traces the causes of the conflict and assesses its likely outcomes. Professor Glashausser compares the two citation guides to eighteenth- century Great Britain and America: the Bluebook is the elite empire clinging to its position, and the Manual is the challenger hoping to ride a wave of populism to revolution. Overall, Professor Glashausser's Article sides with the Manual as the …

Theology In The Jury Room: Religious Discussion As "Extraneous Material" In The Course Of Capital Punishment Deliberations, Gregory M. Ashley

Vanderbilt Law Review

"Why would a God concerned about justice in a matter of life and death be willing to delegate an absolute power over life and death to such fallible and morally benighted creatures?'"

In the landmark Furman v. Georgia decision, Justice Brennan likened capital punishment to a mere game of chance: "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." Although Brennan's argument in Furman focused primarily on disparities …

The Wine Is In The Mail: The Twenty-First Amendment And State Laws Against The Direct Shipment Of Alcoholic Beverages, Russ Miller

Vanderbilt Law Review

The Internet has revolutionized commerce by providing an easy way for businesses to reach vast numbers of customers, and by allowing consumers to attain products of all sorts with the mere click of a mouse. Some wine consumers, however, feel left behind by the Internet revolution. State laws against the direct shipment of alcohol leave them frustrated because they cannot purchase wine online and have it shipped to their homes. These laws against direct shipment have attracted a significant amount of attention in the news media, and they have recently been challenged in a number of federal courts.

To understand …

An Arrow To The Heart: The Love And Death Of Postmodern Legal Scholarship, Stephen M. Feldman

Vanderbilt Law Review

Modernist legal writers, including Dennis Arrow in his well-known Pomobabble article, commonly criticize postmodern legal scholars for being muddle-headed nihilistic thinkers who write indecipherable jargon-filled nonsense and lack political convictions. Professor Feldman responds to these and other related criticisms and, in doing so, explains some key components of postmodernism. For instance, he describes how the pervasiveness of postmodern culture infuses legal scholarship with certain postmodern themes. Ironically, then, even the most vehement critics, like Arrow, display a surprising if unwitting affinity for postmodernism. Finally, in order to deflect precipitate denunciations of postmodernism, Professor Feldman suggests a refinement of terms, dividing …

Are Shaming Punishments Beautifully Retributive? Retributivism And The Implications For The Alternative Sanctions Debate, Dan Markel

Vanderbilt Law Review

In the last few years, scholars and policymakers in the area of criminal justice have focused an increasing amount of attention on two topics. The first is the retributivist theory of punishment ("retributivism");' the second is the development of alternative sanctions to the orthodoxy of incarcerating criminals in publicly managed prisons. This Article is about what connections may properly be drawn between what justifies punishment and how we actually go about punishing offenders.

A preliminary word on retributivism may be helpful. Retributivism is a theory about retribution, and retribution's features, or its definition, may be understood in either a weak …