Law Commons^™

Original Intent, The View Of The Framers, And The Role Of The Ratifiers, Ronald D. Rotunda

Vanderbilt Law Review

For much of its history, the Supreme Court has purported to engage in what is called "interpretive" judicial review. Interpretive review occurs when the Court ...

"ascertains the constitutionality of a given policy choice by reference to one of the value judgments of which the Constitution consists-that is, by reference to a value judgment embodied, though not necessarily explicitly, either in some particular provision of the text of the Constitution or in the overall structure of government ordained by the Constitution."

Justice William Brennan, for example, engaged in interpretive review when he argued in his recent Holmes Lecture that the …

The Viability Of Distinguishing Between Mandatory And Permissive Subjects Of Bargaining In A Cooperative Setting: In Search Of Industrial Peace, Thomas T. Crouch

Vanderbilt Law Review

In July 1985 General Motors entered into an agreement with the United Auto Workers (UAW) setting forth the terms and conditions of a future automobile facility, known as the Saturn Corporation, in Spring Hill, Tennessee. General Motors and the UAW view this project as an unprecedented achievement in "union-management partnership." The goal of the Saturn project is to maintain General Motors'viability as a domestic enterprise through an agreement to build a new subcompact car in the United States. This partnership between the corporation and the UAW will include employee participation and enhanced job security. Faced with mounting competition from overseas …

Chevron And Its Aftermath: Judicial Review Of Agency Interpretations Of Statutory Provisions, Richard J. Pierce, Jr.

Vanderbilt Law Review

In its 1984 opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,' the Supreme Court attempted to resolve the long standing conflict concerning the proper scope of judicial review of agency interpretations of statutory provisions. Chevron concerned the Environmental Protection Agency's (EPA) interpretation of the Clean Air Act, which requires the EPA to limit emissions from all "stationary sources." The EPA interpreted the statutory term "stationary source"to mean an entire plant, rather than an individual piece of combustion equipment. That statutory interpretation was adopted as part of the EPA's "bubble concept," which is based on the EPA's belief …

Management Buyouts: Creating Or Appropriating Shareholder Wealth?, Dale A. Oesterle, Jon R. Norberg

Vanderbilt Law Review

The name of the game in corporate America today is leverage.Whether through leveraged buyouts' or leveraged recapitalizations, many of the United States' largest corporations are rapidly trading equity capital for debt.' This trend began only a few years ago when a small group of financial entrepreneurs, which included Carl Icahn, T.Boone Pickens, Asher Edelman,' Irwin Jacobs, and Ronald Perelman,"found that they could finance large stock purchases of major corporations through the use of high-yield ("junk") bonds' leading to either an acquisition of the target or its forced restructuring. The general goal of these financiers was to force a reconciliation between …

Growing Disenchantment With Hypnotic Means Of Refreshing Witness Recall, Michael J. Beaudine

Vanderbilt Law Review

Society has developed several uses for the psychological phenomenon known as hypnosis.' These uses, mostly medical in nature, include substituting for anesthesia and treating pain, anxiety, phobias, and allergies. Not surprisingly, some professional athletes have turned to hypnosis for better success on the playing field. While the scientific and medical communities generally have accepted these uses, controversy has arisen over the use of hypnosis in legal proceedings to refresh the memory of a witness who testifies later in court. The use of hypnosis for investigating crimes began in the early 1970s when law enforcement agencies and police departments formed the …

Continuation Of The Affiliated Group Subsequent To A Divisive Reorganization: A Patchwork Of Inconsistent Rules With Uncertain Application, Matthew B. Krasner

Vanderbilt Law Review

Corporations comprising an affiliated group may elect to file a consolidated tax return. However, once such an election is made, the affiliated group may not discontinue such filing in subsequent years with out the prior consent of the Commissioner of the Internal Revenue Service(IRS).' The continuous filing requirement is necessary to prevent the abuses that would occur if corporations within an affiliated group could choose whether to file separate returns or a consolidated return for a given year. A complex set of regulations specify under what circumstances the Commissioner will consider an affiliated group as continuing in existence so as …

Expert Testimony On Proximate Cause, Daniel J. Steinbeck, William M. Richman, Douglas E. Ray

Vanderbilt Law Review

Expert testimony is common in tort litigation, especially on issues of standard of care and cause-in-fact. Rule 704 of the Federal Rules of Evidence and its state counterparts abolished the prohibition of testimony on ultimate issues, leading to the possibility of expert testimony on the often crucial issue of proximate cause. The situation is easy to imagine. After counsel has qualified an expert witness and elicited an opinion that the particular act or omission "caused" the injury in question, counsel might very well be tempted to inquire whether the witness has an opinion as to whether the act or omission …

Privatization Of Corrections: Is The State Out On A Limb When The Company Goes Bankrupt?, Cathy E. Holley

Vanderbilt Law Review

The incarceration of convicted criminals is an important matter to law enforcement officials and the public at large. Institutional correctional services consume significant governmental energy and resources. In 1983 corrections, including jails, prisons, probation, and parole, cost over 10.4 billion dollars. In 1985 approximately 503,000 people were imprisoned in federal and state correctional facilities.' The provision of prison services must occur on a continuous basis, and space must be available for every convicted criminal. As certain commentators have noted, "[o]ne cannot simply let offenders wait in line for an opening."'Historically, local, state, and federal government has overseen and operated our …

The Intended Application Of Federal Rule Of Civil Procedure 11: An End To The "Empty Head, Pure Heart"Defense And A Reinforcement Of Ethical Standards, Debbie A. Wilson

Vanderbilt Law Review

The American public has long viewed the legal profession with a puzzling mixture of respect and envy tempered by distaste and mistrust.' Nevertheless, Americans especially are amenable to invoking judicial processes when a wrong is perceived.' This tendency has led to the well-publicized problems of overcrowded dockets and lengthy trial proceedings, both of which contribute to making the American legal system the most expensive in the world. Commentators, the legal community, and other citizens increasingly criticize the litigiousness of the American legal system. The legal profession generally is exempt from governmental regulation because the bar adopts and enforces its own …

Rethinking The Judicial Reception Of Legislative Facts, Ann Woolhandler

Vanderbilt Law Review

In a recent article, Professor Peggy Davis called for reforms in judicial reception of legislative facts. Her suggestions, which follow an empirical analysis of the use of psychological parent theories in child custody disputes, echo similar proposals by Professor Kenneth Karst in 1960s and by Professors Arthur Miller and Jerome Barron in 1975 for judicial reception of legislative facts in constitutional cases.As originally defined by Kenneth Culp Davis, legislative facts are facts that "inform[] a court's legislative judgment on questions of law and policy." They contrast with adjudicative facts, which are facts about "what the parties did, what the circumstances …

Motivation And Tort Law: Acting For Economic Gain As A Suspect Motive, Martin A. Kotler

Vanderbilt Law Review

The asserted unimportance of the defendant's motive underlying acts giving rise to tort liability is part of the conventional wisdom of most writers of basic tort texts.' Frequently, the irrelevance of the defendant's motivation is considered so obvious that many writers fail to discuss it at all, or discuss it only in the limited context of punitive damages. Virtually all of the literature that considers the significance of motive in tort law deals with either altruism, primarily in the rescue context, or spite, primarily in the punitive damages context. However,little, if any, of the literature considers the legal treatment of …

Trends In First Amendment Protection Of Commercial Speech, Mary B. Nutt

Vanderbilt Law Review

Recent Development:

The first amendment guarantees that "Congress shall make no law... abridging the freedom of speech or of the press."' Over the past few decades, the Supreme Court has applied the first amendment to commercial speech only sporadically. The Court has vacillated between refusing to apply the first amendment, liberally extending first amendment guarantees,4 and applying limited first amendment protections to commercial speech.' This expansion and contraction of first amendment protection stems partly from three factors: (1) the Court's characterization of the speech at issue as commercial or noncommercial, (2) the Court's perception of the relevant regulation as content-based …

Bailor Beware: Limitations And Exclusions Of Liability In Commercial Bailments, A. Darby Dickerson

Vanderbilt Law Review

Although people enter into bailment agreements every day, the diversity and significance of bailments generally are unknown to lay persons and ignored by lawyers. This neglect stems in part from the antiquity of bailment and from its overlap with other branches of the law.' One commentator has stated that "bailment stands at the point at which contract, tort, and property law converge," representing a contractual conveyance of personal property that is enforceable in tort. Although bailment draws from other areas of the law, it retains a separate legal personality whose independent character has yet to be fully explored.The term "bailment," …

Defining "Support" Under Bankruptcy Law: Revitalization Of The "Necessaries" Doctrine, Sheryl L. Scheible

Vanderbilt Law Review

In recognition of the social reality that marriage often does not last forever, divorce law in the United States has undergone radical changes in the past few decades.' All states have relaxed restrictions on divorce by adopting some form of no-fault divorce grounds. In addition, recent developments have facilitated the termination of a married couple's relationship in economic terms as well. For instance, states today are less inclined to consider the role of marital fault in the settlement of the financial incidents of divorce, and encourage divorcing couples to end their marriages by negotiation and contract in order to minimize …