Law Commons^™

Asbestos In Schools: The Asbestos Hazard Emergency Response Act And School Asbestos Litigation, James C. Stanley

Vanderbilt Law Review

Over a decade has passed since the Environmental Protection Agency (EPA) first identified asbestos as a health threat to the nation's school children in 1978. The concern over asbestos in schools prompted numerous responses to this problem, including legislative solutions, litigation, and the birth of a new industry to inspect, control, and abate the hazard. The results have been mixed at best. School officials, legislators, and legal commentators have criticized much of the legislation as ineffective; the litigation has added cases to a legal docket already overburdened by personal injury suits brought by individuals against asbestos manufacturers and liability insurance …

The Protection Of Groundwater And Public Drinking Supplies: Recent Trends In Litigation And Legislation, Pamela King

Vanderbilt Law Review

Although groundwater is one of our most vital natural resources, it is perhaps the least protected. Over half of the total United States population-nearly 117 million people-depends on groundwater reservoirs, or aquifers, as its source of drinking water. Industry looks to groundwater for twenty-six percent of its water needs, and two-thirds of all groundwater is used in agriculture. In addition, groundwater reenters oceans, lakes, and rivers to supply nearly one-third of the flow of surface water in the United States.

Presently, underground water sources are contaminated in all fifty states. This pollution is the by-product of a vast array of …

1988 Amendment To 26 U.S.C. Section 7430: Expanding Taxpayers' Rights To Recover Costs In Tax Controversies, Debra A. Chini

Vanderbilt Law Review

Bureaucratic mistakes at the Internal Revenue Service (IRS) forced Barbara and David Kaufman to seek a court-ordered injunction prohibiting the IRS from collecting a 14,380 dollar tax assessment for 1980. Even though the Kaufmans had notified the IRS office in Chicago of their new Maine address, the IRS mistakenly mailed the preliminary notice of deficiency to the Kaufmans' prior Illinois address. In addition, the Service mailed the statutory notice of deficiency to another couple also named Barbara and David Kaufman.' Because the Kaufmans never received notice of the proposed deficiency, they did not have an opportunity to contest the tax …

Rethinking Antitrust Injury, Roger D. Blair, Jeffrey L. Harrison

Vanderbilt Law Review

Substantive changes in antitrust law since 1977 have had a dramatic impact on the vitality of antitrust enforcement.' Recent "procedural" changes now seem likely to have as great an influence. In the procedural area, the emphasis has been on antitrust standing and anti-trust injury. As a result of recent judicial interpretations of these requirements, antitrust plaintiffs face increasingly formidable hurdles. As courts focus on questions of standing and injury, important discussions about whether a practice should be held to a per se or rule of reason standards frequently are immaterial. If there is no qualified plaintiff,the substantive issue need never …

Walking In Their Shoes: Paying Respect To Incompetent Patients, D. Don Welch

Vanderbilt Law Review

One of the great games that judges play is to act as if their decisions are based on objective standards. For understandable reasons,judges prefer that their decrees be seen as resting on accepted principles of law rather than on a judicial choice between two competing,plausible opinions. One such accepted principle has been that decisions giving consent for medical treatment of incompetent patients should be made to serve the "best interests" of the patients.' In recent years,courts increasingly have used a new, seemingly less objective standard called "substituted judgment" to replace the best interests standard in certain situations. Under this new …

The Eeoc Is Meeting The Challenge: Response To David Rose R., Gaull Silberman

Vanderbilt Law Review

In his recent article, Twenty-Five Years Later: Where Do We Stand On Equal Employment Opportunity Law Enforcement?, David Rose declares, "The time is ripe for review." Mr. Rose argues that "effective enforcement of the equal employment opportunity law in the next decade is a necessary, if not sufficient, predicate for the social and economic well being of the Nation."' From my perspective as Vice Chairman of the Equal Employment Opportunity Commission (EEOC or Commission), I heartily agree with both points. I must take issue,however, with Mr. Rose's assessment of developments in federal equal employment opportunity law over the last twenty-five …

Tibet To Tienanmen: Chinese Human Rights And United States Foreign Policy, W. Gary Vause

Vanderbilt Law Review

The roof of the world, land of the snows, alleged home of the Abominable Snowman, and place for the timeless meeting of mountain and sky--these are the Western visions of Tibet.' Most Americans know little else about this strange and exotic land shrouded in historical obscurity. Modern Tibet is a curious stockpot of native Tibetans and immigrant Chinese, which until recently was seasoned with increasing numbers of Western tourists, backpackers of all ages, vagabonds,and visitors from neighboring Nepal.'On June 4, 1989, China's 27th Army brutally crushed democracy demonstrations that had extended for seven weeks in Beijing and other Chinese cities. …

Misery Loves Company: Spreading The Costs Of Cercla Cleanup, Anne D. Weber

Vanderbilt Law Review

The typical case arising under the Comprehensive Environmental Response, Compensation, and Liability Act' (CERCLA) involves hazardous waste generation and disposal spanning several decades by companies no longer in existence. Subsequent attempts at cleanup by federal and state governments and private parties, as well as legal battles over the ultimate responsibility, are also at issue in the typical CERCLA case. A single party is rarely responsible for the toxic waste pollution of a site. Usually, a toxic waste site, such as a landfill, will have numerous potentially responsible parties (PRPs): generators;transporters; current owners and their lessees; former owners and operators and …

Title Vii Remedies: Reinstatement And The Innocent Incumbent Employee, Larry M. Parsons

Vanderbilt Law Review

Congress enacted Title VII of the Civil Rights Act of 19641 twenty-five years ago. Through Title VII Congress sought to remove artificial barriers that limited employment opportunities for minorities. The statute is not limited, however, to prohibiting race discrimination. Title VII directly confronts the problem of discrimination in the workplace by prohibiting employment decisions based on the race, color, religion, sex, or national origin of the employee or applicant. The Act prohibits an employer from favoring one group of employees over another due to irrelevant characteristics and classifications.

Title VII litigation occupies a significant portion of the federal docket. The …

A Fault-Based Administrative Alternative For Resolving Medical Malpractice Claims, Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., Martin S. Hatlie

Vanderbilt Law Review

The recurring crises in medical malpractice litigation have been widely discussed and documented over the past two decades.' In response to these crises, a growing consensus has emerged among legislatures, government agencies, and scholars in favor of tort reform. Indeed, virtually every state has passed some tort reform legislation.'Despite the reforms, several serious problems persist in medical malpractice. The current tort system does not compensate injured patients adequately or equitably, nor does it deter negligent practices sufficiently. These failings occur despite the increasingly high costs to society of the tort system. Particularly troublesome is the impact of these crises on …

Challenging The Death Penalty Under State Constitutions, James R. Acker, Elizabeth R. Walsh

Vanderbilt Law Review

Death penalty litigation that reaches the Supreme Court now causes at least as much consternation as hope among opponents of capital punishment. Simply not losing rights that once were considered secure can be tantamount to victory in capital cases decided by the Court,and few defendants and opponents of capital punishment expect much more. It was not always so. Hopes were once high that the Supreme Court, and the federal courts generally, would effectively bring an end to capital punishment in America.

That prospect is now remote, at best. Death row populations are sky rocketing and executions are on the rise. …

The Distribution Right In The United States Of America: Review And Reflections, John M. Kernochan

Vanderbilt Law Review

This Essay on the distribution right considers the possibility and the merits of three options now widely discussed. These are: (a) ex-tending the reach of an old right, the right of reproduction, to include the currently debated "droit de destination," or (b) broadening the right of distribution in nations that have such a right by cutting back on the"first sale doctrine"' and other limitations on that right, and (c) giving authors broad control over use of their work. All of these approaches aim to make authors' rights more substantial and effective to achieve their purpose amid the erosions resulting from …

The Confrontation Clause Applied To Minor Victims Of Sexual Abuse, Eleanor L. Owen

Vanderbilt Law Review

Dramatic increases in reports of child abuse and an even more alarming rise in reports of sexual abuse of children have contributed to growing media attention and public awareness of these problems. Concern for effective prosecution of the abusers, as well as for protection of the minor victims from further psychological trauma, has prompted a growing number of states to develop statutory measures that provide special protection from trauma for children during testimony at trial.The minor victim reportedly has the most difficulty facing his or her family and the defendant during testimony. Creative solutions' to this problem have been developed …

Book Review: Icons And Aliens, Richard F. Babcock

Vanderbilt Law Review

I believe it was Goethe who observed that "daring ideas are like chessmen moved forward. They may be beaten, but they may start a winning game." This book may beat John Costonis, but I will wager he has started a winning game.I say this because in spite of his wit and the cartoons, he is going to make some Very Important People mad-if they will read this book. I would like to see the faces of, say, Kent Barwick, President of the Municipal Art Society of New York City, and Brendan Gill of The New Yorker when they read the …

The State Of The Union: Civil Rights, Paul G. Wolfteich

Vanderbilt Law Review

"The times," wrote Bob Dylan in 1963, "they are a-changin'." One hundred years after formal emancipation, blacks in 1963 were beginning to see the end of laws that prevented their full participation in American society. The United States Supreme Court had struck down the separate but equal doctrine, Congress had passed the first civil rights legislation in seventy-five years, and the executive branch was enforcing the law. Anthony Lewis wrote in the mid-1960s that "[n]o one could doubt that the conscience of America has been seized by the injustice of unequal treatment because of a man's skin." A women's liberation …

The Fair Housing Amendments Act Of 1988: The Second Generation Of Fair Housing, James A. Kushner

Vanderbilt Law Review

A generation has passed since the legislative victories of the 1960s extending civil rights protection: twenty-five years since the passage of the historic Civil Rights Act of 1964,1 twenty-four years since the passage of the Voting Rights Act, and twenty-one years since the passage of the Fair Housing Act of 1968. As we enter the second generation of civil rights enforcement under new Presidential leadership it is important to assess the state of civil rights, to examine the experience of first generation enforcement and the promises of the second generation.

The state of civil rights in the area of housing …

Race And Economic Opportunity, Robert L. Woodson

Vanderbilt Law Review

The true character of a nation can be judged in part by the way it treats its weakest or most vulnerable members. In the past decades, no-where has this test been more evident than in the quest for civil rights by black Americans. Civil rights has also become the leading indicator of the moral health of the Nation.

With the passage of civil rights laws, one-third of black Americans-those prepared by family status, education, or economic circumstance-walked through the doors of opportunity once they were opened. For unprepared blacks, removing racial barriers did not enable them to join the mainstream …

Twenty-Five Years Later: Where Do We Stand On Equal Employment Opportunity Law Enforcement?, David L. Rose

Vanderbilt Law Review

As we near the twenty-fifth anniversary of the passage of the Civil Rights Act of 1964, an assessment of equal employment opportunity law is both natural and appropriate. Prior to 1964, the federal government had imposed equal employment opportunity obligations on itself as well as its contractors and subcontractors. And Title VII of the Act,which mandated such obligations, did not become effective until July 2,1965. Yet the Civil Rights Act of 1964, which was the first comprehensive legislation to address the problems of discrimination in American society, became the cornerstone of modern civil rights law, including equal employment opportunity law.The …

Gender Discrimination And The Transformation Of Workplace Norms, Kathryn Abrams

Vanderbilt Law Review

Lately when I talk about gender, I am often confronted with the message that women's equality has already been achieved. A colleague may provide this insight, or a complete stranger waiting in a grocery line. But the thought was most succinctly expressed by a student who grew impatient with my activism. "I don't understand," she declared."Women have gotten just about everything they wanted. Don't they see that the time for militancy is over?" Perhaps this response should come as no surprise. The battle for the Equal Rights Amendment has been lost, but in salient ways our society seems to have …

The Courts' Response To The Reagan Civil Rights Agenda, Drew S. Days, Iii

Vanderbilt Law Review

The Reagan Administration came to Washington, D.C. committed to reintroducing traditional theories of civil rights enforcement. The thesis of this Essay is that the Administration's efforts concerning the enforcement of civil rights were not successful. Of course, only time will tell whether civil rights jurisprudence will be altered because of forces set in motion by the Administration and changes in the makeup of the judiciary.Using the United States v. Carotene Products Co.' decision as the point of departure for a consideration of twentieth-century civil rights doctrine, it is apparent that the original goal of the Supreme Court's civil rights policy …

The Quiet Revolution In Minority Voting Rights, Laughlin Mcdonald

Vanderbilt Law Review

The modern voting rights movement began with passage of the Voting Rights Act of 19651 and was essentially black and southern. To-day that movement, propelled by a series of congressional amendments to the Act, favorable court decisions, and the concerted efforts of minority and civil rights communities, is multiracial and national in character. It is also having an increasingly profound impact on American politics.

Although the 1965 Act had provisions that applied nationwide,Congress intentionally targeted seven states of the old Confederacy-Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and portions of North Carolina-for the application of unique and stringent measures described …

The Reagan Administration's Civil Rights Policy: The Challenge For The Future, William B. Reynolds

Vanderbilt Law Review

The almost twenty years that followed Brown showed real progress toward a color-blind society. That progress, however, lost momentum in the 1970s as many civil rights leaders advanced well-intended, but poorly conceived, policies with the all-too-familiar consequence of dividing people along color lines. In that decade, the bright future of race relations began to dim as discriminatory techniques--mislabelled as"benign" or "affirmative"-reemerged to work their destruction on the hopes of a public anxious to find harmonious, goodwilled solutions to the problems of the past.Today, the struggle continues for a national heritage blind to skin color or ethnic background. The challenge for …

The Status Of The Law Of Nations In Early American Law, Stewart Jay

Vanderbilt Law Review

A perennial issue is the relationship of international law to the domestic law of the United States. The question appears in various con-texts, but in each the central problem is determining whether the body of customary international law is binding on the national and state governments. Discussions about this subject inevitably lead to consideration of separation of powers at the national level. If the United States may depart from international law, which branch of government has the power to do so? If one branch transgresses international law, is this action binding on the others?' For example, a recent case examined …

Cocaine, Demand, And Addiction: A Study Of The Possible Convergence Of Rational Theory And National Policy, A. Morgan Cloud, Iii

Vanderbilt Law Review

As the "war against drugs" meanders through the century,' policy-makers continue to search for effective strategies for combating the illegal drug industry. For seventy-five years the dominant federal strategy has been to curtail supplies of prohibited substances.' In its many permutations, this supply-side approach has included attempts to eradicate crops, to intercept drugs at the Nation's borders, and to arrest, prosecute, and punish commercial participants at every level of the production and distribution system.

By any rational measure, the supply-side "war against drugs" has failed. Only ten to fifteen percent of the illicit drugs entering the country are intercepted and …

Lender Liability: A Survey Of Common-Law Theories, Frances E. Freund

Vanderbilt Law Review

Lender liability litigation has increased dramatically over the past several years. The increase in claims is hardly surprising when one considers recent multimillion dollar recoveries.' Such well-publicized verdicts against lenders serve to encourage borrowers to defend even routine collection claims by striking out at the lender.

Most often borrowers bring lender liability suits following commercial loan defaults. These suits are based on a number of common-law theories for liability including: breach of contract, breach of fiduciary duty,' and breach of good faith, as well as fraud, duress, interference, and negligence. Some suits also raise statutory claims under the bankruptcy laws, …

Computer Programs As Applied Scientific Know-How: Implications Of Copyright Protection For Commercialized University Research, J. H. Reichman

Vanderbilt Law Review

This Article surveys the problems that university administrators face when seeking to exploit proprietary rights in new technologies,with particular regard to computer software. In so doing, it explores larger questions about the proper role of intellectual property laws in protecting applied scientific know-how and the proper role of universities in exploiting the opportunities that such laws increasingly make available.

Special Project: Lender Liability, Journal Staff

Vanderbilt Law Review

In recent years banks and other commercial lending institutions have faced a rapid increase in problem loans.' At the same time, the relatively new phenomenon in United States law known as "lender liability" has signaled an expansion of the legal theories under which courts may find lenders liable for damages incurred by borrowers. Perhaps most significantly, many courts now allow borrowers to recover against lenders based on various tort theories. Because of the broader remedies afforded under tort theories as compared to those remedies previously available in contract, some lenders recently have experienced large adverse verdicts. If courts continue to …

Defining The Contours Of Erisa Preemption Of State Insurance Regulation: Making Employee Benefit Plan Regulation An Exclusively Federal Concern, Lawrence A. Vranka, Jr.

Vanderbilt Law Review

Congress enacted the Employee Retirement Income Security Act (ERISA) in 19741 to address problems in the area of employee pensions and benefits, with which prior federal enactments and complementary state regulation had been unable to cope. ERISA established a comprehensive scheme that placed the regulation of qualified employee benefit plans exclusively in federal hands.' The drafters of ERISA also sought to reserve to the states the power to regulate areas in which they traditionally had primacy--most notably, insurance, banking, and securities. The drafters of ERISA thus attempted to carve out an area of "exclusive federal concern," while preserving state regulation …

Stock In A Closely Held Corporation:Is It A Security For Uniform Commercial Code Purposes?, Tracy A. Powell

Vanderbilt Law Review

The term security has many applications. No application, however,is more important than when an interest owned or traded is determined to be within the legal definition of security. Security is defined by statutes and applied by many courts for the purposes of federal securities laws and for state blue sky laws. When interpreting the term security for federal securities laws, courts have emphasized the underlying congressional purpose of protecting investors. State courts also have interpreted the term liberally in an effort to protect the public under blue sky laws.'

The definition of security in the Uniform Commercial Code(U.C.C.), however, has …

Judicial Activism And Restraint In The Supreme Court's Environmental Law Decisions, Richard E. Levy, Robert L. Glicksman

Vanderbilt Law Review

The proper role of the courts in our system of government has long been the source of considerable controversy. Proponents of "judicial activism" argue that because only the courts are insulated from political pressures, courts should exercise the judicial power broadly in the constitutional context to ensure that legislation is consistent with constitutional norms. Likewise, the argument continues, judicial activism is necessary in the regulatory context to ensure that administrative agencies implement statutory objectives. In contrast, proponents of"judicial restraint" argue that the legislative and executive branches alone should make public policy because only these branches are responsive to the electorate. …