Law Commons^™

Closing The Book On The School Trust Lands, C. Maison Heidelberg

Vanderbilt Law Review

Public education in the United States faces a crisis. Financially strapped state and local governments find funding more and more difficult to supply; as a result, the quality of public education suffers. Predictably citizens are concerned, yet they resist paying increased taxes to meet the rising costs.

School trust lands provide one potential source of extra revenue. Though their existence is not well known, these lands are tremendous assets held by most states other than the original thirteen. In general, they have produced significant amounts of revenue for public education, yet historically state management of the lands has been marred …

The Lemonade Stand: Feminist And Other Reflections On The Limited Liability Of Corporate Shareholders, Theresa A. Gabaldon

Vanderbilt Law Review

The sultriness that was summer in D.C. blanketed the pedestrians returning to Capitol Hill. Trickling toward home through air that passively resisted, I almost overlooked a shape emerging from the haze of my own street. It might have been some atmospherically-induced apparition; rather, there, in the 1990s, in front of a well-kept urban rowhouse with door adorned by yuppie wreath, sat an immaculate child, seraphically presiding over a linen-covered table bearing a pitcher made of Tupperware. His neatly lettered sign, presumably prepared by an invisible caregiver in endorsement of his enterprise, read "Lemonade - 50 Cents."

The little boy with …

Reconceptualizing Sovereign Immunity, Harold J. Krent

Vanderbilt Law Review

The United States generally is immune from suit without its con- sent. Accordingly, neither Congress nor the executive branch need pay damages' for any contract breached, any tort committed, or any constitutional right violated by the federal government. Although the doctrine of sovereign immunity persists, it persists subject to near unanimous condemnation from commentators. Many have rejected the underlying theory that the "King can do no wrong" as oddly out of place in our republican governments and many have noted as well that sovereign immunity was never applied as comprehensively in the past as it is today. Presently, there seems …

The Taxation Of Nonshareholder Contributions To Capital: An Economic Analysis, Thomas L. Evans

Vanderbilt Law Review

Every year, billions of dollars are contributed to corporations by persons who are neither owners nor shareholders of those corporations. These contributions, categorized under the income tax laws as "non- shareholder contributions to capital," play an important economic role in subsidizing the construction of new factories and other improvements to the nation's infrastructure.

This Article concerns the federal income tax treatment of the two principal categories of nonshareholder contributions to capital, which together encompass the great majority of these transactions. The first category consists of contributions made for the purpose of obtaining economic development. Typically, this occurs when governments and …

The Payne Of Allowing Victim Impact Statements At Capital Sentencing Hearings, Michael I. Oberlander

Vanderbilt Law Review

A teenage boy returns from a night out with his friends to find his home in disarray; furniture is strewn about and valuable belongings are missing. He ventures towards his parents' bedroom, unaware of the horrific scene that he soon will witness. As he enters his parents' bedroom a sudden sense of reality washes over him as he views the scene in the room: his parents are dead on their bed, in inhuman, violently conorted positions, with blood covering the sheets, their bodies, the floor, and the walls. The boy, in shock, reaches for the phone and calls the police. …

The Voidability Of Actions Taken In Violation Of The Automatic Stay: Application Of The Information-Forcing Paradigm, Robert R. Niccolini

Vanderbilt Law Review

The automatic stay' is undeniably one of the most important elements of the bankruptcy process. In fact, the expansion of the stay was one of the major changes that the 1978 Bankruptcy Reform Act initiated. Despite the integral nature of the automatic stay, however, courts have yet to reach a consensus regarding the conceptualization and subsequent effect of actions taken in violation of the stay. Presently, a substantial majority of the circuits hold that such actions are void "ab initio" and of no legal effect. A small but significant number of courts, however, decline to follow the majority rule. These …

Retroactive Application Of The Civil Rights Act Of 1991, Kristine N. Mcalister

Vanderbilt Law Review

On November 21, 1991, President Bush signed the Civil Rights Act of 1991 (the "Act") into law. The Act contained a general section stating that its provisions should take effect upon enactment. What the Act did not do, however, is indicate whether it should apply to cases pending at the time of its enactment. Since the Act is more favorable to plaintiffs than was its predecessor, plaintiffs whose cases were pending at the time of its enactment have attempted to amend their complaints to benefit from the new Act's provisions. Congress's failure to indicate whether the Act should apply to …

Prospective Overruling And The Judicial Role After "James B. Beam Co. V. Georgia", K. David Steele

Vanderbilt Law Review

Was there ever such a profession as ours anyhow? We speak of ourselves as practicing law, as teaching it, as deciding it, and not one of us can say what law means."' Justice Cardozo's observation about the elusive nature of the American legal system lies at the heart of the controversy over retroactivity. Questions about whether judges may prospectively overrule the law raise fundamental issues concerning the nature of law and the proper role for the judiciary.

In 1991, the Supreme Court issued its latest opinion on prospective overruling and judicial rulemaking. In James B. Beam Distilling Co. v. Georgia, …

Hypnotic Memories And Civil Sexual Abuse Trials, Jacqueline Kanovitz

Vanderbilt Law Review

In the next few paragraphs, the reader will eavesdrop on a psycho- therapy session. During this session, the therapist uses hypnosis, a common technique in clinical practice today. In the past, the legal system has paid little attention to the memory retrieval techniques used in psychotherapy because statutes of limitations have prevented patients from using memories of childhood wrongs uncovered in adult psycho-therapies to bring suit. However, recent changes will force the legal system to examine whether the memory restoring techniques used in psychotherapy can produce memory that is trustworthy enough for the legal system to accept. What follows is …

Franklin V. Gwinnett County "Public Schools": The Supreme Court Implies A Damages Remedy For Title Ix Sex Discrimination, Susan L. Wright

Vanderbilt Law Review

Congress enacted Title IX of the Education Amendments of 1972 (Title IX)' to address the widespread existence of sex discrimination in educational institutions.' Twenty years later, in Franklin v. Gwinnett County Public Schools, a unanimous Supreme Court put teeth into the statute by finding that Title IX relief includes compensatory damages. he Supreme Court's decision resolved a split of authority between the Third Circuit and the Seventh and Eleventh Circuits. The Court agreed with the Third Circuit, which had recently become the first court of appeals to find a right to compensatory relief under Title IX.

Congress had two main …

Priorities In Accounts: The Crazy Quilt Of Current Law And A Proposal For Reform, Dan T. Coenen

Vanderbilt Law Review

Moe Promisee has a right under a contract to receive monetary payments from Mae Promisor. Moe assigns his right first to Faye and then to Clay. Whom must Mae pay, Faye or Clay?

For more than a century, judges have struggled with successive assignments to different persons of the same contract right. These cases, which typically involve rights to monetary payments called "accounts," have generated subtleties of doctrine and disagreements among courts. Today, as a general rule, the Uniform Commercial Code controls these cases.' Ambiguities, however, lurk in the Code. Cryptic common-law doctrines also continue to govern many successive-assignment problems. …

A Critical Look At Corporate Governance, Lawrence E. Mitchell

Vanderbilt Law Review

The internal law of corporations is built upon the problem of competition-not competition with the world outside the corporate entity, which, according to liberal economic theory, is essential to the increase of wealth and well-being in society, but competition among the various groups of individuals that animate the corporation. The problem is (to extend the implicit metaphor) as if a human being's internal organs were constantly battling to capture all of the body's energy, rather than working together to contribute to the well-being of the whole. Like the human body, the corporation's "energy" (its assets) is, at any given point …

Habeas And Hubris, Barry Friedman

Vanderbilt Law Review

In 1965 the Supreme Court made clear that state prosecutors were virtually free to exercise peremptory challenges to remove blacks from criminal juries for no reason other than their race.' Roughly twenty years later the Supreme Court changed its mind: "The core guarantee of equal protection . . . would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions [of bias], which arise solely from the jurors' race."

The right to counsel experienced a similar reversal of fortune. About fifty years ago the Court decided that "fundamental fairness" and a "universal sense of …

Introduction: Caring For The Nation--Current Issues In Health Care Reform, Susan E. Powley

Vanderbilt Law Review

Health care reform is once again on the "front burner" of American politics. With health care costs in the United States rising at three times the rate of inflation and an increasing portion of the population falling through the cracks of the current health care delivery system,' legislators, health care professionals, and the population at large now have little difficulty agreeing that the system is badly in need of reform. This consensus, however, falls apart when discussion turns to what needs to be fixed and how to fix it. Federal legislators currently have over twenty health bills pending before them, …

Cruel And Unusual Punishment In The Provision Of Prison Medical Care: Challenging The Deliberate Indifference Standard, Michael C. Friedman

Vanderbilt Law Review

Most Americans have little knowledge or concern about what hap- pens inside this Nation's prisons.' Unless prisoners riot, they generally are far removed from the popular consciousness. Members of society beyond prison walls hear about only the most severe and exceptional cases of prisoner suffering. When prisoners do not receive adequate medical treatment, however, they may suffer harm beyond the segregation from society and loss of liberty contemplated by incarceration. A discussion of the medical care that prisoners receive must begin, therefore, with a recognition of the paradox of taking care of individuals about whom very few people in society …

The Disfranchisement Of Fertile Women In Clinical Trials: The Legal Ramifications Of And Solutions For Rectifying The Knowledge Gap, L. Elizabeth Bowles

Vanderbilt Law Review

Twice as many women as men receive treatment for clinical depression, yet men benefit more than women from antidepressant drug treatment. Likewise, women use more prescription drugs than men, but suffer proportionally more side effects.' Such disparities stem from the traditional attitude of pharmaceutical companies and researchers to- ward the use of women in clinical trials. In general, researchers have tested drugs on young white males without regard for gender differences, often assuming that data extrapolated from studies on males are readily applicable to females. Even medical treatments designed exclusively for women are developed and tested based on a male …

Competition Among Municipalities As A Constraint On Land Use Exactions, Stewart E. Sterk

Vanderbilt Law Review

Even before the Supreme Court decided Nollan v. California Coastal Commission,' courts and scholars debated the wisdom and constitutionality of land use exactions and impact fees-government-imposed charges on the right to develop land. Many municipalities have long required developers to finance infrastructure improvements.s Fiscally drained municipalities, particularly big cities, had begun to use, or to consider using, exactions or their close cousins, "linkage" programs, as a means to finance a wider variety of government services.

The controversy these fees have generated reflects more general concerns about financing local government. Municipalities and their defenders justify exactions and impact fees as necessary …

The Pariah Patient: The Lack Of Funding For Mental Health Care, Wayne E. Ramage

Vanderbilt Law Review

In all the furor over the provision of health care in the United States-especially over who will pay for the skyrocketing costs of medical treatment-one class of patient appears to have been overlooked: the mentally ill. This oversight is not new; Anglo-American society historically has viewed the mentally ill as outsiders. In England, for example, inmates at the infamous "Bedlam" hospital for the insane often were displayed for the amusement of the paying public.' Society's disdain of the mentally ill still exists and has led to public neglect of these unfortunates, especially in the provision of mental health care.

Since …

The Oregon Basic Health Services Act: A Model For State Reform?, Eric L. Robinson

Vanderbilt Law Review

Americans currently spend $733 billion, or 12.3 percent of the Gross National Product (GNP), per year on health care. This is nearly twice what Americans spent on health care just seven years ago. Health care is also one of the fastest growing major items in the federal and state budgets. Not surprisingly, governments, businesses, and individuals all are having difficulty finding resources to meet the increasing costs of health care. As a result, the health care delivery system has cut costs by denying some people access to adequate health, care services. Currently, an estimated thirty-seven million Americans are uninsured. In …

Liberal Visions Of The Freedom Of The Press, Michael Gerhardt

Vanderbilt Law Review

Liberals have long regarded the First Amendment's freedom of the press guarantee as their special plaything.' For most of this century, liberals have dominated the scholarship and the doctrinal debate on the freedom of the press. They have often urged the federal courts to establish the press as "a fourth institution outside the Government as an additional check on the three official branches." Liberal judges have ensured virtual autonomy for the print media through the cumulative effect of their rulings to immunize the press from damages for the publication of falsehoods about public figures unless the publication was done knowingly, …

Property And Liberty Reconsidered, Herman Belz

Vanderbilt Law Review

This perceptive, lucid, and sympathetic account of property rights in American constitutional law by Professor James W. Ely, Jr., is further evidence of the conservative challenge to liberal orthodoxy that has emerged in recent years in American historiography. That the book appears under the cosponsorship of the Organization of American Historians, one of the more militantly liberal scholarly associations in the United States, is a small but significant sign of the changing intellectual climate.

As conceived of in contemporary liberal historiography, protection of individual property rights is but one element of economic liberty. Equally if not more important, according to …

A Reevaluation Of The Canons Of Statutory Interpretation, Joseph H. Bates

Vanderbilt Law Review

This Symposium has its genesis in the Vanderbilt Law Review's inaugural symposium, A Symposium on Statutory Construction, published in 1950.' Although the 1950 Symposium included a Foreword by Justice Felix Frankfurter and contributions by several preeminent scholars in the field, Karl Llewellyn's clumsily titled but succinctly written Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed has eclipsed the Symposium which brought it to light and has persevered as a highly influential, if not definitive, critique of the canons of statutory construction.

Llewelyn's article, in general, attacks legal formalism and …

Modern Statutes, Loose Canons, And The Limits Of Practical Reason: A Response To Farber And Ross, Edward L. Rubin

Vanderbilt Law Review

Daniel Farber' and Stephen Ross, in separate contributions to this Symposium, raise the most crucial question in modern statutory interpretation, a question that exposes the profound triviality of the canons of statutory construction that Karl Llewellyn so effectively attacked. Ross points out that the legislature can control, or at least attempt to control, the judicial use of the canons by the way it drafts the statute and by effective use of supplementary materials such as mark-ups, committee reports, and floor debates. Farber, in his critique of formalism, demonstrates that formalist interpretation is an impediment to effective statutory drafting. Inherent in …

Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes To You?, Stephen F. Ross

Vanderbilt Law Review

Over forty years ago, in the Symposium we commemorate today, Professor Karl Llewellyn wrote a devastating critique of the canons of statutory construction. For virtually every canon of construction, he demonstrated that there was another canon that could be employed to reach the opposite result. His point was not to be critical, but to argue proscriptively that the process of statutory construction requires an interpretation in light of a judicial determination of "some assumed purpose."'

Other commentators, both before and after the publication of Llewellyn's magnificent contribution to the Vanderbilt Law Review, have taken a different approach. These observers have …

The Inevitability Of Practical Reason: Statutes, Formalism, And The Rule Of Law, Daniel A. Farber

Vanderbilt Law Review

This Symposium commemorates the publication of Karl Llewellyn's assault on the canons of statutory interpretation. This Article seeks to situate Llewellyn's view of statutory interpretation within the ongoing debate between advocates of practical reason and formalism.

Many critics of practical reason question its compatibility with the rule of law. If we cannot precisely describe the operation of practical reason, can we have any confidence in its ability to guide judicial decisions? Or, on the contrary, does formalism provide a greater degree of democratic accountability, certainty, stability, and predictability than practical reason? These questions are the primary concern of this Article. …

The Canons Of Statutory Construction And Judicial Preferences, Jonathan R. Macey, Geoffrey P. Miller

Vanderbilt Law Review

A regrettable side-effect of Karl Llewellyn's interesting critique of the canons of statutory construction was that intellectual debate about the canons was derailed for almost a quarter of a century. In his critique, Professor Llewellyn purported to show that the canons of statutory construction were useless as rules for guiding decisions. His claim, that every canon could be countered by an equal and opposite counter- canon, transformed the canons from exalted neutral principles into "conclusory explanations appended after the fact to justify results reached on other grounds."

This Article's first goal is to demonstrate that Karl Llewellyn's critique was largely …

The Costs Of Incoherence: A Comment On Plain Meaning, West Virginia University Hospitals, Inc. V. Casey, And Due Process Of Statutory Interpretation, T. Alexander Aleinikoff, Theodore M. Shaw

Vanderbilt Law Review

Karl Llewellyn's classic article on the canons of statutory construction, which we rightly celebrate in this Symposium, is too clever by half. To the reader untutored in the scholarly literature on statutory interpretation, the "thrust but parry" pairing of the canons is a delightful demonstration of how legal argument is structured in a way guaranteed to maintain discretion in the judiciary and to keep lawyers in business. No case involving a statute is clear cut because the canons can lend support to either side. This means that no lawyer is without an argument, and a judge is free to do …

Coalition Formation And The Presumption Of Reviewability: A Response To Rodriguez, Robert K. Rasmussen

Vanderbilt Law Review

Professor Dan Rodriguez's paper The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences' makes several important contributions to the literature on statutory interpretation in the modern regulatory state. It provides a coherent explanation for the curious review provisions of the Administrative Procedure Act (APA), and analyzes the continuing battle over judicial review of agency action as part of a continuing dialogue among Congress, the courts, and the President. Rodriguez recognizes that those who study statutory interpretation must take account of both the existence of administrative agencies and the fact that interpretive practices have the potential to affect …

Quasi-Constitutional Law: Clear Statement Rules As Constitu, William N. Eskridge, Jr., Philip P. Frickey

Vanderbilt Law Review

In one of the most celebrated law review articles of all time, Karl Llewellyn argued that the traditional canons of statutory construction are not reliable guides to predicting judicial interpretations, because for every canon supporting one interpretation there is a counter-canon cutting against that interpretation. He accomplished his tour de force in large part by focusing upon the "referential" canons-rules referring the Court to an outside or preexisting source to determine statutory meaning'-and upon the "linguistic" canons-general conventions of language, grammar, and syntax. Llewellyn did not explore in any detail the "substantive" canons, the clear statement rules or presumptions of …

The Canons Of Statutory Construction And Judicial Constraints: A Response To Macey And Miller, Lawrence C. Marshall

Vanderbilt Law Review

Professors Jonathan Macey and Geoffrey Miller claim to have set out to provide a positivist explanation for why judges ever invoke canons in the course of interpreting statutes.' In truth, though, their question is a far broader one. What they really seek to explain is why judges ever use any interpretive tools in the course of interpreting statutes. Why, Macey and Miller want to know, don't judges simply decide what result in the case will best promote a good outcome on the grounds of public policy, intrinsic fairness, economic efficiency or wealth maximization? This question is perplexing to Macey and …