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Full-Text Articles in Law

Duke V. Cleland: The Eleventh Circuit Neglects The First Amendment Rights Of Political Parties And Allows States To Limit Ballot Access Of Presidential Primary Candidates, Steven A. Kirsch Nov 1993

Duke V. Cleland: The Eleventh Circuit Neglects The First Amendment Rights Of Political Parties And Allows States To Limit Ballot Access Of Presidential Primary Candidates, Steven A. Kirsch

Vanderbilt Law Review

Notwithstanding H. Ross Perot's strong third place finish in the 1992 Presidential election,' history suggests a successful presidential candidate must be a member of one of the two major political parties to win. As a result, many candidates compete for each major party's nomination. Moreover, the leaders of state Democratic and Republican parties that hold presidential primaries often have attempted to remove the lesser-known, and sometimes politically unpopular, candidates from the ballot. One argument advanced by state party leaders in support of their attempts to prevent some candidates from appearing on the ballot is that the political party has a …


Unfunded Mandates, Hidden Taxation, And The Tenth Amendment: On Public Choice, Public Interest, And Public Services, Edward A. Zelinsky Nov 1993

Unfunded Mandates, Hidden Taxation, And The Tenth Amendment: On Public Choice, Public Interest, And Public Services, Edward A. Zelinsky

Vanderbilt Law Review

Few contemporary issues concern state and local policymakers as intensely as unfunded mandates.' Mayors, county executives, city councilmen, and the professional associations representing them routinely argue that the federal and state governments have, in recent years, imposed at an accelerating rate expensive requirements on municipalities without granting corresponding funds for compliance, thereby irresponsibly straining the fiscal capacity of municipalities, hampering their ability to provide essential services, and improperly infringing upon the scope of local control. The complaints of municipal policymakers have provoked a variety of proposals for restraining unfunded mandates: obligatory disclosure of the projected costs of proposed mandates, requirements …


Tempering Title Vii's Straight Arrow Approach: Recognizing And Protecting Gay Victims Of Employment Discrimination, Marie E. Peluso Nov 1993

Tempering Title Vii's Straight Arrow Approach: Recognizing And Protecting Gay Victims Of Employment Discrimination, Marie E. Peluso

Vanderbilt Law Review

Consider the following scenario: Jerry, an outstanding graduate of Superior University's business school, has worked for Moneytree & Cashdollar, a prestigious investment banking firm, for three years. In that period, Jerry's hard work and keen instincts helped increase Moneytree's revenues by several million dollars. In addition, Jerry received two awards for landing important new clients. The firm's managing partners have discussed promoting Jerry to junior vice president, an executive position typically reserved for qualified fifth year employees. Jerry's supervisors and peers enthusiastically commend his dedication and skill. Two weeks before the vote on his promotion, Jerry lured a particularly valuable …


Reverse Informed Consent: The Unreasonably Dangerous Patient, A. Samuel Oddi Nov 1993

Reverse Informed Consent: The Unreasonably Dangerous Patient, A. Samuel Oddi

Vanderbilt Law Review

Latrogenic injuries'-those caused by health care professionals (HCPs) in the course of treating patients-raise significant ethical, legal, and public policy issues.' With the advent of the AIDS epidemic, these issues become even more difficult when the iatrogenic injury results not from the patient's having received treatment below the professional standard of care (which is the usual grist for the malpractice mill) but from an infectious condition of the HCP. Considerable public attention has been directed to patients who have been exposed to the risk of AIDS by HIV-positive HCPs.6 It is difficult to be unmoved by the tragic example of …


Taxing Gains At Death: A Further Comment, Charles O. Galvin Nov 1993

Taxing Gains At Death: A Further Comment, Charles O. Galvin

Vanderbilt Law Review

Professor Lawrence Zelenak's recent Article provides an excellent analysis of the relevant issues and their treatment in a tax regime in which gains and losses are recognized at gifttime and deathtime transfers.' I have argued for the same policy change, suggesting further the repeal of the wealth transfer tax system altogether and possibly the repeal of Section 1022 to require the inclusion in recipients' gross income of gifts, bequests, devises, and inheritances.' Still further, in agreement with Professor Zelenak, I would retain the present concepts of the marital deduction, unlimited charitable deduction for deathtime transfers, and some minimum exemption that …


Sentence Credit For Pre-Trial Defendants Released To Residential Detention Facilities, Maryellen Sullivan Nov 1993

Sentence Credit For Pre-Trial Defendants Released To Residential Detention Facilities, Maryellen Sullivan

Vanderbilt Law Review

Most individuals consider continued confinement to a residential detention facility and denial of access to phone, mail, and family visits to constitute involuntary detention. The majority of the federal courts of appeal do not agree, however, and will not grant sentence credit to a federal offender for time spent, as a condition of bond, in a "treatment center" or "halfway house."' These same courts, without exception, grant sentence credit to individuals who are remanded to these residen- tial facilities after conviction. This inequity violates the purpose of the Bail Reform Act of 1966 (the "Act"), which ensures even-handed and uniform …


Shift Of Fiduciary Duty Upon Corporate Insolvency: Proper Scope Of Directors' Duty To Creditors, Laura Lin Nov 1993

Shift Of Fiduciary Duty Upon Corporate Insolvency: Proper Scope Of Directors' Duty To Creditors, Laura Lin

Vanderbilt Law Review

In the wake of the debt binge of the 1980s, the number of financially distressed corporations has increased dramatically.' Because a struggling company rarely ceases operations overnight, directors still need to make investment and operational decisions concerning the best use of the company's existing assets. This need remains whether the firm will regain profitability or will be liquidated. Financial distress also intensifies conflicts of interest between shareholders and creditors. Indeed, when these constituencies are unable to recover their investments in the corporation because of insufficient assets, both shareholders and creditors have incentives to maximize their individual returns regard- less of …


Izvestiia As A Mirror Of Russian Legal Reform, Frances H. Foster Nov 1993

Izvestiia As A Mirror Of Russian Legal Reform, Frances H. Foster

Vanderbilt Journal of Transnational Law

In this Article, Professor Foster explores the breakdown of legal authority in post-Soviet Russia by examining the experience of the Russian newspaper Izvestiia. The author recounts the power struggles between the Russian president and the parliament, each seeking to exercise sole control over the destiny of Izvestiia and of post-Soviet Russia. Professor Foster argues that Izvestiia's battle for survival is merely symptomatic of the overall structural, procedural, and attitudinal obstacles to Russian legal reform in the post-Soviet era. The author concludes that the key to successful establishment of a stable, democratic, law-based state is a fundamental reconstitution of Russian legal …


Provisional Measures In The Inter-American Human Rights System: An Innovative Development In International Law, Jo M. Pasqualucci Nov 1993

Provisional Measures In The Inter-American Human Rights System: An Innovative Development In International Law, Jo M. Pasqualucci

Vanderbilt Journal of Transnational Law

In this Article, Professor Pasqualucci examines the developing jurisprudence of provisional measures in the Inter-American human rights system. Through the adoption of provisional measures, a human rights court may order a state to protect persons who are in danger of imminent death or torture. The author first provides an overview of the Inter-American system of human rights. She then describes the historical background of the jurisprudence of provisional measures in the International Court of Justice and the European human rights system, which served as models for provisional measures in the developing Inter-American system. Finally, she analyzes the use of provisional …


Due Process Rights Of Parents And Children In International Child Abductions, Dorothy C. Daigle Nov 1993

Due Process Rights Of Parents And Children In International Child Abductions, Dorothy C. Daigle

Vanderbilt Journal of Transnational Law

Rising divorce rates in recent years have led to increasingly frequent abductions of children by one parent away from the other parent. Often, abducting parents move the children to different jurisdictions in which the parents believe they can obtain a more favorable decision on custody. To remedy this problem, twenty-nine nations joined in 1980 to adopt the Hague Convention on the Civil Aspects of International Child Abduction. This Convention mandates the immediate return, upon request, of the abducted child to the state of habitual residence of the child. The Convention includes several limited exceptions to this mandate, applicable at the …


Trade, Intellectual Property, And The Development Of Central And Eastern Europe: Filling The Gatt Gap, Anne D. Waters Nov 1993

Trade, Intellectual Property, And The Development Of Central And Eastern Europe: Filling The Gatt Gap, Anne D. Waters

Vanderbilt Journal of Transnational Law

A major obstacle encountered by the formerly Communist states of Central and Eastern Europe as they convert to market economies is the lack of necessary capital. To raise that capital, these states are largely dependent on foreign investors. Inadequate protection of intellectual property in the formerly Communist states, however, may deter foreign investment. This Note examines Central and Eastern Europe's need for capital and the effect that the quality of intellectual property protection may have on its ability to obtain capital. The Author concludes that, in order for the new economies to survive, not only must the states of Central …


Fee Shifting And Incentives To Comply With The Law, Keith N. Hylton Oct 1993

Fee Shifting And Incentives To Comply With The Law, Keith N. Hylton

Vanderbilt Law Review

Law and economics is a top-heavy discipline, in the sense that it is largely theoretical. Empirical tests of its claims have been carried out only recently, and a great deal remains to be done. The larger part of the recent wave of empirical law and economics research, however, examines the litigation process. This research has focused on the frequencies with which lawsuits are brought and with which they are settled. Surprisingly, empirical researchers have given little attention to the theoretical literature that makes predictions concerning incentives to comply with legal rules and the optimality of compliance equilibria. This lack of …


Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer Oct 1993

Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer

Vanderbilt Law Review

Numerous writers have proposed modifying traditional tort rules to permit plaintiffs to recover from a defendant who contributed to the risk of causing the plaintiff's harm without proving that the defendant actually caused the harm. These proposals would determine recovery by multiplying the plaintiff's total damages by the percentage chance that the defendant caused the damages, thereby giving her a portion of her damages.

Although these proposals for proportional liability take many forms, they may be divided into three major categories. The "proportional damage recovery" category would permit a plaintiff to recover a portion of her damages only after she …


From Legitimacy To Logic: Reconstructing Proxy Regulation, Jill E. Fisch Oct 1993

From Legitimacy To Logic: Reconstructing Proxy Regulation, Jill E. Fisch

Vanderbilt Law Review

On October 16, 1992, after a comprehensive review of its system of proxy regulation and after two separate amendment proposals that drew more than 1700 letters of comment from the public, the Securities and Exchange Commission (the "Commission" or the "SEC") voted to reform the federal proxy rules. The reforms were "intended to facilitate shareholder communications and to enhance informed proxy voting, and to reduce the cost of compliance with the proxy rules for all persons engaged in a proxy solicitation.' The SEC explained the amendments by stating that the rules were "impeding shareholder communication and participation in the corporate …


Liability For Improper Maintenance Of Life Support: Balancing Patient And Physician Autonomy, Steven I. Addlestone Oct 1993

Liability For Improper Maintenance Of Life Support: Balancing Patient And Physician Autonomy, Steven I. Addlestone

Vanderbilt Law Review

During the past decade, right to die cases rose to the forefront of both public and judicial attention. These cases primarily focused on defining an individual's right to stop maintenance medical care' or on the rights of a guardian to discontinue treatment of an incompetent patient. Liability concerns centered on potential civil or criminal liability for hospitals and physicians that effectuated the wishes of a patient or her family. Today, with the rights of individuals relatively well established, it is important to consider those situations in which a health care provider does not comply with an individual's wish to terminate …


Childhood Abuse As A Mitigating Factor In Federal Sentencing: The Ninth Circuit Versus The United States Sentencing Commission, Jean H. Shuttleworth Oct 1993

Childhood Abuse As A Mitigating Factor In Federal Sentencing: The Ninth Circuit Versus The United States Sentencing Commission, Jean H. Shuttleworth

Vanderbilt Law Review

Prior to the enactment of the Federal Sentencing Guidelines in 1987, sentencing courts routinely considered an offender's background and personal characteristics when imposing a sentence.' Today, how- ever, judges strain to exercise their discretion in a sentencing structure that focuses primarily on the offense committed and discourages consideration of a defendant's personal history. Although judicial departures from the formal sentencing structure are permissible in certain circumstances, discretionary departures based on a defendant's background and personal characteristics consistently have met opposition by the United States Sentencing Commission. This opposition has led to the Commission's adoption of more restrictive policies governing the …


Theories Of Poetry, Theories Of Law, Lawrence Joseph Oct 1993

Theories Of Poetry, Theories Of Law, Lawrence Joseph

Vanderbilt Law Review

I write poetry." Also, since 1976, when I was admitted to practice before a state bar, I have served as a law clerk for a justice of a state supreme court, practiced, and mostly taught law. About the time that I began law school, while I was writing poems that would appear in my first book, an extraordinary change in jurisprudence began to occur, one which focused on legal language as something more than a medium for conveying singular meaning. This legal theory has become as important as any since legal realism. Because I also have written essays and re- …


"Property" In The Fifth Amendment: A Quest For Common Ground In The Maze Of Regulatory Takings, David C. Buck Oct 1993

"Property" In The Fifth Amendment: A Quest For Common Ground In The Maze Of Regulatory Takings, David C. Buck

Vanderbilt Law Review

In 1922, the Supreme Court embarked on its first decision to protect property owners from unbridled, uncompensated government regulation. Prior to Pennsylvania Coal Co. v. Mahon, the courts applied the Just Compensation Clause of the Fifth Amendments only to "'direct appropriation[s]' of property ... or the functional equivalent of a 'practical ouster of [the owner's] possession.' " Mahon established that governmental regulation that affects an owner's use of his land may constitute a taking under the Fifth Amendment. In Mahon, Justice Holmes recognized the need for constitutional limits on the government's power to impair certain rights inherent in the ownership …


The Commercial Real Estate Laws Of The People's Republic Of China And Shenzhen: An Overview, David S. Kerzner Oct 1993

The Commercial Real Estate Laws Of The People's Republic Of China And Shenzhen: An Overview, David S. Kerzner

Vanderbilt Journal of Transnational Law

This Article surveys the changes in real estate laws that have occurred in China since 1980. It provides a comprehensive and specific overview of the foreign investment process, which should prove particularly useful to United States investors. The Article first provides general background on the evolution of Chinese real estate law, focusing on the granting and subsequent alienation of land use rights, as well as the recent development in the area of large parcels of land. The Article then examines the current state of real estate law in Guangdong Province, specifically in Shenzhen, and explains details such as transfer and …


Deportation And Transfer Of Civilians In Time Of War, Jean-Marie Henckaerts Oct 1993

Deportation And Transfer Of Civilians In Time Of War, Jean-Marie Henckaerts

Vanderbilt Journal of Transnational Law

In this Article, the Author discusses the international law prohibiting the deportation and transfer of civilians during times of war. The Author first focuses on Article 49 of the Fourth Geneva Convention, describing its genesis and its character as customary international law. The Author examines several specific instances of illegal deportations in Kuwait, the former Yugoslavia, and the Israeli-occupied territories, and discusses the application of Geneva IV to these situations. He concludes that more should be done to enforce international law prohibiting the transfer of civilians during times of war and to punish states for engaging in massive deportation.


Preventing The Theft And Illegal Export Of Art In A Europe Without Borders, Kimberly A. Short Oct 1993

Preventing The Theft And Illegal Export Of Art In A Europe Without Borders, Kimberly A. Short

Vanderbilt Journal of Transnational Law

The opening of internal borders within the European Community presents tremendous opportunity for European economic growth. Yet with all the potential benefits come many problems. Increased illegal art trafficking is one of these problems. This Note examines European treaties, laws of the individual EC Member States, and Community-wide treaties and regulations designed to prevent the theft and illegal export of art. The Note discusses how the differing interests of the Member States have prevented agreement on legislation to protect art and resulted in measures inadequate to protect Europe's vast art treasures. After analyzing the latest EC regulatory attempt to protect …


Protection, Not Protectionism: Multilateral Environmental Agreements And The Gatt, Betsy Baker Oct 1993

Protection, Not Protectionism: Multilateral Environmental Agreements And The Gatt, Betsy Baker

Vanderbilt Journal of Transnational Law

In this Article, Dean Baker examines the compatibility of multilateral environmental agreements with the provisions of the General Agreement on Tariffs and Trade (GATT). The author discusses the key provisions of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste, the Montreal Protocol on Substances that Deplete the Ozone Layer, the United Nations Framework Convention on Climate Change, and the GATT. The author then reviews the conflict between unilateral environmental protection and open and free trade under the GATT. The author concludes the collective interests represented by international environmental agreements, and the agreements themselves, should provide a …


The Environmental Laws And Policies Of Taiwan: A Comparative Law Perspective, Dennis T. Tang Oct 1993

The Environmental Laws And Policies Of Taiwan: A Comparative Law Perspective, Dennis T. Tang

Vanderbilt Journal of Transnational Law

This Article discusses the development of environmental regulation and preservation in Taiwan in light of United States environmental law. The Article begins with a discussion of how few measures have been enacted to protect the Taiwanese environment. It then illuminates some of the problems with the Taiwanese environmental regulations that do exist. According to the author, some of these problems include: ambiguous and conflicting goals enunciated in the legislation; political pressures on the authorities influencing environmental policies; poor enforcement mechanisms; a legislative bias in favor of regulating new sources of pollution and against enforcing regulations in the case of old …


Case Digest, Journal Staff Oct 1993

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

This Case Digest provides brief analyses of cases that represent cur-rent aspects of transnational law. The Digest includes cases that establish legal principles and cases that apply established legal principles to new factual situations. The cases are grouped in topical categories and references are given for further research.


Residential Mortgages Under Chapter 13 Of The Bankruptcy Code: The Increasing Case Against Cramdown After "Dewsnup V. Timm", David A. Wisniewski May 1993

Residential Mortgages Under Chapter 13 Of The Bankruptcy Code: The Increasing Case Against Cramdown After "Dewsnup V. Timm", David A. Wisniewski

Vanderbilt Law Review

Congress designed Chapter 13 to allow individuals an extended period of time to pay their debts so that they may support themselves and their dependents while repaying their creditors." Chapter 13 bankruptcy is more favorable to debtors than a straight liquidation under Chapter 7 because Chapter 13 debtors may keep all of their assets while Chapter 7 debtors must surrender most of their assets to generate funds with which to pay their creditors. A Chapter 13 debtor also benefits by avoiding the stigma and less favorable credit rating that accompanies a liquidating bankruptcy.s Chapter 13's benefit to creditors is also …


Reformist Myopia And The Imperative Of Progress: Lessons For The Post-Brown Era, Donald E. Lively May 1993

Reformist Myopia And The Imperative Of Progress: Lessons For The Post-Brown Era, Donald E. Lively

Vanderbilt Law Review

Over the course of two centuries, constitutional law has evolved as both a source and ratification of moral development. The processes of constructing and interpreting the nation's charter have established a unique window through which it is possible to glimpse the fundamental concerns of bygone and present eras and to observe the competition of values and ordering of priorities that define the society. A survey of the complete record discloses innumerable conflicts of law and morality that have arisen, been resolved, and exist now primarily as historical reference points. It also reveals significant business that remains unfinished. Even as the …


A Theory Of The Regulation Of Debtor-In-Possession Financing, George G. Triantis May 1993

A Theory Of The Regulation Of Debtor-In-Possession Financing, George G. Triantis

Vanderbilt Law Review

The profile of Chapter 11 of the Bankruptcy Code in public consciousness has surged recently. Other than the automatic stay on the enforcement of claims, the most publicized feature of bankruptcy reorganizations is debtor-in-possession (DIP) financing. Indeed, along with the bankruptcy stay, DIP financing is the motivation for many Chapter 11 filings. Under Section 364 of the Code, a firm in bankruptcy (the debtor in possession) can finance its ongoing operations and investments by issuing new debt that enjoys any one of various levels of priority, all of which rank higher than the firm's prepetition unsecured debt.' The debtor's financing …


Unequal Racial Access To Kidney Transplantation, Ian Ayres, Laura G. Dooley, Robert S. Gaston May 1993

Unequal Racial Access To Kidney Transplantation, Ian Ayres, Laura G. Dooley, Robert S. Gaston

Vanderbilt Law Review

Access to medical care is an issue of acute and increasing importance in the United States, a country in which the most promising of ground-breaking technologies may be available to only the privileged few. Although debate about the problem of unequal access to medical care typically centers on financial obstacles to advanced therapies and the obvious inequity of allowing patients' ability to pay to drive treatment decisions, issues of equitable access for patients of both genders and all racial and ethnic backgrounds increasingly have come into focus.

These concerns about equitable access animate the ongoing debate about how government should …


It's Not Easy Bein' Green: The Psychology Of Racism, Environmental Discrimination, And The Argument For Modernizing Equal Protection Analysis, Edward P. Boyle May 1993

It's Not Easy Bein' Green: The Psychology Of Racism, Environmental Discrimination, And The Argument For Modernizing Equal Protection Analysis, Edward P. Boyle

Vanderbilt Law Review

More than 120 years have passed since the states ratified the Fourteenth Amendment, making equal protection of the laws a constitutional right for all citizens. Since the Amendment's passage, courts and academics have struggled to define exactly what government actions are prohibited by the Equal Protection Clause. Courts and scholars generally have understood equality to mean that similar groups should be treated similarly. This definition recognizes that differences exist be- tween people and that ensuring that all people are treated equally in spite of these differences would inhibit progress. The United States Supreme Court, however, has not interpreted the Clause …


The Nature And Constitutionality Of Stalking Laws, Robert A. Guy, Jr. May 1993

The Nature And Constitutionality Of Stalking Laws, Robert A. Guy, Jr.

Vanderbilt Law Review

In 1989, an obsessed fan shot and killed actress Rebecca Schaeffer at the front gate of her Los Angeles apartment.' Soon thereafter, in unrelated incidents, five Orange County women were slain at the hands of their intimate partners. All of the killings shared two common attributes: the killers had stalked their victims incessantly, and the justice system had been unable to intervene.

Suddenly conscious of the inadequacy of current law, the California legislature responded in 1990 by creating the nation's first stalking law." The statute criminalizes the repeated harassment or following of an- other person in conjunction with a threat. …