Law Commons^™

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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- …

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

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 …

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 …

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 …

"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 …

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 …

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

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 …

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 …

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 …

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. …

Introduction: Family Law In The 1990s -- New Problems, Strong Solutions, L. Elizabeth Bowles

Vanderbilt Law Review

The 1992 Presidential campaign was fraught with references to "family values." While Vice President Quayle took on a fictional television character for choosing to have a child out of wedlock," candidate Clinton was vowing support for the Family Leave Bill and other pro- family measures. Although the political rhetoric of the 1992 campaign was partisan in nature, the emphasis placed on the family by the political parties reflects the seriousness of the problems facing the American family in the 1990s. The American family is not the same entity that it was twenty years ago. Now, "nontraditional" families, such as single …

Judicial Review Of Defensive Tactics In Proxy Contests: When Is Using A Rights Plan Right?, Randall S. Thomas

Vanderbilt Law Review

Proxy contests have reemerged recently as an important part of the market for corporate control. After years of indifference to corporate elections, dissident shareholders have turned once again to the ballot box as a means of removing unwanted management. In a surprisingly large number of these battles, the challengers have succeeded in getting all or much of what they wanted."

The resurgence of proxy contests has sparked renewed interest by incumbent managements in developing powerful new defensive tactics in corporate elections. Incumbents' time-honored campaign strategies, such as switching the annual shareholders' meeting date, or restricting the potential candidates who can …

On Telling Stories In School: A Reply To Farber And Sherry, Richard Delgado

Vanderbilt Law Review

It is difficult to evaluate someone who at the same time is evaluating you-putting you under the glass, dissecting your culture, laws, profession, and norms of political fairness.' The outsider's task is formidable enough: first seeing, then addressing, defects in the culture in which all of us, including the outsider, are immersed. But when one sets out, as Daniel Farber and Suzanna Sherry do in a recent article, to come to terms with outsider scholarship fairly and sympathetically, the task's difficulty increases by an order of magnitude.'

Empowered groups long ago established a host of stories, narratives, conventions, and understandings …

Statistical Adjudication: Rights, Justice, And Utility In A World Of Process Scarcity, Robert G. Bone

Vanderbilt Law Review

The institution of adjudication is in a state of great upheaval to- day. Mounting case backlogs and the litigation challenge posed by mass torts are pressuring Congress and courts to experiment with novel adjudication techniques. Some of the results are well-known-case tracking, alternative dispute resolution, greater reliance on settlement, and tighter pretrial screening of cases. Taken together, these changes fore- shadow a major transformation in the practice and theory of adjudication.

This Article focuses on one particularly remarkable proposal for handling large-scale litigation: adjudication by sampling. This approach uses statistical methods to adjudicate a large population of similarly situated cases. …

Renewing The Good Intentions Of Foster Care: Enforcement Of The Adoption Assistance And Child Welfare Act Of 1980 And The Substantive Due Process Right To Safety, Cristina C.-Y. Chou

Vanderbilt Law Review

Foster care. There are probably no two words in the English language that convey more of a sense of good intentions gone bad. Children enter foster care when their own parents fail them. Then they begin a state-sponsored journey through an over- land railroad of foster homes, some run by adults who truly want to help, and others run by scoundrels.'

The purpose of foster care is to provide a temporary safe haven for children whose parents are unable to care for them. Unfortunately, however, the foster care system frequently fails to provide children with stable, secure care, and fails …

Capital Punishment Of Kids: When Courts Permit Parents To Act On Their Religious Beliefs At The Expense Of Their Children's Lives, Janet J. Anderson

Vanderbilt Law Review

Criminal liability of parents who treat their children's illnesses through spiritual means or prayer alone is the subject of increasing debate. When children die as a result of their parents' religious practices, prosecutions for crimes such as felony child endangerment, manslaughter, and murder may follow. Most states have codified some type of religious accommodation statute which provides a criminal liability exemption for parents who engage in spiritual healing or prayer treatment for their sick children instead of seeking traditional medical assistance. The scope, purpose, and language of these statutes, however, vary." Even when statutes appear to be similar in content, …

Buying Fertility: The Constitutionality Of Welfare Bonuses For Welfare Mothers Who Submit To Norplant Insertion, John R. Hand

Vanderbilt Law Review

In 1990, Wyeth-Ayerst Laboratories introduced Norplant, a five- year contraceptive consisting of six capsules that release contraceptive hormones when inserted in a woman's arm. Soon after the introduction of Norplant, a Philadelphia Inquirer editorial column stirred tremendous controversy when the author suggested that Norplant could solve the welfare problem if states would offer welfare mothers incentives to use the device.' Tremendous outrage and cries of racism, fascism and genocide prompted the Inquirer's Editor, Maxwell King, to apologize publicly and retract the editorial.'

Despite the fury, some states have introduced welfare reform bills that would do exactly what the Inquirer editorial …

Help! We've Fallen And We Can't Get Up: The Problems Families Face Because Of Employment-Based Health Insurance, Jeffrey R. Pettit

Vanderbilt Law Review

Steve Tilghman of Birmingham, Alabama knows first-hand the health insurance problems American families face.' Steve's family had adequate health insurance until Steve decided to change careers. After expiration of the eighteen-month extension period COBRA provides, Steve's family could not afford the one thousand dollar monthly premiums necessary to maintain their policy. Steve's epileptic son further complicated his ability to find adequate health insurance. After having no insurance for two months, Steve ultimately was able to find health insurance for only part of his family. Steve had to acquire a separate, unrated policy for his epileptic son. Steve is uncertain about …

The Marginalist Revolution In Legal Thought, Herbert Hovenkamp

Vanderbilt Law Review

For legal policy the two most important scientific ideas of the nineteenth century were Darwinism and marginalism. Both became the starting points for the great revolutions in the social sciences that took place in the 1870s and later. The central principle of Darwinism is the theory of evolution by natural selection. Because nature produces many more offspring than each niche in the environment can accommodate, individuals of a particular species must compete to survive. Purely at random each individual acquires from its parents a set of characteristics that are different from those of any other individual. Those who inherit characteristics …

The Shadow Of The Future: Discount Rates, Later Generations, And The Environment, Daniel A. Farber, Paul A. Hemmersbaugh

Vanderbilt Law Review

If saving a life is worth spending $1 million today, how much should we spend to save a life in twenty years? The answer, according to the federal Office of Management and Budget (OMB), is $150,000. OMB uses a ten percent annual "discount rate" to convert future regulatory costs and benefits into their "present value."' Because government regulation of carcinogens cannot be expected to affect the cancer rate for twenty or thirty years, OMB's choice of discount rates has dramatic implications for regulatory policy. Its choice of discount rates has even greater impact on long-term global environmental issues such as …