Law Commons^™

Implications Of The Single European Act On European Community Law-Making: A Modest Step Forward, Barbara C. Potter

Vanderbilt Journal of Transnational Law

In this Article, Ms. Campbell Potter discusses the interaction of the European Community (EC) institutions and the effect the Single European Act (SEA) will have on EC law-making. Specifically, the author notes that the SEA provisions for expanded use of the qualified majority vote and the new cooperation procedure for passage of legislation have changed the balance of power among EC institutions and should facilitate enactment of EC legislation. Ms. Campbell Potter believes that the SEA will continue to be successful as long as Member States do not recklessly invoke "vital national interest" veto powers and as long as the …

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 Resurgence Of The International Will: A Call For Federal Legislation, David Quam

Vanderbilt Journal of Transnational Law

Recent Development--

In August 1991, eighteen years after diplomats and scholars completed the Convention Providing a Uniform Law on the Form of an International Will (Washington Convention), the United States Senate consented to ratification. Before the Washington Convention enters into force, however, the United States Congress must enact federal legislation that requires each of the fifty states to recognize the Convention and its prescribed form of an international will.

The Washington Convention is the result of the Diplomatic Conference on Wills which convened in Washington, D.C., in October 1973. Its primary objective is to provide testators with a common means …

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 …

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. …

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 …

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 …

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 …

Procedure As A Guarantee Of Democracy: The Legacy Of The Perestroika Parliament, Frances H. Foster

Vanderbilt Journal of Transnational Law

In this Article, the author chronicles the rise and fall of the "perestroika parliament." While Gorbachev's reforms were ultimately unsuccessful in producing effective democratic representation, the author believes that the history of these reforms provides some valuable lessons for post-Soviet Russia. Specifically, Professor Foster concludes that current reformers in Russia should learn from the failed perestroika parliament that a democratic, "rule-of-law" state requires uniform lawmaking procedures with constitutional safeguards to guarantee their integrity.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Extraterritorial Employment Standards of the United States: The Regulation of the Overseas Workplace

By James Michael Zimmerman

New York, New York: Quorum Books, 1992. Pp.206.

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Fact-Finding before International Tribunals

Edited by Richard B. Lillich

Irvington-on-Hudson, New York: Transnational Publishers Inc., 1992, Pp. 338.

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International Human Rights Law in the Commonwealth Caribbean

Edited by Angela D. Byre and Bevereley Y. Byfield

Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991. Pp. 398.

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 …

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 …

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 …

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. …

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, …

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 …

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 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 …

Taxing Gains At Death, Lawrence Zelenak

Vanderbilt Law Review

No abstract provided.

State Restrictions On Violent Expression: The Impropriety Of Extending An Obscenity Analysis, Jessalyn Hershinger

Vanderbilt Law Review

A group of minors allegedly attacked a nine-year-old girl at a San Francisco beach and "artificially raped" her with a bottle. The minors attacked the girl after watching and discussing a television network movie that portrayed a similar rape. The victim sued the network, claiming that it was negligent in airing the program.' In Miami Beach, a teenage boy shot and killed his eighty-three- year-old neighbor. Following his conviction, the minor sued three television networks for damages, alleging that a decade of viewing extensive television violence had incited him to imitate the acts that he had seen. Nineteen-year-old John McCollum …

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 …

Third Party Assignment, Statutes Of Limitation, And The Tax Refund Offset Program: Breathe A Little Easier Student Deadbeats, The Fifth Circuit Is On Your Side, Michael S. Smith

Vanderbilt Law Review

The economic downturn of the early 1990s has brought with it a dramatic increase in the number of defaults on student loans.' Legislators have thrashed about trying to plug the collection leaks with a myriad of legislative proposals. Despite this congressional movement, the United States Court of Appeals for the Fifth Circuit recently removed another rock from the dike of federal regulations that prevents the student loan program from completely drowning in unpaid debt. In Grider v. Cavazos, the Fifth Circuit held that Department of the Treasury (Treasury Department) regulations prohibit the Internal Revenue Service (IRS) from offsetting a delinquent …

In The Wrong Place, At The Wrong Time: Problems With The Inter-American Court Of Human Rights Use Of Contentious Jurisdiction, Michael J. Corbera

Vanderbilt Journal of Transnational Law

The Inter-American region has a history of widespread human rights abuse. To combat this problem the Organization of American States has developed a regional system for the protection of human rights. The system's adjudicatory body is the Inter-American Court of Human Rights (the Court). In recent years the Court has expanded its power through its exercise of contentious jurisdiction. Certain factors, however, that are unique to the Inter-American region weigh against the Court's use of contentious jurisdiction.

Tracing the development of the Inter-American human rights system in general and the Court in particular, this Note evaluates the Court's powers and …

Customary Practice And The People's Voice: Separation Of Powers And Foreign Affairs, Harold G. Maier

Vanderbilt Journal of Transnational Law

CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS

By Louis Henkin

New York: Columbia University Press, 1990. Pp. viii, 125

This short book brings to bear Professor Henkin's vast experience as a teacher and scholar in United States foreign relations law on a contemporary examination of constitutional separation of powers principles in determining the appropriate roles of the three federal governmental branches in the conduct of foreign affairs. In this context, the author asks, "Is our two-hundred year old constitution satisfactory for its third century?" After an excursion through the principal issues most germane to an answer, he concludes that "there is no …

Common Misconceptions: The Function And Framework Of "Trade Or Business Within The United States", Nancy H. Kaufman

Vanderbilt Journal of Transnational Law

In this Article, Professor Kaufman examines the administrative and jurisdictional functions of the Internal Revenue Code's term "trade or business within the United States" in the taxation of foreign persons' income and the existing framework established for the term's interpretation. The author contends that the courts, by relying on two common misconceptions of the term, have made the term's application unpredictable. The author further believes that defining the term according to its functions would serve United States tax policy and economic interests. This definition would focus primarily on facts indicating an ongoing commitment to participation the United States economy. The …

The Movement Toward Statute-Based Conspiracy Law In The United Kingdom And The United States, Kenneth A. David

Vanderbilt Journal of Transnational Law

A single criminal charge of conspiracy, because it simultaneously involves an inchoate as well as a substantive offense, is characterized by a duality that for years has created confusion and uncertainty as to the proper prosecution and punishment for the crime. The author of this Note places responsibility for this confusion primarily on the judges whose rulings have produced a highly incoherent body of common law and secondarily on the complacent legislatures that have allowed judicial interpretation to shape conspiracy law in a haphazard manner.

The Note compares the approaches to conspiracy law taken by the United Kingdom and the …

Navigating The Minefields Of Russian Joint Venture Law And Tax Regulations: A Procedural Compass, Christopher Osakwe

Vanderbilt Journal of Transnational Law

In this Article, Professor Osakwe explores the precarious field of Russian joint venture law and tax regulation. The author gives detailed accounts of the major laws, discusses their evolution, and projects their future course. Additionally, the author notes the continuing influence of USSR law on current Russian joint venture practice. Throughout his analysis, the author provides specific and pragmatic advice for businesses and entrepreneurs considering joint ventures in Russia.

J.L. Brierly And The Modernization Of International Law, Carl Landauer

Vanderbilt Journal of Transnational Law

In this Article, the author provides an analysis of a classic of international law, The Law of Nations, by J.L. Brierly. The author describes Brierly as an international legal scholar whose modernization of international law involves an emphasis on fact and complexity, an emphasis that is ultimately little more than a gesture. The author then examines the narrative structure of The Law of Nations and indicates the normative messages disclosed in Brierly's telling of the story of international law. Finally, the author describes Brierly's effort to describe international law as occupying a political realm while Brierly's evolutionary optimism made him …

Tobacco Proves Addictive: The European Community's Stalled Proposal To Ban Tobacco Advertising, Jennifer A. Lesny

Vanderbilt Journal of Transnational Law

This Note examines the recent initiative to ban tobacco advertising within the European Community. The Note first addresses the European Commission's proposed directive, exploring the Commission's stated justifications as well as the opposing member states' procedural and legal objections. This Note then analyzes the European Community debate by comparing it to the United States movement to ban tobacco advertising. The author concludes that, like its United States counterpart, the European proposal is ill-fated, and that failure to reach a consensus on controversial proposals such as the tobacco advertising ban seriously undermines completion of a true internal market envisioned in the …