Table Of Content

INDEX VOLUME 44 1991 LEADING ARTICLES—AUTHOR INDEX AttHousE, ANN: Tapping the State Court Resource ‘2 Asupown, GERALD G.: Controlling Campaign Spending and the “New Corruption”: ‘Wait- ing for the Court Buarr, Rocer D. & Lanc, Gorpon L.: Albrecht After ARCO: Maximum Resale Price Fix- ing Moves Toward the Rule of Reason . BooxsPan, Puytuis T.: Reworking the Warrant Requirement: Resuscitating the Fourth Amendment Cann, Naomi R.: Civil Images of Battered Women: ‘The Impact of Domestic Violence on Child Custody Decisions Devins, Neat: The Rhetoric of Equality... GIANNELLI, Paut C.: Criminal Discovery, Scientific Evidence, and DNA Gorpon, James D., III: Consideration and the Commercial-Gift Dichotomy McComss, JB: Refining the Itemized Deduction for Home Property Tax Payments .... Puiuirs, MicuakEt J.: Employer Sexual Harassment Liability Under Agency Principles: A Second Look at Meritor Savings Bank, FSB v. Vinson SHELL, G. RicHarp: Opportunism and Trust in the Negotiation of Commercial Contracts: Toward a New Cause of Action WEk ow!7z, Davin S.: Reexamining Trademark Dilution Wor HEN, Kevin J: Two Sides of the Same Coin: The Potential Normative Power of American Cities and Indian Tribes ZACHARIAS, FRED C.: Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecu- tors Do Justice? LEADING ARTICLES—TITLE INDEX ALBRECHT AFTER ARCO: MaximuM RESALE Price Fixinc Moves TowarRD THE RULE oF REa- son: Roger D. Blair & Gordon L. Lang Crviz ImaGEs OF BATTERED WoMEN: THE Impact oF DoMEsTIC VIOLENCE ON CHILD CusTopy Decisions: Naomi R. Cahn CONSIDERATION AND THE COMMERCIAL-GiFT DicHotomy: James D. Gordon III CONTROLLING CAMPAIGN SPENDING AND THE “New CORRUPTION”: WAITING FOR THE COURT: Gerald G. Ashdown CRIMINAL Discovery, SCIENTIFIC EvIDENCE, AND DNA: Paul C. Giannelli EMPLOYER SEXUAL HARASSMENT LIABILITY UNDER AGENCY PRINCIPLES: A SECOND LOOK AT Merrror Savincs Bank, FSB v. Vinson: Michael J. Phillips OPPORTUNISM AND TRUST IN THE NEGOTIATION OF COMMERCIAL CONTRACTS: TOWARD A NEW Cause or Action: G. Richard Shell REEXAMINING TRADEMARK DiLuTIon: David S. Welkowitz REFINING THE ITEMIZED DEDUCTION FOR Home Property Tax PayMENTs: JB McCombs .. REWORKING THE WARRANT REQUIREMENT: RESUSCITATING THE FOURTH AMENDMENT: Phyllis Tue Ruetoric or Equa.ity: Neal Devins STRUCTURING THE ETHICS OF PROSECUTORIAL TRIAL Practice: CAN Prosecutors Do Jus- TicE?: Fred C. Zacharias TAPPING THE StTaTE Court Resource: Ann Althouse Two Sines oF THE SAME Coin: THE PoTENTIAL NORMATIVE POWER OF AMERICAN CITIES AND InpDIAN TriBEs: Kevin J Worthen VANDERBILT LAW REVIEW [Vol. 44:1411 ESSAYS—AUTHOR INDEX Dexcano, Ricnarp: Brewer’s Plea: Critical Thoughts on Common Cause ..... Detcapo, Ricuarp: Our Better Natures: A Revisionist View of Joseph Sax’s Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform .. : Zeppos, Nicuoas S.: People’s Court ESSAYS—TITLE INDEX Brewer’s Puea: CriticaL THOUGHTS ON CoMMON Cause: Richard Delgado Our Better Natures: A REVISIONIST VIEW OF JOSEPH Sax’s PuBLic TRusT THEORY OF Envi- RONMENTAL PROTECTION, AND SOME DARK THOUGHTS ON THE PossIBILITyY OF LAW REFORM: Richard Delgado . :; Peopie’s Court: Nicholas s. Zeppos. REVIEW ESSAY—AUTHOR INDEX Maier, Harotp G.: Baseball and Chicken Salad: A Realistic Look at Choice of Law . REVIEW ESSAY—TITLE INDEX BASEBALL AND CHICKEN Saab: A Reauistic Look at Cuoice or Law: Harold G. Maier... SPECIAL PROJECT Crviz RIGHTS IN THE WORKPLACE OF THE 1990s ........ NOTES—AUTHOR INDEX ALEXANDER, CyntuIA L.: The Defeat of the Civil Rights Act of 1990: Wading Through the Rhetoric in Search of Compromise . Aronowitz, DantzL: Retracing the Antitrust Roots of Section 1972 of the Bank Holding Company Act. Bates, JosEPH HENRY: Out of Focus: The Misapplication of Traditional Equitable Princi- ples in the Nontraditional Arena of School Desegregation (A Case Study of Desegrega- tion in Little Rock, Arkansas) . Beatriz, JAMES R., Jr.: Privacy in the First Amendment: Private Facts and the Zone of Deliberation. BERKOWITZ, JEFFREY S.: Breaking the Silence: Should Jurors Be Allowed to Question Wit- nesses During Trial? Brrrer, MICHAEL ALLEN: The Priority Battle Over Returned and Repossessed Goods: In- ventory Financers Versus Chattel Paper Financers Comer, STEVEN E.: Municipal Liability Under Section 1983: The Rationale Underlying the Final Authority Doctrine 1991] INDEX DILLMAN, JOHN Patrick: Prescription Drug Approval and Terminal Diseases: Desperate Times Require Desperate Measures Foster, MattHew W.: The Parsonage Allowance Exclusion: Past, Present, and Future. . HENDERSON, REESE JOHN, JR.: Addiction As Disability: The Protection of Alcoholics and Drug Addicts Under the Americans with Disabilities Act of 1990 Jackson, Brian: The Lingering Legacy of In Loco Parentis: An Historical Survey and Proposal for Reform JUSTICE, KATHLEEN ELEANOR: There Goes the Monopoly: The California Proposal to Allow Nonlawyers to Practice Law Matiow, Susan Kim: Exclusion of Personal Injury Damages: Have the Courts Gone Too Far? McDowELt, M. Patrick: Limitations Periods for Federal Causes of Action After the Judi- cial Improvements Act of 1990 Nace, ANDREW B.: Market Share Liability: A Current Assessment of a Decade-Old Doc- ParsLey, KATHRYN J.: Constitutional Limitations on State Power to Hold Parents Crimi- nally Liable for the Delinquent Acts of Their Children PaRTEE, PETER STONE: Reversing the Presumption of Employment At Will Pow ey, Susan ELizaBETH: Exploring a Second Level of Parity: Suggestions for Developing an Analytical Framework for Forum Selection in Employment Discrimination Litiga- Warp, JaMEs E., IV: Rule 11 and Factually Frivolous Claims—The Goal of Cost Minimiza- tion and the Client’s Duty to Investigate NOTES—TITLE INDEX Appiction As DisaBiLity: THE PROTECTION OF ALCOHOLICS AND DruG Appicts UNDER THE AMERICANS WITH DisaBiLiTies Act or 1990: Reese John Henderson, Jr. BREAKING THE SILENCE: SHOULD JuRORS BE ALLOWED TO QUESTION WITNESSES DURING TRIAL?: Jeffrey S. Berkowitz CONSTITUTIONAL LIMITATIONS ON STATE PowER TO HOLD PARENTS CRIMINALLY LIABLE FOR THE DELINQUENT AcTs OF THEIR CHILDREN: Kathryn J. Parsley Tue Dereat oF THE Civit Ricuts Act or 1990: WADING THROUGH THE RHETORIC IN SEARCH oF ComPrRoMIsE: Cynthia L. Alexander EXCLUSION OF PERSONAL INJURY DAMAGES: HAvE THE Courts Gone Too Far?: Susan Kim EXPLORING A SECOND LEVEL oF Parity: SUGGESTIONS FOR DEVELOPING AN ANALYTICAL FRAMEWORK FOR ForRUM SELECTION IN EMPLOYMENT DISCRIMINATION LITIGATION: Susan Elizabeth Powley LimITATIONS PERIODS FOR FEDERAL CAUSES OF ACTION AFTER THE JUDICIAL IMPROVEMENTS Act or 1990: M. Patrick McDowell Tue LincerinG Lecacy or In Loco PARENTis: AN HISTORICAL SURVEY AND PROPOSAL FOR Rerorm: Brian Jackson Market SHareE LiaBitity: A CURRENT ASSESSMENT OF A DEcADE-OLD DoctRINE: Andrew B. Municipay LiaBitity UNDER SECTION 1983: THE RATIONALE UNDERLYING THE FINAL AUTHOR- 1ry Doctrine: Steven E. Comer Out or Focus: THE MISAPPLICATION OF TRADITIONAL EQUITABLE PRINCIPLES IN THE Non- TRADITIONAL ARENA OF SCHOOL DESEGREGATION (A Case Stupy OF DESEGREGATION IN LiT- TLE Rock, ARKANSAS): Joseph Henry Bates Tue PARSONAGE ALLOWANCE EXxc.usion: Past, PRESENT, AND Future: Matthew W. Foster PRESCRIPTION DRUG APPROVAL AND TERMINAL DISEASES: DESPERATE TIMES REQUIRE DESPER- ATE Measures: John Patrick Dillman 1414 VANDERBILT LAW REVIEW [Vol. 44:1411 Tue Prioriry BaTTLE Over RETURNED AND REPOSSESSED Goons: INVENYORY FINANCERS Versus CHATTEL Paper Financers: Michael Allen Birrer 1101 PRIVACY IN THE First AMENDMENT: PRIVATE FACTS AND THE ZONE OF DELIBERATION: James RS 2002 OK. or, RO eta. ic Witla « Sacinnta ea AAES wriresd dora Stak PRINS owen 899 RETRACING THE ANTITRUST Roots oF SECTION 1972 oF THE BANK Ho.tpinc Company ACT: Daniel Aronowitz 865 REVERSING THE PRESUMPTION OF EMPLOYMENT AT WILL: Peter Stone Partee 689 RUuLeE 11 AND FacTUALLY FrivoLous CLaims—THE GOAL oF Cost MINIMIZATION AND THE CLI- ENT’s Duty TO INVESTIGATE: James E. Ward, IV 1165 TuerReE Gores THE Monopoty: THE CALIFORNIA PROPOSAL TO ALLOW NONLAWYERS TO PRAC- Tice Law: Kathleen Eleanor Justice 179 RECENT DEVELOPMENT—AUTHOR INDEX MircHe.L, Davin P.: Anticipatory Search Warrants: The Supreme Court’s Opportunity to Reexamine the Framework of the Fourth Amendment RECENT DEVELOPMENT—TITLE INDEX ANTICIPATORY SEARCH WARRANTS: THE SUPREME CouRT’s OPPORTUNITY TO REEXAMINE THE FRAMEWORK OF THE FouRTH AMENDMENT: David P. Mitchell BOOK REVIEWS—AUTHOR INDEX P. Kens: JupiciIAL PowEeR AND REFORM Po.itics: THE ANATOMY OF LOCHNER v. NEw YORK (James W. Ely, Jr.) .... R.A. Posner: THE PROBLEMS OF JURISPRUDENCE (Jason Scott Johnston) BOOK REVIEWS—REVIEWER INDEX Ety, JAMEs W., Jr.: Economic Due Process REVISITED: JUDICIAL POWER AND REFORM PoLuit- ics: THE ANATOMY OF LOCHNER v. NEw York (Paul Kens) .... ‘ JouNnstTon, Jason Scott: Not So Coitp an Eve: RicHarRp PosNER’s PRAGMATISM: THE PROBLEMS OF JURISPRUDENCE (Richard A. Posner) INDEX DIGEST Page references followed by an asterisk (*) are to Leading Articles, Essays, Comments, Responses, and Book Reviews; those followed by a dagger (t) are to Notes; those accompanied by two daggers (tt) are to Recent Developments or the Special Project. ADMINISTRATIVE LAW ANTITRUST LAW Prescription Drug Approval and Terminal Diseases: Desperate Albrecht After ARCO: Maximum Times Req Resale Price Fixing Moves To- sures ..... ward the Rule of Reason 1991] INDEX Retracing the Antitrust Roots of Constitutional Limitations on Section 1972 of the Bank Hold- State Power to Hold Parents ing Company Act Criminally Liable for the De- linquent Acts of Their Chil- CIVIL RIGHTS Addiction as Disability: The Pro- Economic Due Process Revisited: tection of Alcoholics and Drug Judicial Power and Reform Addicts Under the Americans Politics: The Anatomy of with Disabilities Act of 1990. . Lochner v. New York (reviewed The Defeat of the Civil Rights by James W. Ely, Jr.)........ Act of 1990: Wading Through The Parsonage Allowance Exclu- the Rhetoric in Search of Com- sion: Past, Present, and Future Privacy in the First Amendment: Employer Sexual Harassment Li- Private Facts ani the Zone of ability Under Agency Princi- Deliberation ples: A Second Look at Meritor Reworking the Warrant Require- Savings Bank, FSB v. Vinson ment: Resuscitating the Fourth Exploring a Second Level of Par- ity: Suggestions for Developing Tapping the State Court Re- an Analytical Framework for Forum Selection in Employ- ment Discrimination Litigation CRIMINAL LAW Anticipatory Search Warrants: Out of Focus: The Misapplication The Supreme Court’s Opportu- of Traditional Equitable Prin- nity to Reexamine the Frame- ciples in the Nontraditional work of the Fourth Amend- Arena of School Desegregation (A Case Study of Desegrega- tion in Little Rock, Arkansas) Constitutional Limitations on State Power to Hold Parents The Rhetoric of Equality Criminally Liable for the De- COMMERCIAL LAW linquent Acts of Their Chil- Consideration and the Commer- cial-Gift Dichotomy........ ; Criminal Discovery, Scientific Evidence, and DNA Opportunism and Trust in the Negotiation of Commercial Reworking the Warrant Require- Contracts: Toward a New ment: Resuscitating the Fourth Cause of Action Structuring the The Priority Battle Over Re- Prosecutorial. Trial Practice: turned and Repossessed Goods: Can Prosecutors Do Justice?. . Inventory Financers Versus Chattel Paper Financers CRITICAL LEGAL STUDIES Retracing the Antitrust Roots of Our Better Natures: A Revision- Section 1972 of the Bank Hold- ist View of Joseph Sax’s Public ing Company Act Trust Theory of Environmen- tal Protection, and Some Dark CONFLICT OF LAWS Thoughts on the Possibility of Basebali and Chicken Salad: A Realistic Look at Choice of CRITICAL RACE STUDIES Brewer’s Plea: Critical Thoughts CONSTITUTIONAL LAW on Common Cause. Anticipatory Search Warrants: The Supreme Court’s Opportu- EDUCATION LAW nity to Reexamine the Frame- The Lingering Legacy of In Loco work of the Fourth Amend- Parentis: An Historical Survey and Proposal for Reform 1416 VANDERBILT LAW REVIEW [Vol. 44:1411 Out of Focus: The Misapplication Controlling Campaign Spending of Traditional Equitable Prin- and the “New Corruption”: ciples in the Nontraditional Waiting for the Court Arena of School Desegregation The Defeat of the Civil Rights (A Case Study of Desegrega- Act of 1990: Wading Through tion in Little Rock, Arkansas) the Rhetoric in Search of Com- EMPLOYMENT LAW Limitations Periods for Federal Addiction as Disability: The Pro- Causes of Action After the Ju- tection of Alcoholics and Drug dicial Improvements Act of Addicts Under the Americans 1990...... . 1353t with Disabilities Act of 1990.. Municipal Liability Under Sec- The Defeat of the Civil Rights tion 1983: The Rationale Un- Act of 1990: Wading Through derlying the Final Authority the Rhetoric in Search of Com- promise...... Prescription Drug Approval and Employer Sexual Harassment Li- Terminal Diseases: Desperate ability Under Agency Princi- Times Require Desperate Mea- ples: A Second Look at Meritor sures ....... iadeieeh Savings Bank, FSB v. Vinson Exploring a Second Level of Par- INTELLECTUAL PROPERTY ity: Suggestions for Developing Reexamining Trademark Dilution an Analytical Framework for JURISPRUDENCE Forum Selection in Employ- Not So Cold an Eye: Richard ment Discrimination Litigation Posner’s Pragmatism: The Reversing the Presumption of Problems of Jurisprudence (re- Employment at Will viewed by Jason Scott John- ENVIRONMENTAL LAW Our Better Natures: A Revision- LAW AND ECONOMICS ist View of Joseph Sax’s Public Not So Cold an Eye: Richard Trust Theory of Environmen- Posner’s Pragmatism: The tal Protection, and Some Dark Problems of Jurisprudence (re- Thoughts on the Possibility of viewed by Jason Scott John- Law Reform .. ; RE Opportuniem and ‘Trust| in ‘the FAMILY LAW Negotiation of Commercial Civil Images of Battered Women: Contracts: Toward a New The Impact of Domestic Vio- Cause of Action lence on Child haere Deci- sions . LAW AND LITERATURE People’s Court FEDERAL COURTS NATIVE AMERICAN LAW Limitations Periods for Federal Two Sides of the Same Coin: The Causes of Action After the Ju- Potential Normative Power of dicial Improvements Act of American Cities and Indian 1990... Tribes. Tapping the State Court Re- source PROFESSIONAL RESPONSIBILITY Rule 11 and Factually Frivolous FIRST AMENDMENT Claims—The Goal of Cost Privacy in the First Amendment: Minimization and the Client’s Private Facts and the Zone of Duty to Investigate ...... . 1165t Deliberation . 899T Structuring the Ethics of GOVERNMENT AND LEGISLATION Prosecutorial Trial Practice: Addiction as Disability: The Pro- Can Prosecutors Do Justice? . . 45* tection of Alcoholics and Drug There Goes the Monopoly: The Addicts Under the Americans California Proposal to Allow with Disabilities Act of 1990. . 713tt Nonlawyers to Practice Law .. 179t 1991] INDEX SECURED TRANSACTIONS Opportunism and Trust in the The Priority Battle Over Re- Negotiation of Commercial turned and Repossessed Goods: Contracts: Toward a New Inventory Financers Versus Cause of Action ........... 221* Chattel Paper Financers TRIAL PRACTICE AND PROCEDURE TAXATION Breaking the Silence: Should Ju- Exclusion of Personal Injury rors Be Allowed to Question Damages: Have the Courts Gone Too Far?.............. Criminal Discovery, Scientific The Parsonage Allowance Exclu- Evidence, and DNA sion: Past, Present, and Future Exploring a Second Level of Par- Refining the Itemized Deduction ity: Suggestions for Developing for Home Property Tax Pay- an Analytical Framework for Forum Selection in Employ- TORTS ment Discrimination Litigation Market Share Liability: A Cur- Rule 11 and Factually Frivolous rent Assessment of a Decade- Claims—The Goal of Cost Old Doctrine Minimization and the Client’s Municipal Liability Under Sec- Duty to Investigate tion 1983: The Rationale Un- Structuring the Ethics derlying the Final Authority Prosecutorial Trial Practice: Doctrine Can Prosecutors Do Justice?.. 45*