Law Commons^™

Loan Guarantees, Israeli Settlements, And Middle East Peace, John Quigley

Vanderbilt Journal of Transnational Law

Professor Quigley questions whether the United States should guarantee loans for Israel in light of Israel's continued occupation of the West Bank. The author believes that Israel's policies of displacing the local Palestinian population and transferring its own population into the West Bank violate the Geneva Civilian's Convention and the accepted principles of belligerent occupation. Consequently, Mr. Quigley argues that any aid the United States gives Israel might facilitate these illegitimate activities and make the aid grant itself an illegal act in the eyes of the international community. Professor Quigley concludes that the United States support of Israel's settlement activities …

Privatization In Germany: A Model For Legal And Functional Analysis, Martin E. Elling

Vanderbilt Journal of Transnational Law

In this Article, Mr. Elling discusses the efforts to restructure and privatize the eastern German economy. The Article focuses on the work of the Trust Agency, or Treuhandanstalt, the agency primary responsible for privatizing property expropriated by the Nazis, the Soviet occupation forces, and the German Democratic Republic. These three regimes expropriated property under varying circumstances, and the Trust Agency now faces the task of determining the appropriate level of compensation or restitution for each property claimant. While the Trust Agency is concerned with awarding just compensation to the rightful property owners, the author notes that Germany designed the privatization …

The European Community After 1992: The Freedom Of Movement Of People And Its Limitations, Ricou Heaton

Vanderbilt Journal of Transnational Law

The end of 1992 has attained significance as the time when borders and barriers to the free movement of people within the European Community (EC) should dissolve. This Note examines those actions taken by EC institutions and member states that are determining the nature of this freedom. This Note explains the major EC institutions and the steps they have taken with respect to freedom of movement. This Note also describes the Schengen Convention, an agreement between , eight EC states that provides a blueprint for dismantling internal borders and strengthening external ones. The author discusses how member states' desire to …

New Zealand's Forgotten Promises: The Treaty Of Waitangi, Jennifer S. Mcginty

Vanderbilt Journal of Transnational Law

This Note presents the problems the Maori, New Zealand's indigenous people, have encountered in seeking enforcement of the Treaty of Waitangi that they signed with Great Britain in 1840. It argues that the Treaty of Waitangi is a valid legal document that should be fully integrated into New Zealand domestic law and afforded protection under international law. The author argues that the Maori met the international law requirements of statehood in 1840 and, therefore, were capable of entering into a treaty with Great Britain. Even if there was no Maori state capable of entering into a treaty, there is analogous …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

No abstract provided.

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 …

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 …

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 …

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 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 …

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. …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

This CASE DIGEST provides brief analyses of cases that represent current 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.

Table of Contents

I. EXTRADITION/FORCIBLE ABDUCTION ...................... 537

II. IMMUNITY FROM ARREST ................................ 538

III.FOREIGN SOVEREIGN IMMUNITY .......................... 539

IV. DISCOVERY/INTERNATIONAL RULES OF JUDICIAL PROCEDURE . 540

Corporate Tax Reform: The Key To International Competitiveness, Ann L. Hardman

Vanderbilt Journal of Transnational Law

This Note responds to "Integration of the Individual and Corporate Tax Systems: Taxing Business Income Once," a study the United States Department of the Treasury released on January 6, 1992. This Note explores some of the issues and concerns of integration and considers arguments in support of and against the United States system of taxation. The latter portion of this Note addresses the relationship between international economics and integration, focusing on the potential for international competitive disadvantage under the classical tax system. The author concludes that Congress should read the Treasury's study as a legislative proposal and act upon it …

International Regulatory Harmonization: A New Era In Prescription Drug Approval, David W. Jordan

Vanderbilt Journal of Transnational Law

Critics of the Food and Drug Administration (FDA) have asserted that the agency's process of reviewing new drugs has long been laden with inefficiency and waste and, as a result, new drugs are not made available to consumers on a timely basis. This Note considers the veracity of this claim by examining the history of prescription drug regulation in the United States and the current procedure by which new drugs are reviewed. This Note also addresses the limited extent to which the FDA has interacted with its foreign counterparts in assessing the safety and efficacy of new drugs and the …

A Not So Distant Mirror: Federalism And The Role Of Natural Law In The United States, The Republic Of Ireland, And The European Community, Paul W. Butler, David L. Gregory

Vanderbilt Journal of Transnational Law

In this Article, Mr. Butler and Professor Gregory discuss the themes of federalism and natural law by examining United States, Republic of Ireland, and European Community cases regarding reproductive freedom, sexual preference, and divorce. The authors find a parallel between Ireland's difficulty in reconciling its Catholic values with the more secular human rights views of the European Community and the religious and social tension caused by federalism in the United States. While courts in both Ireland and the United States have used natural law to justify the level of substantive due process they accord privacy rights, the authors note that …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

SYSTEMS OF CONTROL IN INTERNATIONAL ADJUDICATION AND ARBITRATION

By W. Michael Reisman

Durham and London: Duke University Press, 1992. Pp. 174.

LEGISLATIVE RESPONSES TO TOBACCO USE

By World Health Organization Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991.Pp. 226.

IMPORT AND CUSTOMS LAW HANDBOOK

By Michael J. Horton

New York, New York: Quorom Books, 1992. Pp. 308. $55.00.

THE LAW AND ECONOMIC DEVELOPMENT IN THE THIRD WORLD

Edited by P. Ebow Bondzi-Simpson

New York, New York: Praeger Publishers 1992. Pp. 200. $49.95.

Maritime Jurisdiction And The Secession Of States: The Case Of Quebec, Jonathan L. Charney

Vanderbilt Journal of Transnational Law

In this Article, Professor Charney discusses the maritime boundary delimitation issues that result from the creation of a new state through secession. While the author uses Quebec's maritime boundary concerns as an exemplar, the issues discussed are not unique to Quebec. The author notes that one cannot predict the ultimate resolution of maritime boundary disputes precisely, but certain factors will often affect the outcome. These factors include the geographical configuration of the disputed area, the viability of pre-secession boundaries, historic water claims, the doctrine of uti possidetis, and basic equity. The author concludes that maritime boundaries are so vital to …

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 …

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 …

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, …

International Monetary Law: The Next Twenty-Five Years, Richard W. Edwards, Jr.

Vanderbilt Journal of Transnational Law

In this Article, Professor Edwards considers possible developments in international monetary law over the next twenty-five years. The author begins by discussing some formative events for international monetary law throughout the last twenty-five years, and he notes that unforeseen political developments can have a dramatic effect on monetary policy, and, therefore; make predicting future policy risky. The author does suggest, however, some policy changes that respond to current issues such as the trend toward currency consolidation, the need to improve public confidence in monetary processes, the need to stabilize the currencies of the states of the former Soviet Union, and …

The Ec Directive On The Legal Protection Of Computer Programs, Linda G. Morrison

Vanderbilt Journal of Transnational Law

The evolution of computer technology has launched questions regarding the proper scope of protection for computer software. The European Community (EC) recently adopted a Council Directive on the Legal Protection of Computer Programs (the Directive), which protects computer software under the copyright paradigm. The path to final adoption of the Directive, however, was marked by debates between diametrically opposed lobbying groups regarding the propriety of a reverse engineering exception to the exclusive right of reproduction. This Note discusses the lobbying efforts that led to a compromise and analyzes the Directive through a comparison to United States law. Next, the Note …

Book Review: The Law And Regulation Of International Finance, Ian F.G. Baxter

Vanderbilt Journal of Transnational Law

The Law of International Finance, as its opening states, revolves around "the law and regulation affecting the raising of finance in the international financial markets." Thus, the book is about a very specialized area of finance and law-an area that has come into prominence, or even existence, only during the last two decades. As a solicitor in a large London firm that does substantial work related to financial business in the London international capital markets, Ravi Tennekoon has had considerable practical experience in legal work related to Eurobond issues and transactions and international syndications. London is, of course, the main …

The Foreign Commerce Clause And The Market Participant Exemption, David E. Dreifke

Vanderbilt Journal of Transnational Law

In this Note, the author argues that, despite the strictures of the Foreign Commerce Clause, under an expansive conception of the market participant exemption, states should be able to place restrictions on the export of state-owned or state-nurtured natural resources. In light of the current trade imbalance between Japan and the United States and by way of example, the author discusses Japan's importation of United States natural resources and the competing interests that argue for and against its continuance. Japan's economic growth, appetite for natural resources, and lack of adequate regard for environmental consequences is well documented. Economists and political …

The Need For An International Criminal Court In The New International World Order, M. Cherif Bassiouni, Christopher L. Blakesley

Vanderbilt Journal of Transnational Law

In this Article, Professors Bassiouni and Blakesley argue that the institution of an international criminal court would provide an effective means of dealing with international problems that are created by or unaddressed in a unilateral or bilateral international system. Rather than deflecting domestic concentration on law enforcement, the proposed tribunal will be a complementary and incremental effort, which will enhance criminal justice enforcement. The authors address several questions concerning the implementation of the tribunal, including questions related to sovereignty and bases for jurisdiction, which crimes will be within the court's jurisdiction, which law will apply to the cases, and practical …

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, …