Law Commons^™

The Right To Be A Recalcitrant Union Member, Neil F. Castaldo

Vanderbilt Law Review

In 1954, the United States Supreme Court considered the problem of union discipline in the case of Radio Officers' Union v. NLRB. The Court clearly stated that the policy of the National Labor Relations Board (NLRB) insures the right of each employee who chooses to join a union to be a "good, bad, or indifferent" member. Although the validity of this phrase seems to be generally accepted, it has never been enforced as an affirmative right. The purpose of this Note is to analyze the embryonic right to be a recalcitrant union member. Since most studies have examined this area …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Monopolies--Merger of Firm with a Potential Competitor that May Enter the Market by Toe--Hold Acquisition Violates Section 7 of Clayton Act

Antitrust--Private Antitrust Actions Against Air Polluters--Commercial Relationship Between Litigants Not Necessary to Maintain an Action for Violation of Section 1 of Sherman Act

Constitutional Law--Establishment Clause--Tax Exemption for Property Used Solely for Religious Purposes Held Constitutional

Constitutional Law--Voting--Durational Residency Requirement Violates Equal Protection Clause

Creditors' Rights-Attachment-Prejudgment Attachment of Chattels Without Prior Notice and Hearing Violates Due Process Clause of Fourteenth Amendment

Criminal Procedure--Probation Revocation-Revocation of Probation Without a Limited Hearing Violates Due Process Clause of the Fourteenth Amendment

Criminal …

Representation For The Poor In State Rulemaking, Allan Ashman

Vanderbilt Law Review

After a violent summer of urban unrest and civil disorder, President Johnson established the National Advisory Commission on Civil Disorders in 1967 to find out what happened in our nation's cities, why it happened, and to suggest ways to prevent it from occurring again. One of the findings of the Commission was that from the vantage point of the poor ghetto resident, local government was distant and unconcerned.For the poor person, particularly the poor black ghetto resident, the possibility for effective change either in his personal life style or in the political system appeared remote.' Reflecting upon this gulf between …

"Fair Market Value," "Just Compensation," And The Constitution: A Critical View, W. Harold Bigham

Vanderbilt Law Review

It has become almost an article of faith that "fair market value"constitutes the only fair and workable measure of damages for a landowner whose real property has been taken for public use. The courts apply it woodenly;' the magic words are solemnly intoned to jurors, commissioners, and arbitrators. Even the learned scholars in the field give it at least implicit recognition. Moreover, it continues to flourish despite widespread public dissatisfaction with both the substantive test for damages and the procedures through which the land is obtained. The taking of private property for the federal interstate highway and urban renewal programs, …

Boys Markets And National Labor Policy, Stephen C. Vladeck

Vanderbilt Law Review

In 1962, the Supreme Court held in Sinclair Refining Co. v.Atkinson' that section 4 of the Norris-LaGuardia Act barred federal courts from enjoining union violations of no-strike clauses in collective bargaining agreements. Since Sinclair, violations of this type have been the subject of considerable discussion, but have resulted in little litigation. The number of man days lost as a result of no-strike clause violations is minimal and the frequency of these violations is so small that it is difficult to imagine that they have any great influence on the course of industrial relations. Nevertheless, lovers of symmetry have argued that …

Law Reform And Legal Education, Robert E. Keeton

Vanderbilt Law Review

Painfully slow as the mills of law reform grind, they have moved faster in our generation than in most. This appraisal may seem overly generous to our own day when we reflect on the difficulties and delays encountered in achieving some particular reform. But if we measure progress in another way--comparing what has happened in the last dozen years with what happened in other time periods of similar length--differences emerge. The most easily documented difference concerns the performance of appellate courts of last resort in reforming private law by candidly overruling precedents. In the last dozen years, there have been …

Mental And Nervous Injury In Workmen's Compensation, Arthur Larson

Vanderbilt Law Review

"[H]ow could it be real when. . .it was purely mental?" This poignant judicial cry out of the past, which I occasionally quote to put down my psychiatrist friends, contains the clue to almost all of the trouble that has attended the development of workmen's compensation law related to mental and nervous injuries. This equation of "mental" with "unreal," or imaginary, or phoney, is so ingrained that it has achieved a firm place in our idiomatic language. Who has not at some time, in dismissing a physical complaint of some suffering friend or relative, airily waved the complaint aside by …

Neither Pollyanna Nor Cassandra, But Positive Commitment To Human Values, Jefferson B. Fordham

Vanderbilt Law Review

To me the positive message of the paper is that we should view our condition with a sense of history and a sense of humor and, in that perspective, dwell more upon the good that we perceive in ourselves, our institutions, and our performance. That is fine, but it does not tell us enough. We know that in all ages man has been in no wise more conspicuous than in his inhumanity to man. The record of torture and slaughter during the Crusades and the Inquisition, movements associated with religion, darkens the pages of history.What must be noted is that …

Legal Education: A More Optimistic View, Robert B. Mckay

Vanderbilt Law Review

While few would disagree with Dean Forrester's statement that"America is now in the midst of an attempted revolution," several questions naturally arise. Dean Forrester does not identify the nature and goals of the "attempted revolution," but the inference is that he disapproves. One wonders whether he objects to change because it challenges the status quo; whether he disagrees with the direction of the proposed change; or whether he opposes the method, particularly the abruptness, with which change is being forced upon us. Each possibility merits response.

Change Versus the Status Quo. It would be unfair to Dean Forrester to suggest …

On Dissent, Violence, And The Intellectual, Page Keeton

Vanderbilt Law Review

If I have properly assessed the meaning of Dean Forrester's comments, he stated that: (1) America is now in the midst of an attempted revolution, an attempt to create a new society by force and violence; (2) war, race relations, poverty, environment, and the other festers in our society, while great problems, are not the real causes of the discontent; (3) the attempted revolution is the product of a generation of university teaching and writing which has created the intellectual atmosphere and the state of mind that sustain the conflict. I respectfully dissent while recognizing at the same time the …

Book Notes, Law Review Staff

Vanderbilt Law Review

CONGRESS AND THE PUBLIC TRUST Report of the Association of the Bar of the City of New York Special Committee on Congressional Ethics New York: Atheneum, 1970. Pp. xxvii, 351. $8.95.

How TO TALK BACK TO YOUR TELEVISION SET By Nicholas Johnson Boston: Atlantic Monthly Press, 1970. Pp. ix, 228. $5.75.

THE QUALITY OF THE URBAN ENVIRONMENT Edited by Harvey S.Perloff Washington: Resources for the Future, Inc., 1969. Pp. xiii, 332.$6.50.

WELFARE MEDICAL CARE: AN EXPERIMENT By Charles H. Goodrich, Margaret C. Olendzki, and George G. Reader Cambridge: Harvard University Press, 1970. Pp. viii, 343. $7.00.

Law Students And A Constructive Approach To The Future Of America, John W. Wade

Vanderbilt Law Review

In years past, many intellectuals adhered to a theory of laissez faire. They believed that the way to maintain our economic system in good health was to keep our government and laws from interfering with its natural working. In those days, judges did not make law; they discovered through legal reasoning what the law was and what it had always been. In both fields the theory fell into decline and disfavor. As Justice Cardozo put it, the concept of laissez faire in law went the way of laissez faire in economics. Another theory, of more ancient origin, is that of …

State Taxation Of Interstate Business-Looking Toward Federal-State Cooperation, Joseph W. Mathews Jr.

Vanderbilt Law Review

This note will review the historical setting of state taxation of interstate commerce and examine the problems created by the diversity of state tax laws. It will further discuss the two different approaches toward solving these problems, investigate the constitutional issues involved in the proposed solutions, analyze their inadequacy, and recommend a federal-state cooperative approach.

The Future Of America And The Role Of Law, Ray Forrester

Vanderbilt Law Review

On August 22, 1970, Dean Ray Forrester of the Cornell Law School presented this paper to the Southeastern Conference of the Association of American Law Schools and the American Association of Law Libraries meeting in Nashville, Tennessee. Because the question of negativism in the academic community seldom has been raised by a highly respected legal educator, the Vanderbilt Law Review felt that these remarks were particularly significant. To test the reaction of other prominent legal educators to Dean Forrester's position, the Vanderbilt Law Review solicited the comments of the deans of various law schools. This paper and the comments that …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Personal Injury--Intent to Injure Is Not a Prerequisite to Recovery for Police Abuse Under Section 1983

===============================

Constitutional Law--Abortion--Statute Prohibiting Abortion of Unquickened Fetus Violates Mother's Constitutional Right of Privacy

===============================

Constitutional Law--Obscenity--State Statute Allowing Injunction Against Dissemination of Allegedly Obscene Material Prior to Adversary Hearing Not Violative of First Amendment

===============================

Constitutional Law--Right of Privacy--State Statute Requiring Disclosure of All Substantial Financial Interests of Public Officials is Overbroad and an Unconstitutional Invasion of Privacy

===============================

Constitutional Law--Sixth Amendment--Admission of Prior Inconsistent Statements as Substantive Evidence Does Not Violate Right of Confrontation

===============================

Criminal Procedure--Search and Seizure--Warrantless Search of …

The Collateral Consequences Of A Criminal Conviction, Thomas R. Mccoy

Vanderbilt Law Review

As a general matter [civil disability law] has simply not been rationally designed to accommodate the varied interests of society and the individual convicted person. There has been little effort to evaluate the whole system of disabilities and disqualifications that has grown up. ...As a result, convicted persons are generally subjected to numerous disabilities and disqualifications which have little relation to the crime committed, the person committing it or,consequently, the protection of society. They are often harsh out of all proportion to the crime committed.

Special Project

Vanderbilt Law Review

No abstract provided.

Private Annuities: Revenue Ruling 69-74-Its Significance,Effect,' And Validity, Robert A. Sams

Vanderbilt Law Review

The private or noncommercial annuity may be defined as the transfer of property from an annuitant-transfer or to a person or organization (referred to as the transferee or obligor) that has not"from time to time"' issued annuity contracts, in exchange for the transferee's unsecured promise to make periodic payments of money for a fixed time or for the life of the annuitant-transferor. Prior to the issuance of Revenue Ruling 69-74,3 both the Internal Revenue Service and the courts had given the private annuity transaction favorable income tax treatment, making it an extremely useful estate planning device. In J. Darsie Lloyd, …

The Williams Amendments: An Evaluation Of The Early Returns, M. Douglas Dunn

Vanderbilt Law Review

The purpose of this note is to examine the judicial interpretation of the Williams Amendments to the Securities Exchange Act. The background of the legislation is outlined to direct attention to its general purpose and to isolate its intended beneficiaries.' A discussion of the actual amendments will provide the informational base necessary for consideration of the recent cases. The critical discussion of the first few cases interpreting the amendments provides the foundation for a suggested approach in applying the available remedies to violators of the Williams Amendments.

Failure To Inform As Medical Malpractice, Stephen L. Edwards

Vanderbilt Law Review

It has long been recognized in American law that a proper patient-physician relationship is founded upon the technical competency of the physician. Before the advent of cases dealing with informed consent, a patient who had given his consent to proposed treatment could recover for injuries only when the physician had acted incompetently in the administration of the treatment. Within the past fifteen years, however, the courts have recognized that the maintenance of a proper patient-physician relationship depends not only upon the technical competency of the physician, but also upon the presence of effective communication between the two parties. Therefore, recent …

Statutes Of Limitations: Their Selection And Application In Products Liability Cases, Larry T. Thrailkill

Vanderbilt Law Review

The development of products liability law has followed an arduous course, especially during the past 70 years.' Many serious problems have arisen out of consumer attempts to obtain redress from manufacturers of defective products. Many of these problems have been resolved, but the problem of selecting and applying the appropriate statute of limitations persists, causing confusion among jurists, legislators, and practitioners and yielding inconsistent and inequitable results. A hypothetical will illustrate the problem and provide a factual context within which the problem may be discussed.

In 1970, Plaintiff is injured and his home destroyed when a gas water heater explodes. …

Book Reviews, Samuel A. Bleicher, Nat. T. Winston, Jr., Dan B. German

Vanderbilt Law Review

Law-Making in the International Civil Aviation Organization By Thomas Buergenthal Syracuse University Press, 1969. Pp. viii,247. $10.50.

reviewer: Samuel A. Bleicher

===============================

The Role of Psychiatry in Law By Manfred S. Guttmacher, M.D. Springfield: Charles C. Thomas, 1968. Pp. ix, 170. $7.50.

reviewer: Nat. T. Winston, Jr., M.D.

====================================

The Development of Political Attitudes in Children By Robert D. Hess & Judith V. Torney Chicago: Aldine Publishing Co., 1967. Pp. xviii, 288. $9.75.

reviewer: Dan B. German

An Evaluation Of Changes In The Medical Standard Of Care, John K. Johnson, Jr.

Vanderbilt Law Review

When a layman is charged with negligence, his conduct is compared with the conduct to be expected from that familiar fictional person-the reasonable and prudent man under the same or similar circumstances.' The defendant's special knowledge or skill is only one of the circumstances to be considered; another is the customary practice of those similarly situated. In the field of medical negligence, however, the conduct of other physicians becomes extremely important. The standard of care to which doctors will be held is determined to a large extent by fellow practitioners.

Book Notes, Law Review Staff

Vanderbilt Law Review

Book Notes --

The Strength of Government--By McGeorge Bundy Cambridge:Harvard University Press, 1968. Pp. xii, 107. $3.75.

Towards a Global Federalism-- By William 0. Douglas. New York: New York University Press, 1968. Pp. xi, 177, $7.95.

Democracy, Dissent, and Disorder: The Issues and the Law-- By Robert F. Drinan New York: The Seabury Press, 1969. Pp. 152,$4.95.

The End of Obscenity: The Trials of Lady Chatterly, Tropic of Cancer, and Fanny Hill --By Charles Rembar New York: Random House, Inc., 1968. Pp. xii, 528. $8.95.

Justice on Trial-- By A.L. Todd Chicago: The University of Chicago Press, 1964. Pp. ix, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Accountants--Auditors--Compliance with General Accounting Principles Not a Complete Defense To Criminal Fraud

==========================

Administrative Law--Standing to Challenge Administrative Actions--Anyone Arguably Protected by Statute May Sue

===========================

Constitutional Law--Abortion--Standard Excepting Abortions Done as "Necessary for the Preservation of the Mother's Life or Health" Held Unconstitutionally Vague

============================

Constitutional Law--Civil Rights--Discrimination by a Third Party in Connection with the Rental of Property Entitles the Injured Party to a Private Right of Damages Under Section 1982

=============================

Constitutional Law--Double Jeopardy--Benton v. Maryland Applies Retroactively to State Criminal Convictions

=============================

Copyright--Unfair Competition--Unauthorized Reproduction of Another's Recording for Resale Violates State Unfair Competition Doctrine

============================= …

The Supreme Court And Fundamental Rights--A Problem Of Judicial Method, James H. Wildman

Vanderbilt Law Review

Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when "liberty" will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy …

Codification And Rule 10b-5, Lewis D. Lowenfels

Vanderbilt Law Review

One of the most interesting as well as controversial areas of the securities laws has been the growth of implied liabilities under section 10(b) of the Securities Exchange Act of 1934 and Rule l0(b)-5 promulgated there under. Any attempt to codify the securities laws would probably include an attempt to codify this entire l0b-5 area.' Once the codifiers move into this area, however, there is a strong likelihood that codification will result in reform and revision, and the present scope as well as the future growth and development of "federal corporation law" under Rule l0b-5 will be profoundly altered.' Thus …

Reform Of The Blue Sky Laws, James S. Mofsky

Vanderbilt Law Review

Some constructive recommendations can be made to generate meaningful reform of the blue sky laws within the states themselves. In this regard, it is important to separate those persons who would be in favor of revision as discussed in this article from those who would be opposed. As previously mentioned, corporate officials and businessmen associated with small firms directly affected by the blue sky laws would probably advocate reform, as would the investment bankers who underwrite such firms. These persons and firms must have substantial political muscle if they are to achieve significant results in the state capitols. Such strength …

Judicial Creation Of Direct Actions Against Automobile Liability Insurers: Shingleton V. Bussey, Jason G. Reynolds

Vanderbilt Law Review

Elizabeth R. Bussey commenced a negligence action in a Florida state trial court against Frances R.B. Shingleton for damages sustained in an automobile mishap. The accident itself was a rather ordinary rear-end collision. Out of the ordinary, however, was the fact that the plaintiff joined as a party defendant Shingleton's liability insurer, Nationwide Mutual Insurance Company. The trial judge, following the insurance policy's non-joinder provisions' and the weight of authority in Florida and elsewhere, granted Nationwide's motion that it be dismissed as a party defendant. Plaintiff appealed this order to the Florida District Court of Appeal on the theory that, …

Book Reviews, Maurice H. Merrill, Tom C. Clark, Anthony Platt

Vanderbilt Law Review

Discretionary Justice: A Preliminary Inquiry

By Kenneth Culp Davis Baton Rouge: Louisiana State University Press. 1969. Pp. xii,233. $8.50

reviewer: Maurice H. Merrill

============================

Gambling and Organized Crime

By Rufus King Washington:Public Affairs Press, 1969. Pp. viii, 239. $6.00

reviewer: Tom C. Clark

==========================

The Throwaway Children

By Lisa Aversa Richette New York:J.B. Lippincott, 1969. Pp. x, 342. $6.95

reviewer: Anthony Platt