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Full-Text Articles in Law
Labor Law: Requiring Employer To Bargain With Old Union At New Location In “Runaway Shop” Situation Is Beyond Nlrb’S Authority
Duke Law Journal
The Court of Appeals for the District of Columbia has held that the NLRB cannot force an employer who has relocated his plant in order to escape a union to bargain with that union at the new location where the union had not secured a majority position. This note examines the possible remedies that may be available to the Board against such "runaway shops" and evaluates each of them in light of the language and purposes of the National Labor Relations Act.
Application Of The Thin Incorporation Doctrine To The Subchapter S One-Class-Of-Stock Requirement
Application Of The Thin Incorporation Doctrine To The Subchapter S One-Class-Of-Stock Requirement
Duke Law Journal
The Treasury's recent amendment of its regulation regarding the treatment of purported debt obligations as a second class of stock for purposes of Subchapter S election represents a more defensible interpretation of the statute. However, since the regulation calls for an application of the principles of the thin incorporation doctrine to an area in which they are seemingly irrelevant, many Subchapter S corporations may be subjected to excessive penalties. This comment explores the decisional authority preceding the amendment, and examines the propriety of analyzing the one-class-of-stock requirement in terms of thin incorporation precepts.
The Confrontation Of Federal Preemption And State Right-To-Work Laws, Stanley D. Henderson
The Confrontation Of Federal Preemption And State Right-To-Work Laws, Stanley D. Henderson
Duke Law Journal
That Congress in enacting section 14(b) of the National Labor Relations Act authorized the states to adopt "right-to-work" laws banning forms of compulsory unionism otherwise permissable under federal law has never been seriously questioned. In this article the author discusses the more difficult problem of the extent to which section 14(b) does, or should, enable the states to deal with union-security issues irrespective of an elaborate federal regulatory scheme which touches identical or related subject matter.
Securities Regulation: Seventh Circuit Holds That Withdrawable Capital Accounts Are Not Securities Within The Meaning Of The Exchange Act
Duke Law Journal
Relying upon legislative history and the particular characteristics of the accounts, the Seventh Circuit in Tcherepnin v. Knight held that withdrawable capital accounts in a savings and loan association are not "securities" within the ambit of the antifraud provisions of the Securities Exchange Act. This note explores the bases of the court's decision and suggests an alternative resolution which both furthers the purposes of the Act and preserves traditional state regulatory power in the savings and loan area.
Control Of Air Pollution Through The Assertion Of Private Rights, Julian Conrad Juergensmeyer
Control Of Air Pollution Through The Assertion Of Private Rights, Julian Conrad Juergensmeyer
Duke Law Journal
Air pollution is clearly one of the major social problems confronting contemporary American society. Yet the United States is still without an effective federal pollution control program, and those state and local control programs that do exist are largely ineffective. Until government regulation is able to keep the expulsion of air contaminants within tolerable limits, it will be necessary for those seeking to control air pollution to rely upon the assertion of private rights. In this article the author discusses the principal causes of action available to the private pollution controller, and concludes that, although traditional legal concepts may provide …
Learned Treatises As Direct Evidence: The Alabama Experience
Learned Treatises As Direct Evidence: The Alabama Experience
Duke Law Journal
A majority of American jurisdictions refuse to permit the use of learned treatises as direct evidence, reasoning that to do so would violate the rule against hearsay evidence. However, many commentators have contended that, in adopting such a position, these courts have failed to consider the underlying purposes of the hearsay rule. Alabama, which has permitted the introduction of treatises as direct evidence, affords a useful contrast for testing both the rationale of the majority rule and the criticisms of it. It has been the goal of this comment to evaluate the present majority view against the Alabama experience. On …
Federal Taxation: Supreme Court Disapproves Treasury Regulation’S Imposition Of Fractional Or Percentile Share Requirement On Section 2056(B)(5) Marital Deduction
Duke Law Journal
No abstract provided.
Criminal Law: Ineligibility For Parole Is Not Among The “Consequences” Of A Guilty Plea For Purposes Of Federal Rule 11
Duke Law Journal
No abstract provided.
New Concepts In Customer And Territorial Restrictions—The Schwinn And Sealy Doctrines, S. Powell Bridges
New Concepts In Customer And Territorial Restrictions—The Schwinn And Sealy Doctrines, S. Powell Bridges
Duke Law Journal
Recent Supreme Court decisions in United States v. Arnold, Schwinn & Company and United States v. Sealy, Incorporated have raised new questions concerning the legality of customer and territorial restrictions imposed on dealers, distributors, franchisees, and licensees by manufacturers. In this article the author analyzes these cases and concludes that attacks on customer and territorial restrictions will be more effective in the future and, to avoid government prosecution and treble damage actions by private litigants, businessmen and lawyers should be cautious in the use of such restraints.
Federal Civil Procedure: Stakeholder May File Bond Under Federal Interpleader Act Rather Than Depositing The Specific Property
Duke Law Journal
No abstract provided.
Federal Civil Procedure: Prejudicial Effects Of Stare Decisis Can Compel Intervention Of Right Under Rule 24(A)
Duke Law Journal
No abstract provided.
Labor Law: Fifth Circuit Determines That Breach Of Duty Of Fair Representation Constitutes An Unfair Labor Practice
Duke Law Journal
In the first case in which the issue was the subject of an appeal, the Fifth Circuit held that a labor union's breach of its duty of fair representation by racially discriminating among its members constituted an unfair labor practice under the National Labor Relations Act, and was therefore remediable by the NLRB. The court also focused on the jurisdictional relationship between the Civil Rights Act of 1964 and the National Labor Relations Act, implying that the Act's Equal Employment Opportunity Commission did not have exclusive jurisdiction over unfair representation claims based on racial discrimination. The court's resolution of these …
The Writings Of Charles L. B. Lowndes
Bankruptcy: Bank Which In Good Faith And Without Notice Honors Client’S Check After He Is Adjudicated Bankrupt Not Liable To Trustee For Depletion Of The Bankrupt’S Estate
Duke Law Journal
Relying on contractual and equitable principles to overcome fairly explicit statutory language, the United States Supreme Court in Bank of Marin v. England refused to hold the bank liable for funds of a depositor which had been dispersed without notice of the latter's voluntary filing of a petition in bankruptcy. While the decision promotes the security of commercial transactions in which checks are chosen as the form of payment, the Court's analysis is not without deficiencies. This note, in addition to attempting a more palatable justification for the holding with reliance in part upon countervailing provisions of the Bankruptcy Act, …
Federal Taxation: Supreme Court Announces “Proper Regard” Test To Determine Conclusiveness Of State Court Adjudications Of Property Rights
Duke Law Journal
No abstract provided.
“Tax Simplification”—Grave Threat To The Charitable Contribution Deduction: The Problem And A Proposed Solution, Stanley S. Weithorn
“Tax Simplification”—Grave Threat To The Charitable Contribution Deduction: The Problem And A Proposed Solution, Stanley S. Weithorn
Duke Law Journal
The present National Administration has continued to support proposed legislative changes aimed at substantially reducing the number of income tax returns in which deductions are itemized. The author contends that these "tax simplification" proposals are incompatible with the preservation of the charitable contribution deduction and would undermine the position of voluntary charitable organizations by reducing the incentives for giving. He proposes a solution to this dilemma by promoting the charitable contribution deduction, with certain limitations, to the position of a deduction from gross income, rather than a deduction from adjusted gross income.
Effective Regulation Of Dual Distribution: A Robinson-Patman Approach
Effective Regulation Of Dual Distribution: A Robinson-Patman Approach
Duke Law Journal
The increasingly widespread implementation of dual distribution as a production-distribution technique, coupled with a heightened awareness of the potential for competitive abuse inherent therein, has provided impetus to the search for means by which this practice may effectively be regulated. This comment considers whether the price discrimination provisions of the Robinson-Patman Act might be the appropriate vehicle through which such regulation could be effectuated.
Charles L. B. Lowndes—Five Tributes, Elvin R. Latty, Robert Kramer, Joseph A. Mcclain Jr., Hugh G. Isley Jr., Mark B. Edwards
Charles L. B. Lowndes—Five Tributes, Elvin R. Latty, Robert Kramer, Joseph A. Mcclain Jr., Hugh G. Isley Jr., Mark B. Edwards
Duke Law Journal
No abstract provided.
Divorce Reform—One State’S Solution
Divorce Reform—One State’S Solution
Duke Law Journal
Although New York has long been a leader in reform legislation, it has also had one of the most ineffective divorce laws in the nation. Therefore, it was not unrealistic to hope that when New York recently revised its divorce laws the new product would serve as a model for future reforms in other jurisdictions. While the new law as finally enacted is defective in several respects, its provisions reflect an attempt to accommodate the basic reform trends in current divorce law. This comment investigates briefly the evolution of governmental controls of divorce, the American tradition prior to the New …
The 1967 Patent Law Debate—First-To-Invent Vs. First-To-File, George E. Frost
The 1967 Patent Law Debate—First-To-Invent Vs. First-To-File, George E. Frost
Duke Law Journal
United States patent law has traditionally been based on the proposition that the first inventor, not the first person to file a patent application, is the only person entitled to a patent. Nevertheless, the President's Commission on the Patent System has proposed that patent rights be awarded on a first-to-file basis, and this recommendation is now embodied in bills before Congress. The author urges that the conclusion that a pure first-to-file system would be better for the United States should not be too hastily drawn. He reveals that the present United States patent system is neither purely a first-to-invent nor …
Securities Regulation: Sec Brands Sales Reward Interpositioning A Breach Of Fiduciary Duty And Antifraud Violation
Duke Law Journal
No abstract provided.
Federal Civil Procedure: Supreme Court Rules That Unincorporated Associations Are Subject To Suit Where “Doing Business”
Duke Law Journal
No abstract provided.
Law And The Balance Of Power. By Stewart Macaulay, Arthur D. Austin
Law And The Balance Of Power. By Stewart Macaulay, Arthur D. Austin
Duke Law Journal
No abstract provided.
The Sec’S Rule 10b-6: Preserving A Competitive Market During Distributions
The Sec’S Rule 10b-6: Preserving A Competitive Market During Distributions
Duke Law Journal
The recent Georgia-Pacific litigation serves to reiterate the broad question posed by the Special Study of the Securities Markets concerning the precise limits of the Securities and Exchange Commission's proscription of bidding and purchasing by interested persons during the course of a distribution. While the SEC has affirmed the need for clarification of some applications of the protean regulation, no definitive analysis has been forthcoming. In an attempt to ascertain the current view of the Commission with respect to enforcement of the prohibition and to isolate the more troublesome issues raised by the rule, this comment examines the background of …
Constitutional Law: Supreme Court Indicates Significant Limitation Upon Review Of State Criminal Procedures
Duke Law Journal
In affirming convictions pursuant to a Texas statute implementing common law recidivist procedure, the Supreme Court attenuated the efficacy of allegations of jury prejudice and of alternative means as constitutional determinants in the consideration of criminal procedures absent potential frustration of specific constitutional provisions. Based upon pragmatic considerations of judicial efficiency and deference to state prerogative, the decision may extend beyond its unique factual situation to narrow significantly the role of due process in defining the range of permissible state criminal procedures.