Law Commons^™

Industry Self-Regulation And The Useless Concept "Group Boycott", Robert Heidt

Vanderbilt Law Review

A doctor is denied staff privileges at a private hospital after a negative recommendation from the hospital's medical staff. A real estate agent is denied membership in a multiple. listing service by a vote of the current members. A golfer is deemed ineligible to compete in a professional golf tournament by a committee of the Professional Golf Association. A college is refused accreditation by a private accrediting association. Plywood of type three ply one half inch is found not to meet the commercial standard for douglas fir plywood established by the Douglas Fir Plywood Association. A fuel cutoff device is …

Mr. Justice And Mrs. Black: The Memoirs Of Hugo L. Black And Elizabeth Black, Daniel J. Meador

Vanderbilt Law Review

In addition to foreshadowing Supreme Court decisions that followed his death, some of Justice Black's dissents noted in this book, though not yet adopted by a Supreme Court majority, have played a role in lower court decisions. His dissent in Tinker v. Des Moines Community School District expressed the idea that the disruptive activities of high school students are not protected by the first amendment. This view subsequently was reflected in a Ninth Circuit decision, and his Tinker opinion has been favorably cited in other lower court opinions." Justice Black's comments during oral argument in Swann v. Board of Education …

Miranda And The State Constitution: State Courts Take A Stand, Mary A. Crossley

Vanderbilt Law Review

This Note examines how state courts have interpreted state constitutional guarantees of the privilege against self-incrimination independently of the Supreme Court's construction of the fifth amendment. Part II focuses on the historical and theoretical underpinnings of state constitutional law and examines state courts'renewed reliance on their state constitutions. Part III discusses the Supreme Court's interpretation of the fifth amendment in Miranda and its progeny. Part IV presents the states' response to Supreme Court holdings and surveys state court decisions interpreting state constitutions' self-incrimination provisions more broadly than the fifth amendment. Finally, Part V examines the potential for further growth in …

Nonbank Banks: Congressional Options, Davis W. Turner

Vanderbilt Law Review

The Bank Holding Company Act I (BHCA) defines a bank as an institution that both accepts demand deposits and makes commercial loans. An institution choosing to perform only one of these two activities falls outside the scope of the BHCA and constitutes a "non-bank bank." The creators of a non-bank bank receive two principal benefits from the institution's status as a non-bank bank. First, a bank holding company acquiring a non-bank bank can avoid the geographical restrictions imposed by the Douglas Amendment to the BHCA. Second, a company outside of the banking industry may acquire a non-bank bank without becoming …

Regulation Of New Financial Instruments Under The Federal Securities And Commodities Laws, David J. Gilberg

Vanderbilt Law Review

In the last few years, "an endless stream of exotic financial instruments conjured by Wall Street wizards" literally has taken the financial community by storm, fundamentally altering market trading practices and pitting institutions against each other in an intense competition for development of still more innovative instruments. These products--which include various types of"swaps," options, forward contracts, and price guarantees--now are being offered to and traded by every major financial institution and multinational corporation in the world, as well as by governments and individuals, and nothing indicates that the unprecedented growth of the markets for such instruments is likely to sub-side …

The Chaos Of The "Battle Of The Forms": Solutions, John E. Murray, Jr.

Vanderbilt Law Review

Whatever may be said of the lack of certainty, stability, and predictability in many areas of the law, chaos rarely is discovered. Unfortunately, we have now reached that point in matters involving attempts by innumerable buyers and sellers to make contracts through an exchange of printed forms. Because printed forms will continue to be the written evidence of the overwhelming majority of attempted contracts in America,' this chaos threatens the institution of contract in our society. There should be no doubt that"chaos" is an accurate characterization of the state of the law in the "battle of the forms" arena. Courts …

Removal Of General Partners: A Method Of Intrapartnership Dispute Resolution For Limited Partnerships, Janet L. Eifert

Vanderbilt Law Review

The term "limited partnership" denotes a business organization in which the liability of at least one partner, the "limited partner," for the debts and obligations of the partnership is limited to his contribution to the partnership, whereas the other members of the partnership, the "general partners," may incur unlimited personal liability. The limited partnership is currently used primarily as a public or private investment vehicle in oil and gas, mining,and real estate ventures. Limited partnerships recently have become more popular, primarily because they receive advantageous tax treatment and provide investors with the shelter of limited liability.

Although many scholars have …

The Right Of Publicity: Commercial Exploitation Of The Associative Value Of Personality, Sheldon W. Halpern

Vanderbilt Law Review

For more than thirty years, dispute and confusion have marked the emergence and development of the so-called "right of publicity,"' a right that is concerned with the use of attributes of a generally identifiable person to enhance the commercial value of an enterprise. A dense, complex array of cases, accompanied by and analyzed in an even denser array of commentary, has been the vehicle for adumbrating the emergent right. Battle lines are drawn over whether the creature emerging from the fermenting ooze of modern mass communications is a species of "property" or a purely personal "privacy" interest."Everywhere one finds the …

Deceptive Negotiating And High-Toned Morality, Walter W. Steele, Jr.

Vanderbilt Law Review

Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer's perspective, an advantage of negotiation over other forms of dispute resolution is that …

Public Access To Civil Court Records: A Common Law Approach, Ronald D. May

Vanderbilt Law Review

Courts have long recognized a general common law right of access to courtroom proceedings' and court records. Recently, however, courts have begun to consider whether the first amendment of the Constitution protects this right of access. In 1980 the United States Supreme Court in Richmond Newspapers, Inc. v. Virginia held that the press and the public have a first amendment right to attend criminal trials. The Supreme Court found this right implicit in the various clauses of the first amendment. Although the Supreme Court has taken few opportunities since Richmond Newspapers to define precisely the contours of the first amendment …

The Antitrust State-Action Doctrine After Fisher V. Berkeley, Daniel J. Gifford

Vanderbilt Law Review

In February 1986 the United States Supreme Court in Fisher v. Berkeley' upheld the validity of a municipal rent control ordinance against a contention that the Sherman Act preempted the ordinance. In an eight-to-one decision, the Court effectively gave the coup de grace to its earlier attempt to apply the federal antitrust laws to municipalities and political subdivisions. It also may have finally ended the remarkable series of disingenuous state-action decisions that had become an almost regular part of the Court's calendar since Goldfarb v. Virginia State Bar' in 1975.Fisher holds a promise of restoring to the state-action exemption a …

State And Local Taxation Of Financial Institutions:An Opportunity For Reform, C. James Judson, Susan G. Duffy

Vanderbilt Law Review

Forces at work in both public and private sectors may soon change the way state and local political subdivisions tax financial institutions. The market for financial services is changing dramatically. Governments have expanded substantially the scope of activities in which financial depositories may engage. The competitive environment for financial activities also is changing as general business corporations enter the financial services field, an area previously considered the exclusive domain of financial institutions. Financial institutions have increasing opportunities for interstate activity, which offers both risks and challenges. These changes have occurred during a period in which the extensive framework of state …

Discriminatory Demands And Divided Decisions: State And Local Taxation Of Rail, Motor,And Air Carrier Property, Scott M. Schoenwald

Vanderbilt Law Review

To prevent the unreasonable burdening of interstate commerce that results from discriminatory state and local taxation of rail, motor, and air carrier property, Congress enacted section 306 of the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act), 1 section 31 of the Motor Carrier Act of 1980, and section 532(b) of the Airport and Airway Improvement Act of 1982.' These statutes represent the result of two decades of congressional deliberation over property tax discrimination against interstate carriers. Because Congress enacted the 4R Act first and because tax discrimination against rail carriers has been the most egregious,the overwhelming majority …

Significant Sales And Use Tax Developments During The Past Half Century, Jerome R. Hellerstein

Vanderbilt Law Review

Sales and use taxes have been the great growth taxes of state and local governments during the past half century. The general sales tax, along with selected levies on gasoline, tobacco, and liquor, has had phenomenal growth during the past fifty years. In 1932 only Mississippi imposed a general sales tax. It produced seven million dollars, less than one percent of Mississippi's total tax revenues. Taxes once introduced, however, tend to grow at least until widespread dissatisfaction leads to a taxpayers' revolt,such as California's Proposition 13' or the election of President Ronald Reagan and the ascendancy of political conservatism and …

Collection Of The Use Tax On Out-Of-State Mail-Order Sales, Paul J. Hartman

Vanderbilt Law Review

The states' inability to collect taxes on out-of-state mail-order sales constitutes a major fiscal problem. The federal government's Advisory Commission on Intergovernmental Relations estimates that states are losing as much as 1.5 billion dollars each year in unpaid out-of-state mail-order purchase taxes.'

In addition to raising revenue, the compensating use tax serves two purposes: (1) The use tax helps local sellers to compete with retail dealers in other states who are subject to a lesser tax burden;and (2) the use tax avoids the likelihood of draining the taxing state's revenue by removing buyers' incentive or temptation to go bargain hunting …

The Right To Counsel During Custodial Interrogation: Equivocal References To An Attorney-Determining What Statements Or Conduct Should Constitute An Accused's Invocation Of The Right To Counsel, Matthew W.D. Bowman

Vanderbilt Law Review

The fifth amendment to the United States Constitution guarantees to all persons the privilege against compelled self-incrimination. In Miranda v. Arizona, the United States Supreme Court interpreted the fifth amendment to require a specified set of procedural safeguards that law enforcement officers must follow to protect adequately each individual's fifth amendment rights. The Miranda safeguards require that prior to an accused's custodial interrogation, government officials must inform the accused that he has the right to remain silent; that any of his statements maybe used against him in a subsequent criminal action; that he has the right to confer with counsel; …

An Analytical Approach To State Tax Discrimination Under The Commerce Clause, Philip M. Tatarowicz, Rebecca F. Mims-Velarde

Vanderbilt Law Review

The commerce clause as an instrument of federalism facilitates a system of government that places a national government over fifty sovereign states. Federalism requires a balancing of the interest in a unified national approach to government with the competing interest in state sovereignty. As Justice Brennan explained:

"Our Constitution is an instrument of federalism. The Constitution furnishes the structure for the operation of the States with respect to the National Government and with respect to each other.. ..Because there are 49 States and much of the Nation's commercial activity is carried on by enterprises having contacts with more States than …

The Personal Income Tax As A Component Of State Tax Structure, William F. Fox

Vanderbilt Law Review

This Article evaluates the pros and cons of a state individual income tax from the perspective of an economist. The Article examines the income tax as one component of a tax structure that is best suited for raising a given level of revenues. The important assumption in the analysis is that the level of state public expenditures is determined by residents' demand for public services. This assumption does not preclude the tax structure from allowing greater or lesser expenditures than are demanded during any single year; rather, the assumption is that over time tax levels provide revenues that are in …

The Computer's Role In Simplifying Compliance With State And Local Taxation, Ray Westphal

Vanderbilt Law Review

I recently polled several tax managers of large corporations that engage in a multi-state business and asked them whether their companies could stay in reasonable compliance with state and local tax law without using the computer. All said that it would be impossible to meet the compliance requirements of the states and localities without heavy dependence on computers. This reliance on the computer is not surprising given the amount of data that firms must reference to keep up with the thousands of taxing jurisdictions throughout the United States. The many different types of taxes that governmental bodies impose further complicate …

Selected Issues In State Business Taxation, Walter Hellerstein

Vanderbilt Law Review

This Article surveys selected issues in state business taxation.The topics were chosen with the hope that they would be of general interest to the conference for which this Article originally was prepared. The Article therefore eschews the detailed case analysis that typifies much of the law review writing about state and local taxation-including my own-and focuses instead on broader policy and economic questions that those concerned with state business taxation should find no less important.

Part II of this Article considers business taxes and state tax incentives. Part III discusses federal and state tax conformity. Part IV addresses a number …

Policing The Bases Of Modern Expert Testimony, Ronald L. Carlson

Vanderbilt Law Review

Technical witnesses have revolutionized the American lawsuit. Advertisements in litigation periodicals bear witness to the broad range of courtroom expert testimony available to the trial bar. A specialist in airplane pilot error places an advertisement on the same page with an advertiser who is eminently qualified to provide expert testimony in churning securities litigation."' Also included are obscenity experts for criminal cases as well as a timber products specialist with "global experience in accidents and related cases," who claims, "more than 30 years experience with wood utility poles."' Within the category of timber and woods there are other experts as …

Keepers Of The Flame: Prosser And Keeton On The Law Of Torts, Craig Joyce

Vanderbilt Law Review

Rarely in the history of American legal education has one author's name been so clearly identified with his subject as the name of William L. Prosser is with the law of torts. Even today, fourteen years after his death in 1972, "Prosser on Torts" remains in the minds of students, teachers, the bench, and the bar alike a single thought, its parts indistinguishable one from the other. Indeed, the passage of time has done nothing to diminish the influence of the man on the subject. His articles remain landmarks in the development both of the literature of torts and of …

Regionalism And American Legal History: The Southern Experience, James W. Ely, Jr., David J. Bodenhamer

Vanderbilt Law Review

Commentators surprisingly have failed to focus on the influence of regionalism in the development of American law. To be sure, numerous books and articles examine state law and its local application or explore the treatment by several states of a particular legal concept or category of laws. But attempts to define regional attitudes toward law or to analyze regional differences in legal practice are almost nonexistent. So foreign has the topic of regionalism been to scholarship in American legal history that Lawrence Friedman's acclaimed synthesis, A History of American Law,' contains no discussion of regionalism or its close relative,sectionalism. Even …

Legal Rights And Issues Surrounding Conception, Pregnancy, And Birth, Hutton Brown, Miriam Dent, L. Mark Dyer, Cherie Fuzzell, Anita Gifford, Sam Griffin, A. G. Kasselberg M.D., Jayne Workman, Melinda Cooper

Vanderbilt Law Review

Advances in medicine are reported almost daily in the media. Medical researchers have developed and are continuing to develop new methods of creating, saving, and prolonging life. This Special Project examines the impact that rapidly advancing medical technology has on the law governing conception, pregnancy, and birth.

Although medical techniques have advanced rapidly during the past decades, state and federal legislatures have responded in-adequately to the legal consequences of these new birth technologies. The resulting lag between technology and the law has forced courts to confront new situations that do not fit neatly into the statutory framework created to deal …

Alas! Poor Yorick," I Knew Him Ex Utero: The Regulation Of Embryo And Fetal Experimentation And Disposal In England And The United States, Nicolas P. Terry

Vanderbilt Law Review

Replete with analogies drawn to war crimes and expressed fears that the progress of medical science would be halted, the debate over the ethics of human experimentation is nothing if not complex. Nevertheless, in 1978 The Belmont Report was at least able to identify certain generalized ethical principles to guide researchers: "respect for persons," "beneficence," and "justice."' These ethical principles, however, are based ultimately on our perceptions of humanity and personality. Applying these principles to research on fetuses or embryos is fraught with difficulty. Neither of our pluralistic societies has resolved the "separate" debate regarding the appropriate status afforded pre-viable …

Nonacquiescence: Outlaw Agencies, Imperial Courts, And The Perils Of Pluralism, Deborah Maranville

Vanderbilt Law Review

American history has witnessed recurrent conflict between the judiciary and the executive or legislative branches of our government.' The conflict generates heated passions perhaps because it involves both significant struggles for power and fundamental views about the rule of law. New opportunities for conflict have arisen as the number of administrative agencies has grown. In the last decade, administrative agencies and the courts have engaged in a continuing controversy over whether agencies must follow lower court precedents. Although the controversy has touched a number of agencies at least peripherally, the National Labor Relations Board (NLRB or Board) and the Social …

Tort Law Reform: Strict Liability And The Collateral Source Rule Do Not Mix, Victor E. Schwartz

Vanderbilt Law Review

The imposition of strict liability and the simultaneous application of the collateral source rule to innocent defendants represent unfair and unsound public policy. Strict liability and the collateral source rule should not be mixed; nevertheless, our courts inadvertently blend them. A fundamental reform that would help stabilize the American tort law system is to abolish the collateral source rule in to whenever a claimant relies on a strict liability theory.The collateral source rule is appropriate only when a claimant proves that the defendant was at fault in causing an injury. There is a broad view in the United States that …

The Professional Responsibility Of The Law Professor: Three Neglected Questions, Monroe H. Freedman

Vanderbilt Law Review

Law professors have a great deal to say about the ethics of law practitioners. We write law review articles about lawyers' professional responsibilities, and we have participated in drafting codes of conduct for practicing lawyers.

Many of us bring to that task a significant perspective. We can be both informed about and detached from the pressures of daily practice. We are free of involvement or (worse yet) identification with particular clients. Indeed, in choosing to become law professors, we have made the choice to dissociate ourselves from contact with clients.

Not surprisingly, therefore, most law professors tend to minimize the …

Civil Rights Attorney's Fees: Hensley's Path To Confusion, Tim K. Garrett

Vanderbilt Law Review

Congress enacted the Civil Rights Attorney's Fees Act (Fees Act)" to promote more vigorous enforcement of the civil rights laws by attracting competent legal counsel to represent civil rights plaintiffs. To achieve this goal the Fees Act allows courts to award attorney's fees to prevailing plaintiffs in civil rights cases.' The statute, however, entails an inherent tension: the Fees Act's primary aim of compensating prevailing plaintiffs' attorneys "'for all time reasonably expended on a matter' ,, conflicts with the desire to prevent windfalls to attorneys. This conflict is especially keen when a civil rights plaintiff only partially prevails," because the …

Mining With Mr. Justice Holmes, E. F. Roberts

Vanderbilt Law Review

All of us are probably familiar with the notion that the owner of mineral rights may owe some duty of care to support the owner of the fee in his or her surface use of the land. This principle results in a binary system (the surface estate and the right of sup-port) that can be treated easily in tort law. In Pennsylvania the coal companies had owned vast areas of land. The companies had sold much of this land, reserving not only the coal, but "the right to. ..remove the same without incurring in any way liability for any damage …