Law Commons^™

Federal Estate And Gift Taxation Of Joint Interests: Planning And Policy Perspectives, Hugh D. Brown

Vanderbilt Law Review

This Note will first provide a brief background outlining the incidents of joint tenancy which make it an attractive form of co-ownership under state law. This background section also will place joint ownership in the overall perspective of federal estate and gift taxation by pointing out the impossibility of achieving certain basic federal estate planning objectives in an estate composed primarily of jointly held assets. The Note will then analyze the specific provisions of the Internal Revenue Code governing federal estate and gift taxation of joint interests. This analysis will: first, focus on some of the legal problems generated by …

Due Process For Hill-Burton Assisted Facilities, Margaret L. Huddleston

Vanderbilt Law Review

The need to make health care available to all Americans does not justify the impairment of governmental contracts with Hill-Burton grantees. When substantial rights are greatly impaired by retroactive legislation, the need for a strong governmental justification becomes more acute. The impairment caused by the post-1947 Hill-Burton regulations, particularly the 1979 regulations, is neither reasonable nor necessary in light of the nature and extent to which they impair substantial private rights. The recent Hill-Burton regulations attempt to make health care more available to Americans,but the Government seeks to do this without additional financial expenditure on its part. Although the goal …

Antitrust Enforcement, Freedom Of The Press, And The "Open Market": The Supreme Court On The Structure And Conduct Of Mass Media, William E. Lee

Vanderbilt Law Review

This Article examines the Supreme Court's attempts to foster open markets by altering either the structure or the conduct of mass media enterprises." Structure and conduct are the two main determinants of market performance. Market structure "means those characteristics of the organization of a market that seem to exercise a strategic influence on the nature of competition and pricing within the market." Some characteristics of market structure include degree of buyer concentration, degree of seller concentration, degree of product differentiation, and entry conditions. Market conduct, on the other hand, comprises the practices, policies, and devices which firms employ in adjusting …

Inconsistency In The United States Courts Of Appeals: Dimensions And Mechanisms For Resolution, Stephen L. Wasby

Vanderbilt Law Review

This Article is based on an extensive study of the United States Courts of Appeals for the Eighth and Ninth Circuits that focused on two interrelated questions. The first question was how judges in geographically large circuits communicate with each other when they are not all stationed in the same city.' The focus of this Article is on the second question-the problem of intracircuit inconsistency. The study is based on largely open-ended interviews with the Ninth Circuit's active-duty and senior circuit judges and with some active-duty and senior district judges who had sat most frequently with the court of appeals …

Regulation Of Programming Content To Protect Children After Pacifica, Dabney E. Bragg

Vanderbilt Law Review

This Note examines the "protect the children" rationale as justification for the regulation of program content to determine if it is likely to withstand future challenges. Initially, the Note reviews the Pacifica decisions to illustrate how the rationale recently has been employed. The Note then considers this rationale in light of traditional first amendment analysis and the interface of that analysis with the rights of children, concluding that the rationale does not justify abridgment of the first amendment. The Note then considers the effect of broadcasting's "unique characteristics" upon this analysis, concluding that this added element does not tip the …

Book Reviews, Morris L. Cohen, Judith T. Younger

Vanderbilt Law Review

Dictionary of Legal Abbreviations Used in American Law Books by Doris Bieber

The proliferation of legal sources and abbreviations poses two related problems--first, the need for standardized citation forms,and second, the need for guides to commonly used abbreviations. The first problem has been difficult to solve, and universal acceptance of standard citations is unlikely to be achieved. A Uniform System of Citation, published by the Harvard Law Review Association, in collaboration with the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal, has attained wide acceptance and has become the authoritative guide for legal citations …

Loosening The Grip Of The Dead Hand: Shall We Abolish Legal Future Interests In Land?, C. Dent Bostick

Vanderbilt Law Review

This Article is concerned with a dilemma in the law of Future Interests. The dilemma stems from the needs and demands of a modern society to convey land cleanly and quickly and from the desire of property owners, especially landowners, to direct from the grave the on-going disposition of their property. This desire of landowners has always played a role in English and American property law. Much of the energy of the early judiciary was devoted to counter balancing the numerous ingenious arrangements devised by persons to effectuate continual control of their property.

Constitutional Constraints On Initiative And Referendum, David J. Jordan

Vanderbilt Law Review

This Note examines possible constitutional constraints on initiative and referendum. Part II briefly discusses typical initiative and referendum procedures and contrasts these with representative legislative processes. Part III examines the constitutional significance of the differences highlighted in Part II. Finally, Part IV concludes that because of the peculiar political dynamics of initiative and referendum, which diminish normal safeguards of minority interests, courts may appropriately apply heightened due process and equal protection standards when reviewing direct legislation.

Decision To Prosecute: Organization And Public Policy In The Antitrust Division, C. Paul Rogers, Iii

Vanderbilt Law Review

Professor Suzanne Weaver's first book, Decision To Prosecute: Organization and Public Policy in the Antitrust Division, is a study of the Antitrust Division of the Department of Justice, its institutional behavior and its mechanisms for public policy formation.Although Professor Weaver's audience is not limited to the legal community, Decision To Prosecute will stimulate in two ways the interest of antitrust students, scholars, and practitioners. On one level, the reader will learn something about the internal operations of the Antitrust Division, and may reconsider his preformed judgments about that influential, trenchant branch of the Justice Department.

"Doing Business": Defining State Control Over Foreign Corporations, William A. Holby

Vanderbilt Law Review

This Note will attempt to analyze the present status of the term "doing business" or the substitute terminology used to define that level of activity sufficient to subject a foreign corporation to state control in a particular context.' After defining the degree of activity necessary to permit the state to exercise control in each context, this Note will analyze the accuracy and utility of using terminology such as "doing business" in describing whether corporate activity within a state is sufficient to permit state exercise of legislative or judicial jurisdiction. This Note concludes by pro-posing that use of such ambiguous language …

Conflicting Interpretations Of The Sherman Act's Jurisdictional Requirement, Robert D. Eckinger

Vanderbilt Law Review

Over the past fifty years, plaintiffs have called upon the federal judiciary to deal with antitrust disputes of an increasingly local nature. Although the courts have responded by generally broadening the range of activities which satisfy the substantive elements of the Sherman Act, their approach to the jurisdictional requirement of the statute has been far from consistent. As a matter of statutory construction, this inconsistency, when compared to the expansive jurisdictional approach applied to other statutes based on the commerce clause, is not justified, at least in the absence of a congressional intention to limit the reach of the Sherman …

Police Use Of Trickery As An Interrogation Technique, James G. Thomas

Vanderbilt Law Review

This Note maintains that trickery can be effectively curtailed despite the failure of Miranda to do so. This Note argues that trickery in the interrogation room is a violation of fourteenth amendment substantive due process. The Supreme Court has recently stated, in very unambiguous terms, that due process requirements exist independently of the fifth amendment Miranda requirements in the interrogation context." This Note therefore proposes an objective due process standard that would prohibit trickery. The violation of this due process standard would require the exclusion at trial of confessions induced by trickery. Because the exclusionary rule is not a sufficient …

Income And Gift Tax Treatment Of A Waiver Of Rights To Future, Undeclared Dividends By A Corporate Shareholder, Cornelia H. Boozman

Vanderbilt Law Review

This Note will attempt to set forth and analyze the present state of the law concerning dividend waivers.After determining that this law gives taxpayers few standards for determining the proper tax characterization of a dividend waiver, the Note concludes that analogous areas of tax law must be examined for guidance. Finally, the Note identifies and discusses several analogies that might be helpful to a taxpayer faced with a dividend waiver problem.

International Nuclear Development In The Age Of Interdependence, William O. Doub, Lawrence A. Weiss

Vanderbilt Law Review

The proposal set forth in ... this Article admittedly is no full solution to the problem of preventing the spread of nuclear weapons. Just as important as the control over nuclear materials and technology is the political effort to provide nations with sufficient security so that they perceive little need to develop or acquire nuclear weapons. This Article does assert, however, that a necessary part of any full solution is the cooperative development of a new international consensus regarding the policies governing the international nuclear market and the means to effectuate these policies. Based on the success of the regime …

Book Reviews: Ethics At The Edges Of Life / Samuel Johnson, L. Harold Levinson, J. Allen Smith

Vanderbilt Law Review

Professor Paul Ramsey,' writing as a Christian ethicist, has revised, extended, and updated the Bampton Lectures in America that he delivered in 1975 at Columbia University. The resulting book is Ethics at the Edges of Life: Medical and Legal Intersections. A substantial portion of the book is devoted to critical analysis of a number of landmark court decisions, all of which were rendered after his delivery of the Bampton lectures--Planned Parenthood v. Danforth, on abortion; Commonwealth v. Edelin, on the treatment of a fetus during or immediately after an abortion; In re Quinlan, on the termination of life support; and …

Recent Publications, Journal Staff

Vanderbilt Law Review

Bakke, DeFunis, and Minority Admissions: The Quest for Equal Opportunity

By Allan P. Sindler.

Sindler describes the admissions programs at the Universities of Washington and California-Davis, and the respective experiences of Marco DeFunis and Allan Bakke that preceded their litigation. Then, documenting the disparity in academic qualifications between accepted minorities and rejected nonminorities, Sindler addresses the broad issue before the courts. Is the reservation of academic "places" for minorities an inherently two-track system, which operates as an illegal quota to exclude "better-qualified" applicants; or may a school utilize race as a basis for selection in order to fulfill other commitments …

Taxation Of Sale And Leaseback Transactions - A General Review, Kenneth L. Stewart

Vanderbilt Law Review

This Note first discusses in detail the operation of a sale and leaseback transaction and delineates its various uses. The Note next points out the tax and financial advantages and disadvantages of the sale and leaseback, sets forth the possible avenues of attack on the transaction by the Internal Revenue Service (Service), and describes the consequences of a successful attack by the Service. The final section of the Note analyzes the judicial treatment of sale and leaseback transactions for tax purposes, focusing both on the traditional tests used by the courts and on changes in the law brought about by …

Appealability Of District Court Orders Disapproving Proposed Settlements In Shareholder Derivative Suits, Harold N. Falls, Jr.

Vanderbilt Law Review

This Recent Development will trace briefly the history of the collateral order doctrine, focusing on recent treatment by the Supreme Court. After an examination of the elements of a district court's decision to approve or disapprove a derivative suit settlement, the Recent Development will analyze the conflicting results reached by the United States Court of Appeals for the Second and Ninth Circuits in light of the Supreme Court's apparent retrenchment. Although finding that the Second Circuit's decision to reject appeal ability is most consistent with recent Supreme Court pronouncements, this Recent Development submits that the Supreme Court has adopted an …

The Negative Commerce Clause And State Environmental Legislation-Externalities Suggest Application Of The Tax Standard To Environmental Regulations, Douglas K. Stewart

Vanderbilt Law Review

This Note advocates judicial application of this tax analysis not only to tax environmental legislation, but also to regulatory environmental legislation. The theoretical justification for this thesis is provided by the economic concept of externalities. Externalities are elements used in the production of a marketed item without cost to the producer, but at a cost to others. The term "externality"stems from the fact that the use of the element of production is not included in the market price of the item. Undesirable environmental impact has been recognized as an externality -- a cost to those people adversely affected by it …

Estate Tax Deductibility Of Underwriters' Expenses After An Executor's Sale Of Stock: A Loophole In Section 2053, Mark D. Maloney

Vanderbilt Law Review

This Recent Development will examine the relationship between two Code provisions that are essential to the calculation of the taxable estate. Section 2031 establishes the value of the "gross estate," and section 2053 provides that certain administrative expenses are deductible from the gross estate. Recently, in Estate of Joslyn v. Commissioner and Estate of Jenner v. Commissioner,' two United States Courts of Appeals applied sections 2031 and 2053 in a manner that substantially benefits estates that possess large holdings of a particular stock. Because large blocks of stock are difficult to liquidate, the per-share price of the stock will actually …

Justice Stevens: The First Three Terms, George C. Lamb, Iii, Charles L. Schlumberger, D. J. Simonetti, James D. Spratt Jr., Joel R. Tew, Douglas W. Ey, Jr. Special Projects Editor

Vanderbilt Law Review

This Special Project undertakes an examination of Justice Stevens' Supreme Court opinions in an effort to identify his philosophical orientations, to evaluate the consistency of his views, and to determine the extent to which he has developed workable analytical methods. To achieve these goals, Justice Stevens' opinions are examined in three contexts: first, the area of federal-state relations,including commerce clause and supremacy clause questions; second, the individual rights area, emphasizing criminal constitutional and first amendment issues, and problems of fifth and fourteenth amendment analysis; and third, questions concerning the proper role of the Supreme Court in the constitutional scheme. Even …

The Changing Meaning Of "Gift": An Analysis Of The Tax Court's Decision In Carson V. Commissioner, Jeffrey Schoenblum

Vanderbilt Law Review

This Article will focus on the Carson case in an effort to identify the emerging meaning, if any, of gift. Following a consideration of the factual background of the case in Part II, Part HI will analyze critically and in-depth each of the five Carson opinions in an effort to decipher the various currents at play and any common ground that may still be shared by a majority of the court. Finally, Part IV will consider the decision's likely consequences and the long-term prospects for a settled meaning for gift, one that is not only workable, as is the case …

Attorney Advertising Over The Broadcast Media, I. Terry Currie

Vanderbilt Law Review

This Note will examine the first amendment issues that broadcast attorney advertising raises. The Note will begin with a general discussion of the analytical approach adopted by the Supreme Court in freedom of speech and commercial speech cases. Next, the Note will explore the "special problems" and unique characteristics of the broadcast media as they relate to the interests affected by broadcast attorney advertising, concluding that the benefits afforded to consumers outweigh the potential risks created by such advertising. The Note will also briefly consider various regulations on broadcast advertising adopted by the bar at both the state and federal …

Access To The Work Product Of An Attorney Disqualified For Opposing A Former Client: First Wisconsin Mortgage Trust, Edward S. Annunziato

Vanderbilt Law Review

The purposes of this Recent Development are to analyze the effect of the Seventh Circuit's work product decision on disqualification standards and to develop a consistent framework for determining whether access to the work product of an attorney disqualified for opposing a former client should be allowed. This Recent Development urges that in order to provide the effective guidance necessary for both voluntary compliance and judicial enforcement, the Code must incorporate those judicial standards that most closely reflect its standards in this area. Thus the Recent Development proposes an Ethical Consideration regarding access to work product that reflects the ethical …

Book Reviews: Two Cheers For Capitalism / Does Freedom Work?, Henry Aaron

Vanderbilt Law Review

Although Kristol's book is vastly better than Devine's--both in style and in content--the two books suffer from a common short-coming. Kristol sees a central institution of modern capitalism--the corporation-under aggressive attack, and seeks to defend it. One may disagree with his appraisal of the risks, and resent his tendency to tar all critics with the inanities of the most extreme, but he has a strong case to make-that the rise of modern American capitalism has been a magnificent success story. This success has required an uneasy cooperation between free-market institutions and collective restraints and modifications of market outcomes. By seeing …

The Use Of Racial Preferences In Employment: The Affirmative Action/Reverse Discrimination Dilemma, Judith M. Janssen

Vanderbilt Law Review

This Note examines the constitutional and statutory background of the affirmative action/reverse discrimination issue and analyzes judicial decisions confronting the dilemma." The Note then explores grounds on which the Supreme Court might permit voluntary affirmative action using quotas. Existing EEOC guidelines and Executive' Order 11,246 offer both an objective basis on which to develop a voluntary program and a safeguard against misuse of affirmative action." When the program is established in a collective bargaining agreement, moreover, the national policy of allowing free play for the bargaining process to establish terms and conditions of employment gives an additional reason for allowing …

The Extraterritorial Reach Of The Federal Securities Code: An Analysis Of Section 1905, John M. Liftin

Vanderbilt Law Review

Section 1905 of the proposed Federal Securities Code' sets forth the applicability of the Code to transnational securities transactions. The drafters could have stated in each provision of the Code whether and to what extent it was to apply extraterritorially. Instead, they placed in one section a set of general principles that cuts across all other sections of the Code and indicates which sections are to have extraterritorial application. The result is a descriptive guide that relies on a classification of transactions rather than a section-by-section enumeration...

This Article will not analyze the existing cases, except to the extent they …

Federal-State Relations Under The Federal Securities Code, Jeffrey B. Bartell

Vanderbilt Law Review

There is little in the recorded history of the American Law Institute's Federal Securities Code to indicate that a major rearrangement of regulatory responsibilities between the federal government and the states was a primary object. Milton Cohen's thoughtful article "Truth in Securities" Revisited,I probably the principal catalyst of the codification project, described a new world of securities regulation involving coordinated disclosure and continuous reporting, without any mention of federal-state relations or the blue sky laws. Indeed, when the American Bar Association's Committee on Federal Regulation of Securities first discussed the project in 1966, a suggestion that concurrent consideration be given …

The Trust Indenture Act Of 1939 In The Proposed Federal Securities Code, Richard A. Stark

Vanderbilt Law Review

This Article will summarize briefly the significant provisions of the TIA as they currently are applied and will describe and comment upon Code Part XIII, Trust Indentures, as it appears in the 1978 Draft. ... The Code requirement that statutory and optional trust indenture provisions are to be interpreted, applied, and enforced as a matter of federal law will be statutory confirmation of the Morris case. The overall scheme for dealing with trust indentures, trustees,and the related offering statement represents a desirable simplification and updating of the TIA provisions. Significantly, the SEC's enforcement authority regarding trust indentures is expanded to …

Some Practical Questions Concerning The Effect Of The Proposed Federal Securities Code On Civil Litigation, J. Vernon Patrick, Jr.

Vanderbilt Law Review

A major impetus for the launching of the Federal Securities Code project in 1969 was the view, widely held by businessmen and their lawyers, that it was far too easy for investors to bring class action suits under the federal securities laws, seeking multi-million dollar judgments against business corporations, directors, accountants, and lawyers.' The business community's concern about possible exposure to large judgments in securities litigation was heightened by the news that plaintiffs had obtained a judgment in a class action brought against the issuer and several "outside director"defendants in Escott v. Bar Chris Construction Corp., and by several United …