State and Local Government Law Commons^™

Recent Cases, Sara P. Walsh, Don B. Cannada, Frances L. Adams, William T. Luedke, Iv

Vanderbilt Law Review

Civil Procedure - Appellate Jurisdiction - Orders Denying Disqualification of Counsel on Ethical Grounds Are Not Final Decisions Subject to Immediate Review Under 28 U.S.C. § 1291

Sara Porter Walsh

Petitioner,' an applicant for a Federal Communications Commission (FCC) broadcasting license, sought interlocutory review of a Commission order' denying a motion to disqualify the law firm that had represented competitor RKO for thirty years. Petitioner alleged that participation by the firm, which included an attorney who was chairman of the FCC while RKO's application was under consideration, constituted a violation of Canons Five and Nine' of the ABA Code of …

Municipal Securities Rulemaking Board: A New Concept Of Self-Regulation, Roswell C. Dikeman

Vanderbilt Law Review

The municipal securities industry, an important segment of the national capital markets, directly affects both the quality of life and the pace of community development throughout the nation. Municipal securities, broadly defined to include all debt securities issued or guaranteed by the states and their political subdivisions,' are the vehicle by which states, their agencies, and local governments finance both long- and short-term debt requirements. In calendar 1975, for example, the municipal securities industry raised approximately 29.2 billion dollars in long-term issues. In 1973, 8,147 long- and short-term issues raised almost 48 billion dollars, or approximately one-quarter of all direct …

Recent Cases, Walter S. Weems, Mary M. Schaffner, Ronald G. Harris

Vanderbilt Law Review

Constitutional Law-State and Local Tax-- Nondiscriminatory Ad Valorem Property Tax on Imports Stored in Warehouse Pending Sale Is Not Prohibited by Import-Export Clause

The framers of the Constitution enacted the import-export clause with the apparent intent that it remedy shortcomings of the Articles of Confederation and achieve specified national goals. Since the Articles of Confederation allowed individual states to regulate commerce as they saw fit, the seaboard stales, through whose ports goods in foreign commerce had to pass, were able to impose duties on imports destined for inland states. One reason for the import-export clause was to preserve harmony among …

Judicial Reform At The Lowest Level: A Model Statute For Small Claims Courts, Robert H. Brownlee, Charles L. Lewis, Gregory J. Moonie, William H. Pickering, Paul C. Deemer, Iii Special Projects Editor

Vanderbilt Law Review

The purpose of this Special Project is to analyze the development of procedures for adjudicating small claims, with particular emphasis on the State of Tennessee, and to suggest statutory revisions that may be of value in improving the quality of justice at the lowest level of the judicial system. The Project study commences with an historical survey of the origins of small claims theory and the various court attempts to apply the theory that have been made in the United States during the last half-century. The result of this analysis will be a characterization of a model small claims court.The …

Constitutional Limitations On Income Taxes In Tennessee, Walter P. Armstrong, Jr.

Vanderbilt Law Review

Until either article 2, section 28 or the judicial construction of that section is modified, Tennessee will be unable to levy a general personal income tax. The revenue needs of the state will rise dramatically during the next twenty years, placing increasing strain on the antiquated and regressive privilege-property tax structure no win effect.' As noted earlier, a constitutional amendment specifically authorizing a personal income tax does not appear to be a likely prospect for the foreseeable future. The only feasible solution seems to be the passage of a nongraduated income tax, such as that proposed by the Tax Modernization …

Public Law 86-272: Legislative Ambiguities And Judicial Difficulties, John S. Bryant

Vanderbilt Law Review

Expanding concepts of the services that state governments should perform for their citizens have prompted within recent years entry by the states into fields of endeavor formerly left to private enterprise. Coupled with the upward spiral of the cost of goods and services, expanded responsibilities undertaken by the states have increased greatly the pressure on state taxing authorities to produce revenues sufficient to cover expenses of government. Beset by fiscal problems, the states have attempted to take maximum advantage of existing revenue sources and to tap new ones. Although sales and use taxes have been the primary source of state …

American Independence And The Law: A Study Of Post-Revolutionary South Carolina Legislation, James W. Ely, Jr.

Vanderbilt Law Review

Joseph Brevard, a South Carolina judge, observed in 1814 that "the laws of a country form the most instructive portion of its history." Certainly the successive printed collections of state statutes are among the most reliable and readily available sources for early American legal history. While statutes on their face do not reveal the extent to which they proved effective, the fact remains that to a unique degree statute law, as the product of the legislative process, mirrors the considered values and ideals of a society. Yet the legal history of South Carolina, and indeed that of most southern states, …

Metropolitan Problems And Local Government Structure: An Examination Of Old And New Issues, Daniel R. Grant

Vanderbilt Law Review

At a time when our leading popular magazines are featuring cover headlines on "The Sick, Sick Cities," and articles on their"Battle for Survival" it seems appropriate to examine some old and new issues concerning the relationship of metropolitan problems to local government structure. The journalists who write such articles probably hear a great deal about the frustrating legal and political obstacles to achieving more rational forms of government for our exploding, strife-torn metropolitan areas. They probably do not hear, however, that political scientists are divided on such questions as the reality of "metropolitan-type" problems and the feasibility of area-wide metropolitan …

The Council-Of- Governments Approach To Governmental Fragmentation, Louis F. Comus, Jr.

Vanderbilt Law Review

Much of the current literature in the field of metropolitan government either sets forth examples of governmental difficulties and inefficiencies which result from the urbanization of our population or merely assumes that such difficulties exist. In either case the prescription usually involves some sort of "metropolitanization" of urban governmental structure. Since such prescriptions are aimed either at metropolitan difficulties in general or at particular inefficiencies, it is useful to consider some of the more frequent complaints. One factor often cited as contributing to various urban ills is the archaic governmental structure of many county governments in metropolitan areas. Counties which …

Private International Law And Its Sources, Elliott E. Cheatham, Harold G. Maier

Vanderbilt Law Review

Professors Cheatham and Maier raise the question, "What are the sources of the law applied in private international cases?" The authors consider this question under two main headings. The first deals with the "authoritative sources" of private international law applied in United States courts. It considers the question, Where, within the complex governmental structure of the United States, does power over private international matters rest?" Several possible sources are considered: public international law, state law, and federal law, and within federal law, the major components: international agreements, legislation, federal common law and executive law. The second part of the article …

State Courts And The Federal System, Griffin B. Bell

Vanderbilt Law Review

One of the more important aspects of federalism lies in the relationship which has been established between state and federal courts. The interworkings of the judicial process involve power in some in-stances and principles of comity in others. The purpose of this article is to examine this relationship, including possible areas of abrasion resulting from the interworkings between the two court systems.

Vertical Conflicts: The Role Of State Law In Suits Under Section 301, Edward J. Hardin, Joseph C. Miller

Vanderbilt Law Review

One of the most difficult practical problems posed by our federal system arises when the judicial institutions of one law-making authority are enlisted to enforce and protect rights created by another. While the United States Supreme Court through its appellate jurisdiction is the institution charged with the final responsibility for overseeing a satisfactory solution to this problem, and while the Court can indicate how competing interests are to be harmonized in specific controversies and provide some principles which may be useful in different contexts, it cannot review every state 301 suit. In the long run, success depends upon the earnest …

Conflict Of Laws -- Constitutionality Of State Statutes Governing Ability Of Nonresident Aliens To Receive Property Under American Wills: Zschernig V. Miller, Richard N. Hale

Vanderbilt Law Review

An excellent illustration of the vertical conflict of laws problem involves the ability of nonresident aliens to receive property under American wills. Traditionally, under the American federal system,the acquisition and transmission of property located within a state has been controlled by state law. Yet article I, section 10 of the United States Constitution imposes strict limitations on a state's power to deal with matters having a bearing on international relations, such matters being within the ambit of the national government. The supremacy of the national government in the general field of foreign affairs has been given continuous recognition by the …

The Choice Among State Laws In Maritime Death Cases, David P. Currie

Vanderbilt Law Review

This article is about choice of law, not jurisdiction. Suffice it that the court of appeals was prepared to equate a damp Convair with a Cunarder. It is a very interesting fact that in admirality cases, unlike diversity cases, the governing substantive law, in whatever court, is predominantly federal; the Supreme Court has consistently held that the grant of admiralty jurisdiction to federal courts by the Constitution gives federal judges power to create federal decisional law, although the similarly worded diversity grant does not. If this distinction is justifiable, it must be because of the different purposes the Court has …

State Legislative Services: An Overview, Law Review Staff

Vanderbilt Law Review

Increasing awareness of the critical needs of the state legislatures has stimulated a number of groups to study these needs and suggest reforms. As a result of these efforts, the problems in this area are well-defined. However, all too often the states have failed to take an overview of the needs of the legislative branch; instead most efforts in this area have been directed towards the solutions of specific problems. The result has been as follows: a specific service agency will be created in response to a felt need; subsequently the agency will assume additional duties under the force of …

The Practice Of Law By Out-Of-State Attorneys, William E. Flowers

Vanderbilt Law Review

Multi-state legal problems are commonplace for the American attorney. In meeting the legal needs of the business and personal lives of his clients, he is confronted daily with laws of the several components of our federal system. Out-of-state litigation and office work situations constantly demand his presence in jurisdictions in which he is not admitted to practice. Yet present admission rules make his appearance in such litigation difficult at best, and render such office work virtually impossible. These restrictions on the interstate practice of law have become intolerable--in a legal, if not always a practical, sense--in the context of our …

The Legislature's Power To Judge The Qualifications Of Its Members, Law Review Staff

Vanderbilt Law Review

Because federal and state constitutions require members of the legislative branch of the government to meet certain qualifications, the legal existence of a legislative body is dependent upon compliance with those constitutional requirements.' However, by express constitutional provisions, and by traditional legislative practice and usage, the legislature itself is deemed to be the final judge of the election and qualifications of its members. Section 5 of article I of the United States Constitution provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members ...." The constitutions of all the states contain provisions to …

Municipal Industrial Development Bonds, Alfred E. Abbey

Vanderbilt Law Review

Several years ago a national business magazine carried an article styled "You Gotta Have A Golf Course."' The article outlined the efforts of a small town to attract new industry and the awkward realization by the city fathers that they were losing out to the competition because their community lacked such a recreational facility. After this finding, several public spirited citizens raised the necessary funds and constructed a nine-hole course. These efforts were soon rewarded when a large industrial concern located a new manufacturing plant in their city. Industrial development bonds are essentially intended to serve the same purpose as …

Recent Developments Concerning Constitutional Limitations On State Defamation Laws, Samuel G. Mcnamara

Vanderbilt Law Review

Two recent cases, New York Times Co. v. Sullivan A and Garrison v. Louisiana, have over-turned many aspects of state laws regarding the defamation of public officials. The importance of these two cases is due not only to the problems they have solved, but also to the potential confusion which they have created. The primary purpose of this discussion is to point out the practical effect which the decisions will have on state law, both statutory and decisional. This note is concerned primarily with those aspects of the law of defamation dealing specifically with the conditional or qualified privilege to …

Procedure -- 1963 Tennessee Survey, William I. Harbison

Vanderbilt Law Review

In two important decisions rendered during the survey period the Tennessee Supreme Court considered some of the aspects of joinder of actions under present circuit court practice. In the first of these, Necessary v. Gibson,' plaintiff joined a count for personal injuries resulting from defendants' alleged negligence with a count seeking recovery in contract based upon alleged promises of defendants to pay plaintiff for her injuries and expenses arising out of the same accident.

Commercial Transactions And Personal Property--1963 Tennessee Survey, John A. Spanogle, Jr.

Vanderbilt Law Review

Obviously, the biggest event in the Tennessee law of commercial transactions this year was the enactment of the Uniform Commercial Code [hereinafter referred to as the U.C.C.]. That statute became effective in this state on July 1, 1964. Its effect on the prior Tennessee law is discussed in great detail elsewhere in this issue,' and need not be re-examined here. It should also be pointed out that the enactment of the U.C.C.required some modifications in the criminal statutes relating to security agreements. In particular, executing a second security agreement covering personalty, without disclosing a prior security agreement covering the same …

Tennessee Law And The Sales Article Of The Uniform Commercial Code, W. Harold Bigham

Vanderbilt Law Review

Although much of the interest engendered by the Uniform Commercial Code has centered around Article 9--Secured Transactions,and although Article 9 has been described as the heart of the Code, Article 2--Sales--is half again as long, is in many ways more iconoclastic,' and has precipitated perhaps more criticism than any of the other articles of the Code. Article 2 contains some innovations which are, at least upon initial impression, startling departures from traditional concepts of sales law, and it is therefore not surprising that there has been a spate of legal literature published on various aspects of this article. Since limitations …

Annual Survey Of Tennessee Law, John S. Beasley, Ii

Vanderbilt Law Review

The Union Carbide and Ferguson cases were suits to recover Tennessee sales taxes and use taxes paid under protest for 1956 and 1958. Carbide and Ferguson urged that since they were under contract to the Atomic Energy Commission, the legal incidence of the tax was on the United States directly and therefore invalid. Carbide had been secured in 1943 to manage and operate certain plants involved in work on the atomic bomb, and Ferguson had subsequently been engaged to build additional facilities for this purpose. Both contended that their relationship with the United States and the Atomic Energy Commission was …

Business Associations--1963 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

Section two of the act creating Tennessee's new Law Revision Commission charges that body with the duty to study and report to the next legislature on "the laws governing the organization and operation of corporations, partnerships and other forms of business and social endeavor." The study is now roughly a year old and is reportedly making good headway. Since much of our law of business organizations may therefore be changed in the near future, this Survey has been abbreviated as much as possible.

Conflict Of Laws--1963 Tennessee Survey, Elliott E. Cheatham

Vanderbilt Law Review

The most important development in conflict of laws for many years is the enactment of the conflict of laws provisions of the Uniform Commercial Code.' In adopting these provisions the General Assembly did much more than to fix the law for the specific matters covered, important though these are. The General Assembly rejected one widely urged method of choice of law, and it prescribed a wholly different one. It rejected the old vested rights theory which calls for the use of the law of the place of the last element of a transaction to govern the case, as, the place …

Administrative Law -- 1962 Tennessee Survey, Val Sanford

Vanderbilt Law Review

The writing of this article is an experience in frustration and despair, for in Tennessee there is little recognition of the existence of any such body of principle, of legal concepts and techniques, of procedures and practice, as "administrative law." There is one law, substantive and procedural, for beer boards, another for the Public Service Commission, another for the rate-making decisions of the insurance commissioner, another for employment insurance benefits,another for licensing well-diggers, and so on ad infinitum--a separate law, both substantive and procedural, not only for each agency, but often for each function within an agency. All of these …

Equity -- 1962 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

I. Specific Performance--Statute of Frauds

II. Recission--Fraud and Mistake

III. New Trial After Judgment at law

IV. Injunction--Perpetration of a Nuisance

V. Recission--Return of Consideration

Local Government -- 1962 Tennessee Survey, Gilbert Merritt, Jr.

Vanderbilt Law Review

Local government cases usually make dry reading, but this year one unusual dispute gives some insight into the customs and court-house politics in one of Tennessee's smaller counties. The county judge and the county register of deeds (a lady) disagreed about office space in the courthouse. The county judge wanted to swap offices with the lady, but she refused. So after talking to the sheriff about it, the judge knocked holes in the lady's wall; whereupon she got an injunction. Judge Shriver, speaking for the court of appeals, said the sheriff could not give the judge permission to knock the …

Book Note, Law Review Staff

Vanderbilt Law Review

The book is divided into three major parts. Included in each of these parts are articles written by men who have studied these issues at length. Part I, "The People and Their State Government," deals with issues regarding an individuals relationship to his state--his protections against and his control over governing authorities. The second part, "The Representatives of the People," concerns itself with the established structure of state government and its effect on the quality of local leadership there under. Part III, entitled "The Powers of the State," explores the powers which are given and those denied to the state …

State And Local Taxation -- 1961 Tennessee Survey (Ii), Paul J. Hartman

Vanderbilt Law Review

During the period covered by this survey the pickings by way of decided cases have been pretty slim. Only two cases are here the subject of extended comment.' However, the comprehensive congressional study of state taxation of multistate business has been extended until July 1, 1963. The expanded congressional study now being conducted includes all forms of state taxation of interstate commerce, such as franchise taxes, sales and use taxes, gross receipts taxes, and ad valorem taxes. Under the chairmanship of Congressman Willis, a subcommittee of the House Judiciary Committee with the help of a sizeable staff and an advisory …