Law Commons^™

The Labor Gerrymander, Joel Heller

Vanderbilt Law Review

The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.

This Article interrogates the political-model analogy through the lens of …

Baseball's Third Strike: The Triumph Of Collective Bargaining In Professional Baseball, Robert A. Mccormick

Vanderbilt Law Review

Since the inception of professional baseball, team owners have imposed limits on the freedom of players to negotiate contract terms. In this article Professor McCormick traces the history of attempts by professional baseball players to obtain contractual freedoms through the use of the antitrust and labor relations laws, attempts that culminated with the players' strike of 1981. Although players in other team sports successfully have utilized antitrust laws to increase player bargaining power, Professor McCormick argues that labor law has provided baseball players the only effective means to gain increased contractual freedoms. Professor McCormick concludes that player-owner disputes over the …

Recent Cases, Laurence M. Hamric, William G. Scott, Mitchell M. Purvis, George M. Kryder, Iii, Richard M. Pitt

Vanderbilt Law Review

Laurence M. Hamric

The instant decision demonstrates the inability of the Court, on its own or with the meager guidance provided by Congress, to discern a clear standard by which to measure the propriety of union organizational activity in light of current federal labor and antitrust law. Faced with a fact pattern that did not embody an apparent anticompetitive intent, a classic conspiracy between labor and non-labor entities, or activity clearly unrelated to the legitimate union interest in achieving better wages and working conditions, the Court was forced to abandon the "clear showing" test of Pennington," the"intimately related" test of …

Recent Cases, Vanderbilt Law Review Staff

Vanderbilt Law Review

Civil Rights--Private Education-Racially Discriminatory Admissions Policies Violate Right to Contract Provision of 42 U.S.C. § 1981

Plaintiffs, ' blacks who had been denied admission solely on the basis of their race to two all-white private schools that received no state aid,' sought damages and injunctive relief in federal district court contending that these rejections violated section 1981 of 42 U.S.C. by denying them the same right to contract as enjoyed by white citizens.

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Copyright--Telecommunications--CATV Importation of Distant Television Signals Constitutes Infringement Under Sections One (c) & (d) of the Copyright Act

Plaintiffs,' creators and producers of television programs,brought a …

Recent Development: Comment, Law Review Staff

Vanderbilt Law Review

The National Labor Relations Act (NLRA)' provides that certain classes of employees are excluded from the Act's coverage of bargaining unit formation and employee activity. The National Labor Relations Board has added to this unprotected category two classifications of employees--those who are engaged in management policy formulation or effectuation (managerial employees) and those who assist management in the formulation of labor relations policies (confidential employees)--because of their close affiliation with management. The concept of managerial employee, however, has not been defined precisely and thus has given rise to considerable confusion when applied in various factual settings. In two recent Board …

Labor Law--The National Labor Relations Board Redefines And Restricts The Scope Of Managerial Employee Classification, Law Review Staff

Vanderbilt Law Review

The National Labor Relations Act (NLRA)' provides that certain classes of employees are excluded from the Act's coverage of bargaining unit formation and employee activity. The National Labor Relations Board has added to this unprotected category two classifications of employees--those who are engaged in management policy formulation or effectuation (managerial employees) and those who assist management in the formulation of labor relations policies (confidential employees)--because of their close affiliation with management. The concept of managerial employee, however, has not been defined precisely and thus has given rise to considerable confusion when applied in various factual settings. In two recent Board …

Recent Developments, Law Review Staff

Vanderbilt Law Review

Preservation of internal union solidarity through the exercise of disciplinary power over members has been recognized as an essential prerequisite to maintenance of a strong bargaining position vis-a-vis management.' Therefore, courts have afforded unions relative freedom to discipline members who violate rules of internal union government. Somewhat different principles of union discipline, however, are applied to members who occupy supervisory positions with the employer.' The employee-member is loyal primarily to his union, but the loyalty of the supervisor-member ultimately is two-dimensional:' he is loyal to the union by virtue of his union membership and to the employer by virtue of …

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

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

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

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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

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

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

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust-Informal Price--Information Exchanges Held Violative of Sherman Act

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Conflict of Laws--"Contacts" Doctrine Applied to Supplement Federal Maritime Law in Diversity Action

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Constitutional Law--Fourteenth Amendment Prohibits Extended Postponement of Parole Consideration for State Inmate When Made on the Basis of an Unreliable Factual Determination

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Labor Law--Collective Bargaining-Employer May Not Enforce Collective Bargaining Agreement Provision Embodying Union Waiver of Employee's Right to Solicit Against That Union

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Labor Law-Remedies--NLRB May Order Retroactive Payment of Fringe Benefits Where Employer Wrongfully Refuses to Sign Collective Bargaining Agreement

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Religious Societies--First Amendment Prohibits Civil Courts From Determining Doctrinal Questions in Resolving Church …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Agency Franchise Agreements Are Reasonable Trade Restraints Under Sherman Act While Restraints Following Sale Are Per Se Unlawful

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Antitrust--Product Extension Merger in Violation of Section 7 of the Clayton Act

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Constitutional Law--Reapportionment-Principle of "One Man, One Vote" Not Applicable to Appointed County School Board Performing Administrative Function

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Labor Law--Union Empowered To Expel Member for Failure To Exhaust Union Appellate Remedies

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Taxation--Federal Estate Taxation-State Trial Court Judgments on Property Rights Not Conclusive on Federal Courts Adjudicating Federal Tax Consequences

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Taxation--Federal Income Tax--Effect of Close Corporation Voting Trust on Right to Subchapter S Election

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Exclusion of Wage Earners as a Class from Jury Service in State Courts Violates

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International Law and Trademark Infringement--Rights of Former Owners of Confiscated Cuban Businesses Under Hickenlooper Amendment

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Jurisdiction--Minimum" Contacts--First Amendment Requires a Greater Showing of Contact in a Libel Action To Satisfy Due Process Than Is Necessary in Other Types of Actions

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Labor Law--Attorney Undertaking Persuader Activity on Behalf of Employer Must Report Such Activity Under LMRDA

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Labor Law--Employer Must Bargain About an Economically Motivated Decision To Close a Portion of Its Operations

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Labor Law--Employer's Duty To Bargain When Authorization Cards Are …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Federal Criminal Code Protects Rights Secured by Fourteenth Amendment

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Civil Rights--Removal--Strict Interpretation of Federal Removal Statute Affirmed

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Labor Law--Judicial Review of Arbitrator's Authority To Imply Contractual Condition

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Labor Relations--Federal Preemption of Defamation Suits Arising in Course of Organizational Campaign

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State and Local Taxation--Economic Exploitation Sufficient Connection To Require Non-Resident Seller To Collect Use Tax

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Conspiracy To Eliminate Discounters From Automobile Market a Per Se Violation of Sherman Act

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Antitrust Law--Merger of Two Major Competitors in Industry with History of Concentration Violates Section 7 of Clayton Act

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Criminal Law--Future Confessions Will Be Inadmissible Unless Specified Pre-trial Procedures Are Followed

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Juvenile Courts--Juvenile Delinquent Entitled to Hearing On Question of Waiver of Jurisdiction

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Labor Law--Public Carrier Can Make Unnegotiated Unilateral Changes in Collective Agreements When "Reasonably Necessary" To Maintain Service

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Labor Law--In Future NLRB Elections, Employer Must Furnish List of Employees' Names and Addresses

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Taxation--Thin Incorporation Not Tantamount to Disqualification …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Advertising--Undisclosed Use of Simulations In Television Commercials--a Deceptive Practice

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Antitrust Law--News Service Package Contract, a Tying Arrangement under Section I of the Sherman Act

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Antitrust--Union-Employer Agreements as to Labor Demands To Be Sought From Other Employers

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Constitutional Law--Laws Prohibiting the Use of Contraceptives by Married Couples for the Prevention of Conception Are Unconstitutional

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Constitutional Law--Rights of Addressee To Receive "Communist Political Propaganda" Protected Under First Amendment

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Federal Courts--Erie Doctrine Not the Test for Applicability of Federal Rules of Civil Procedure

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Constitutional Law--Televising of Criminal Trials Held Violative of the Right to a Fair Trial …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Attorneys--Interstate Legal Services and the Unauthorized Practice of Law

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Conflict of Laws--New York Public Policy Permits Enforcement of Foreign Gambling Obligation

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Conscientious Objectors--Universal Military Training and Service Act--Supreme Court Test of"Belief In A Relation to A Supreme Being

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Constitutional Law--Abatement of Convictions Occurring Prior to Passage of Civil Rights Act of 1964

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Escheats--Disputes Between States Concerning Unclaimed Corporate Obligations

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Labor Law--Failure To Bargain--Employer Required To Bargain With Respect to His Proposal To Contract Out Work

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Professions--Canon Twenty of the Canons of Professional Ethics Interpreted To Ban Statements to News Media

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Taxation--Corporate Income Taxation--Merger …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Consignment Agreements To Fix Retail Prices

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Constitutional Law--Fifth Amendment-Denial of Passport

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Constitutional Law--State Procedure To Determine The Voluntariness of a Confession

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Criminal Law--Statutory Rape-Good Faith, Reasonable Belief That Female Has Reached Age of Consent as a Defense

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Insurance--Validity of Policy Provision Permitting Insured To Choose Forum for Determination, of Disputes Under the Policy

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Labor Law-Closing of Plant Due to Unionization

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Labor Law--National Labor Relations Act--Strike by Minority of Union as Protected Concerted Activity When in Support of Union Position

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Labor Law--National Labor Relations Act--Union's Duty of Fair Representation Not Implicit in Section 7--Discrimination …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--FTC Proceeding Will Not Toll the Statute of Limitations in an Action Under Section 4(b) of the Clayton Act

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Conflict of Laws--Where None of the Beneficiaries Reside in Forum State, Limitation on Amount of Recovery Imposed by State Where Tort Occurred Governs

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Criminal Law--Double Jeopardy--Conviction of Greater Degree of Offense on Retrial

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Federal Rules of Civil Procedure--No Requirement that Agent Appointed To Receive Service of Process be Expressly Bound To Give Notice to Principal

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Labor Law--NLRA--Union's Duty To Represent Fairly

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Labor Law-Walsh--Healey Act--Secretary of Labor Not Authorized To Set More Than One Prevailing Wage

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Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Attorneys--Violation of Canon 27 by Encouraging or Permitting Favorable Publicity

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Constitutional Law--Dismissal of Criminal Charges Because of Deprivation of Right to Effective Counsel by Eavesdropping

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Criminal Law--Credit Card Invoice as a "Security" under National Stolen Property Act

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Criminal Law--Rights of Alleged Parole Violator at Revocation Hearing

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Labor Law--Federal Procedure--Right to Jury Trial under Section 17 of the Fair Labor Standards Act

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Labor Law--Representation. Elections--Provision on Ballot Allowing Vote for "No Representation"

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Labor Law--Unfair Labor Practice--Availability of Injunction Prior to Exhaustion of Administrative Remedies

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Taxation--Federal Estate Tax--Survivor's Annuity as Insurance Under Section 2039 a …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Restraint of Trade--Applicability of Section 7 of Clayton Act to Bank Mergers

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Constitutional Law--Appointment of Counsel for Indigent Defendants in State Criminal Trials

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Constitutional Law--Civil Rights--State Action--Effect of Standard Urban Redevelopment Land Use Covenant

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Constitutional Law--Free Exercise of Religion--Denial of Unemployment Compensation to Seventh-Day Adventist

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Constitutional Law--Self Incrimination--Effect of a Defendant's Comment on His Codefendant's Silence

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Labor Law--Ability of Individual Employee To Bring Suit Under Section 301 of Taft-Hartley Act

Labor Law -- 1962 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Two decisions during the survey period involve implementation of rights under collective bargaining agreements. These Tennessee decisions interrelate with other decisions in an area of labor law that has been developing with astonishing rapidity since the Supreme Court of the United States embarked on the project of fashioning a body of federal common law governing the enforcement of collective bargaining agreements in the famous Lincoln Mills decision in 1957. It has been determined that rights under collective bargaining agreements, where the parties would be subject to the Taft-Hartley or Labor-Management Relations Act of 1947, arise under this federal common law." …

Priority Paradoxes In Patent Law, Richard H. Stern

Vanderbilt Law Review

The constitutional provision governing patents gives Congress the power to promote the progress of useful arts "by securing for limited Times to... Inventors the exclusive Right to their... Discoveries. "'Because an "exclusive right" suggests an exclusive grant, the Patent Office interference proceeding has been created for the purpose of determining administratively the question of priority of rights between two or more parties claiming substantially the same invention. This article attempts to state in terms of an informal axiomatic system the rules of law for determining priority of invention, and then examine that system to explore its possible paradoxes Finally, an …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Restraint of Trade-Supreme Court Suggests A New Reading of Section 3 of the Clayton Act

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Civil Rights--Abatement and Revival--State Survival and Wrongful Death Statutes Adopted in Federal Civil Rights Act Suits

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Constitutional Law--Tenth Amendment-the Estate of A Veteran Dying Intestate Without Heirs May Constitutionally Escheat to the Federal Rather Than State Government

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Due Process of Law--A State May Deny An Applicant Admission to the Bar for Refusing To Answer Questions About His Advocacy of Subversive Organizations Or Objectives

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Federal Courts--State Security for Expenses Statute Inapplicable in Federal Equity Action Under Securities Exchange Act

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Federal …

Labor Law -- 1961 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

In considering basic rights in connection with labor organization, it must be noted that there may be a fundamental conflict between giving dominant emphasis to the interest of the group of organized workers in advancing and maintaining the standards applicable to the group as opposed to giving comparable emphasis to the wishes of the individual employee of a particular employer. The various policy statements contained in the Wagner Act, the Taft-Hartley Act of 1947 and the Landrum-Griffin Act of 1959 indicate a public interest (within the scope of federal authority) in the protection of employees' right to organize, to choose …

Labor Law And Workmen's Compensation -- 1960 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

Labor law is concerned with the rules governing the various phases of the employment relation and the activities of employers and labor organizations vis-a-vis such phases. Sometimes such rules are embodied in criminal law or tort law. If the substance of the alleged crime or tort is not directed toward or used in some respects as a regulation of employment or labor relations, it is excluded by the above definition even though some "labor" aspect is prominently identified with the case. For example, during the survey period the Supreme Court of Tennessee decided the case of Smith v. State, affirming …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases:

CONTRACTS--CONFLICT OF INTERESTS--GOVERNMENT EXPERT'S PRINCIPAL EMPLOYMENT INSUFFICIENT TO VOID CONTRACT ON GROUNDS OF PUBLIC POLICY

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CRIMINAL LAW-ATTEMPT-CONVICTION OF ATTEMPT TO RECEIVE PROPERTY NOT IN FACT STOLEN

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DOMESTIC RELATIONS-UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT--RELIEF FROM-EXTRADITION UPON PETITION OF THE OBLIGOR

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EVIDENCE-ADMISSIONS--GUILTY PLEA TO TRAFFIC LAW VIOLATION INADMISSIBLE IN SUBSEQUENT CIVIL SUIT

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FEDERAL JURISDICTION AND PROCEDURE--DIVERSITY JURISDICTION--ABSTENTION BY FEDERAL COURT FROM THE EXERCISE OF JURISDICTION IN DIVERSITY CASE

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LABOR LAW--LABOR--MANAGEMENT RELATIONS ACT-STATE COURT PRE-EMPTED FROM ENFORCING GRIEVANCE PROCEDURES OF COLLECTIVE BARGAINING AGREEMENT

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PROFESSION OF LAW--BAR ASSOCIATION MAY NOT DISCIPLINE AN ATTORNEY FOR CONDUCT AS …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Act--Discriminatory Practices--Defenses Available to Charge of Discrimination in Furnishing Services and Facilities

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Bankruptcy--Priority of Wages--Employer's Contributions to Welfare Funds Are Not Entitled to Priority as Wages Due to Work

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Constitutional Law--Social Security Benefits--Automatic Suspension of Deported Person's Social Security Benefits a Denial of Due Process

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Constitutional Law--Union Shop Agreement Under Railway Labor Act Violates Constitutional Rights of Employees

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Corporations--Securities and Exchange Act of 1934--Liability of Director for Profits on Stock Acquired Prior to Election as Corporate Official

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Damages--Quasi Contract--Exemplary Damages in Quasi Contract When Defendant is Guilty of Fraud

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Evidence--Other Crimes--Admissibility of Evidence …

Labor Law And Workmen's Compensation--1959 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

What is the meaning of the term "actual cash value" in the standard fire policy? The middle section of the court of appeals, following a prior Tennessee case and the weight of authority, held that the phrase is synonomous with "market value" only where the goods are readily replaceable in a current market. Where there is no market, or where the market value is inadequate to properly indemnify the insured, "actual cash value" means the "'value to the owner' or the loss he suffers in being deprived of the goods." Since the goods involved in this case were personal effects, …

Labor Law And Workmen's Compensation -- 1958 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

The federal Labor-Management Relations (Taft-Hartley) Act sets forth as a basic right the freedom of choice of covered employees with respect to unionization and the establishment of collective bargaining. While protecting certain concerted activities, this statute makes it unlawful, among other things, for a labor organization to strike or picket for certain proscribed objectives. In this area of regulation (i.e., the purposes of labor combinations and economic pressures) the federal machinery is exclusive to the extent that the necessary relationship to interstate commerce is present and exceptions to coverage are inapplicable. While the Supreme Court of the United States has …

"Cartels" Under The New German Cartel Statute, Heinrich Kronstein

Vanderbilt Law Review

On January 1, 1958, the "Cartel Statute" of the Federal Republic of Germany' became effective. American interests in this event are threefold: (1) During the past decade Americans have tried to convince the Western world that in an industrial, democratic society legislation of the American antitrust type is imperative. Is the German cartel statute a piece of legislation of this type? (2) The enactment of the statute brings to an end the application of Law No. 56 enacted by the American Military Government on January 28, 1947. The Paris Treaty between the Allied Powers and Germany provided that the Allied …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Attorneys--Unauthorized Practice of Law--Negligence per se for Which Liable to Injured Person Other than Client

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Conflict of Laws--Choice of Law--Application of Dramshop Act Where Injury Occurs in Another State

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Constitutional Law--Due Process--Legislative Publication of Intercepted Attorney-Client Communication

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Corporations--Stockholders' Rights--Mandamus to Compel Inspection of Corporate Books at Place Outside Forum State

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Creditors' Rights--Federal Tax Liens--Removal of Lien from Property in Hands of Bonafide Purchaser

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Criminal Law--Perjury--Witness Brought before Grand Jury for Primary Purpose of Extracting Perjured Testimony

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Domestic Relations--Torts--Action by Husband against Wife for Negligently inflicted Personal Injuries

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Evidence--Witnesses--Cross-Examination of Character Witness for Accused …