Law Commons^™

Antitrust, Kurt A. Strasser

Mercer Law Review

In 1980 there were twenty-one antitrust related opinions in the Fifth Circuit. This is about the number of opinions of each of the last few years. Overall, evidentiary and procedural questions were prominent. However, two cases did articulate new analytical structures for existing substantive law. These were, respectively, application of a new approach to evaluating conduct traditionally labelled as business torts,' and an attempt to articulate a "facial" rule of reason to supplement the traditional dichotomy of the per se rule and the rule of reason.' In addition, 1980 saw a substantial decline in the number and importance of cases …

Trademark Protection: Judicial Inconsistency In The Fifth Circuit, Julius R. Lunsford Jr., William R. Cohrs

Mercer Law Review

Plaintiff-appellant has had the misfortune ... to come before a panel of this Court allergic to the doctrine historically associated with us because of its nurture by our most illustrious judges . . . of protecting trade names [trademarks] against competition which will create confusion as to the source of goods sold under such names. The chance of the assignment calendar which has so operated against plaintiff might as easily have brought it success, to judge by the three most recent cases on this issue before us, the unanimous decision in each instance. . . of another panel. ... This …

Contribution: An Area In Need Of Clarity As To Manufacturers' Strict Liability, Pamela Ann Robertson

Mercer Law Review

Contribution is an equitable tool used to distribute losses among all parties responsible for injury to another. Like any other equitable concept, its development in American jurisprudence has been shaped by each jurisdiction's perception of "fairness" and "justice." As a result, application of the doctrine varies widely from state to state. With the appearance in recent years of industry-wide strict products liability actions,' contribution has taken on a new importance. But two obstacles continue to hinder its application. First, since contribution law does vary so widely, it is difficult for litigants to determine what law, if any, is applied in …

Employment Discrimination, Susan A. Cahoon

Mercer Law Review

During 1980, the Fifth Circuit again had a full docket of employment discrimination cases. For the most part, the cases tended to turn on the particular facts at issue, and there were few pronouncements by the court of broader significance. An en banc court did decide an important question about limiting communications in class actions, and a panel of the court considered for the first time, whether there is an implied private cause of action to sue for discrimination against the handicapped under Section 503 of the Rehabilitation Act of 1973. The Fifth Circuit also continued to follow a unique …

United States V. Di Francesco: Court Upholds State Initiated Sentence Appeals, Thomas Michael Hackel

Mercer Law Review

In United States v. Di Francesco, the Supreme Court upheld a statute that allowed the government to seek, through an appeal, an increase of the sentence imposed by the trial court. The Court found that the statute did not violate the protections of the double jeopardy clause against multiple trials and multiple punishment. The question of state initiated appeals assumes further significance when it is considered that proposed revisions of the Federal Criminal Code include wider implementation of sentence appeals by the state.

Garcia V. Gloor: Mutable Characteristics Rationale Extended To National Origin Discrimination, Dwight J. Davis

Mercer Law Review

In Garcia v. Gloor, the Fifth Circuit Court of Appeals upheld a district court ruling that an employer's policy requiring employees to speak only English while at work did not violate the Civil Rights Act of 1964 prohibition against national origin discrimination. In so ruling, the court extended the mutable-immutable characteristics rationale that the Fifth Circuit first outlined in Willingham v. Macon Telegraph Publishing Co.

Liability For Parole Decisionmaking: The Absence Of Discretion In The Parole Process, Robert F. Polglase

Mercer Law Review

In Payton v. United States, the Fifth Circuit Court of Appeals held that the United States was liable under the Federal Tort Claims Act, for the parole of a federal prisoner who, following release, murdered plaintiff's wife. The court concluded that such parole decisionmaking did not come within the discretionary function exemption of the Federal Tort Claims Act (FTCA).

Application Of Common Law Agency Principles To Actions Under The Securities Acts: Strict Liability For Employers, Benjamin F. Parrish Jr.

Mercer Law Review

In Paul F. Newton & Co. v. Texas Commerce Bank, the U.S. Court of Appeals for the Fifth Circuit held that the provision of the Securities Exchange Act of 1934 that provides for secondary liability' does not exclude the application of common law agency principles in an action seeking to hold a brokerage firm liable for alleged violations of the Act committed by its employee. Significantly, the brokerage firm was held liable despite the lower court's finding that the fraudulent acts were committed without the participation or knowledge of the firm or any of its officers.

Constitutional Criminal Litigation, Andrew H. Marshall

Mercer Law Review

During 1980 the United States Court of Appeals for the Fifth Circuit decided well over 200 cases in the constitutional law/criminal area, including direct criminal appeals, collateral attacks on both state and federal criminal convictions, and a handful of cases arising in other contexts. The typical opinion addresses and resolves multiple assignments of error, which compounds the difficulty of organizing decisions into precise, discrete categories. The quantity and diversity of litigation in the area requires that a survey be limited to a fraction of the decided cases. The selection process utilized in the preparation of this survey can only be …

Admiralty, David F. Sipple

Mercer Law Review

During this survey period, the Fifth Circuit interpreted important principles of maritime law. The circuit continued to remain active in the controversial and very fluid area of the maritime law relating to damages available to wrongful death beneficiaries. The appeals court answered a question left open in the en banc opinion in Ivy v. Security Barge Lines, Inc., by subsequently holding that, when a seaman's death in state territorial waters is caused by unseaworthiness, the survivors of the seaman may recover damages for loss of society under the general maritime law in addition to any recovery available under the …

Federal Taxation, Robert G. Woodward

Mercer Law Review

The Fifth Circuit Court of Appeals decided over sixty cases during 1980 that involved federal tax issues. This survey article discusses the Fifth Circuit's federal tax decisions that were deemed the most significant to tax scholars and practitioners. These decisions are grouped according to their subject matter.

Labor, Richard R. Boisseau, David C. Palmer

Mercer Law Review

No abstract provided.

Securities, William S. Jacobs

Mercer Law Review

The Fifth Circuit's 1980 securities laws decisions contained valuable instruction on a variety of issues, although none are likely to become landmarks. Because a number of the cases deal with subjects that are pertinent to both the Securities Act of 1933 (the 1933 Act) and the Securities Exchange Act of 19342 (the 1934 Act), this survey will be organized by topic rather than statute.

Interstitial Lawmaking: Uniformity Or Conformity?, Lillian Harris Lockary

Mercer Law Review

When Congress does not fully address the substantive law contemplated by a statute, federal courts have the responsibility to fashion a governing rule of decision according to their own standards-the conflict of laws rules of the forum. More precisely, the task of judicial legislation could be labeled one of interstitial lawmaking, of interpreting an indeterminate statute, rather than conflict of law. If subject matter jurisdiction is founded on a federal statute, and not diversity of citizenship, the source of law for the litigation is federal, and the rule of Erie R.R. v. Tompkins, that state law applies of its …

Multiple Listing Services And The Sherman Act: Fifth Circuit Applies "Facial" Rule Of Reason Analysis, D.R. Jones

Mercer Law Review

In United States v. Realty Multi-List, Inc., the Fifth Circuit Court of Appeals became the first federal appellate court to address the issue of whether the use of certain membership criteria by a real estate multiple listing service violates antitrust law. Judge Goldberg enunciated a three stage framework of analysis that allows for justification of a challenged practice, and requires proof of only potential, not actual, anticompetitive effects. Applying this test, the court held that the defendant multiple listing service's membership criteria, although not per se illegal, were facially unreasonable, and that the use of these criteria led to …

Taxpayers Stripped Of Clothing Deductions By An Objective Standard, Thomas Daniel Brannan

Mercer Law Review

In Pevsner v. Commissioner, the Fifth Circuit Court of Appeals held that the purchase price of expensive designer clothing was not deductible as an "ordinary and necessary" business expense of a boutique manager, even though the clothing was to be worn only at the boutique. With this holding, the court adopted an objective standard for determining adaptability of work clothing to general use.

Ms. Sandra Pevsner was the manager of a boutique that sold only women's clothes and accessories designed by Yves St. Laurent (YSL). The apparel was very expensive, and Pevsner was required by her employer to purchase …

United States V. Williams: The Good Faith Exception To The Exclusionary Rule, Patricia Walker Bass

Mercer Law Review

In an opinion with two alternative holdings, the Fifth Circuit Court of Appeals decided en banc United States v. Williams on July 31, 1980. The court first held that, because Ms. Williams' arrest was legal, the incriminating evidence found as a result of the search incident to arrest could be used against her at trial. Alternatively, the court ruled that evidence should not be excluded when it is discovered by officers acting in good faith despite the fact that they are mistaken in thinking that their actions are lawful. This note focuses on the second holding that purports to establish …

Bankruptcy, W. Homer Drake Jr., James E. Massey

Mercer Law Review

All of the cases relating to bankruptcy law decided by the Fifth Circuit in 1980 arose under the old Bankruptcy Act. The Bankruptcy Reform Act of 1978 applies to cases filed on or after October 1, 1979. Many of these recent decisions may be of more than merely academic interest, however, since the Fifth Circuit's approach to the issues presented may shed some light on what can be expected in its interpretation of the new Code.

Three cases decided by the Fifth Circuit in 1980 illustrate pitfalls in appellate practice. In Bad Bubba Racing Products, Inc. v. Huenefeld (In re …

The Bloodless Revolution: The Role Of The Fifth Circuit In The Integration Of The Deep South, Frank T. Read

Mercer Law Review

On October 1, 1981, the nation's foremost civil rights tribunal will be no more. On that date, the Fifth Circuit Reorganization Act will become effective and the famous United States Court of Appeals for the Fifth Circuit will be divided into two new circuits.' With the passing of the Fifth Circuit into history's dusty pages, it is appropriate to reflect on the contributions of that court in this nation's monumental struggle to desegregate the public schools of the Deep South.

On May 17, 1954, the United States Supreme Court, in its most important decision in this century, rejected the "separate …

Community Defense Of Union- Free Status, Michael A. Caldwell

Mercer Law Review

During the last decade, the shift of industrialization southward towards the Sunbelt has brought growing prosperity to many previously impoverished communities. Climate, new markets, and favorable tax environments have made previously agrarian communities attractive to northern industries. The ample availability of nonunion labor in these communities has obviously played a large part in their selection as sites for plant relocation. In these cities and towns, the fortuitously "dropped" union authorization card in a plant restroom, or a report that a guest in a local motel has used a credit card issued to a labor union, will send ripples of alarm …

Accommodating Labor's Section 7 Rights To Picket, Solicit, And Distribute Literature On Quasi-Public Property With The Owners' Property Rights, Donald T. O'Connor

Mercer Law Review

Almost a quarter of a century ago, the Supreme Court handed down its landmark decision in NLRB v. Babcock & Wilcox. The Court held that an employer may prohibit nonemployee union organizers from distributing literature to its employees on company property if the employees are not beyond the reasonable reach of the union and the no-access rule does not discriminate against the union. Since Babcock & Wilcox, the development of the law regarding the right of nonemployee organizers to solicit employees on private property not open to the public has followed a predictable path. However, when the property …

Employee Protests Over Supervisory Changes: The Nlrb Versus The Circuit Courts, Andrew Gage Nichols

Mercer Law Review

The protection afforded workers by the National Labor Relations Act (NLRA) extends only to that class of workers defined by the Act as employees.' The term employee as defined by the Act specifically excludes "any individual employed as a supervisor." The Act defines a supervisor as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not …

Safeco And Secondary Product Picketing, Joseph F. Kinman Jr.

Mercer Law Review

In NLRB v. Retail Store Employees Local 1001 (Safeco), the Supreme Court held that primary product picketing at a neutral secondary retailer's place of business that can be reasonably expected to threaten the neutral party with ruin or substantial loss is prohibited by section 8(b)(4)(i,ii)(B) of the National Labor Relations Act (NLRA).

Safeco Title Insurance Company (Safeco) is a California corporation engaged in the operation of a title insurance company in Seattle, Washington. Safeco employees were represented in the collective bargaining process by the Retail Store Employees Union Local 1001, Retail Clerks International Association, AFL-CIO. Negotiations between Safeco and the …

Secondary Consumer Picketing: The First Amendment Questions Remain, Curtis L. Mack, Risa L. Lieberwitz

Mercer Law Review

The United States Supreme Court has been faced many times with the question of the constitutionality of governmental restrictions on picketing in light of the first amendment protection of free speech. In these decisions, the Court has applied various approaches and tests in an effort to resolve the tension between governmental interests in controlling picketing and individual rights of expression consistent with the first amendment. The Court has confronted these issues particularly in the area of secondary consumer picketing, which is regulated by section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended. These issues surfaced first in 1957 with …

Carbon Fuel: An End To The "Best Efforts" Duty By International Unions To Get Wildcat Strikers Back To Work?, Janne Castleberry

Mercer Law Review

The United States Supreme Court in Carbon Fuel Co. v. United Mine Workers held that an international union or its regional subdivision cannot be held liable to an employer for damages resulting from a "wildcat strike"' because it failed to use its best efforts to bring about an end to the unauthorized work stoppage. This holding reflects an effort by the Court to resolve the long standing conflict among the circuits on this issue.

Plaintiff, a coal mine owner and operator, originally brought suit against three local unions of the United Mine Workers of America (UMWA), UMWA District 17 and …

One Step Forward And Two Steps Back: The Shopping Kart - General Knit Dance, Duane C. Aldrich, Richard R. Carlson

Mercer Law Review

In the space of less than two years, the National Labor Relation Board's Shopping Kart Food Market, Inc. experiment was born and laid to rest in a drama of zealous forensics worthy of the union representation campaigns that Shopping Kart sought to deregulate. Shopping Kart, which would have radically curtailed Board review of the truthfulness of union and employer representation campaign propaganda, was disavowed by a new Board majority in General Knit, Inc., with the result that the Board's pre-Shopping Kart policy of scrutiny of campaign propaganda was substantially, if not completely, restored. Although Shopping Kart may …

A Survey Of Recent Retail Facilities Nonemployee Access Decisions, Russell A. Willis Iii

Mercer Law Review

The following is intended as a limited survey of recent decisions of the National Labor Relations Board and various state and federal courts on the subject of nonemployee access to employer property in certain labor relations contexts. To the extent that there is a thematic structure to the writing, it is that implied by interstices between the rationales of the Supreme Court decisions in Hudgen v. NLRB and Sears, Roebuck & Co. v. San Diego County District Council of Carpenters (Sears I). A brief description of those interstices is therefore an appropriate starting point.

Longshoremen's Embargo Of Soviet Goods: A Secondary Boycott Or A Political Protest?, Jeffrey L. Caddell

Mercer Law Review

In January of 1980 the International Longshoremen's Associaton, (ILA), boycotted any and all material destined for or originated from the Soviet Union. The boycott was announced as a political protest of the Soviet invasion of Afghanistan. Not surprisingly, the boycott spawned several lawsuits contesting the legality of the union action: New Orleans Steamship Ass'n v. Longshore Workers; Baldovin v. ILA and Walsh v. ILA. This comment will focus on these three decisions and their treatment of three major issues: first, whether the boycott is within the commerce jurisdiction of the National Labor Relations Board (NLRB); second, whether the …

Nlrb V. Yeshiva University: The Demise Of Academic Collective Bargaining?, Keith Denslow

Mercer Law Review

Although the National Labor Relations Act was enacted into federal law in 1935, the National Labor Relations Board did not extend the Act to cover employees of private, nonprofit universities and colleges until 1970. Shortly thereafter, in a separate but not unrelated decision, the Supreme Court decided NLRB v. Bell Aerospace Co., in which it held that all managerial employees are ineligible for coverage under the Act. Unknown to either the Court or the Board, the Bell decision placed in jeopardy the earlier Board decision to extend jurisdiction over university employees. A clash between the two decisions seemed inevitable …

Wright Line: The Nlrb Adopts The Mt. Healthy Test For Dual Motive Discharge Cases Under The Lmra, Raymond C. Mayer

Mercer Law Review

In Wright Line, the National Labor Relations Board (Board) abandoned its standard causation test for mixed motive or dual motive discharge cases arising under sections 8(a)(1) or 8(a)(3) of the Labor-Management Relations Act' (Act) and adopted in its stead the test enunciated by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle. In so doing, the Board wrote an elaborate opinion explaining the development of the conflicting tests applied by the Board and the federal courts of appeals, the Mt. Healthy test, and the applicability of that test to section 8(a)(3) cases.

Wright …