Law Commons^™

The Taxation Of Interest -- Free Loans, James T. O'Hare

Vanderbilt Law Review

The dramatic rise in interest rates in the United States in the past few years has given added significance to the uncertain tax consequences of interest-free loans made between family members, between corporations and shareholders, and between affiliated corporations. Such loans can create a variety of tax problems depending on the relationship of the parties. An interest-free loan from one family member to another may constitute a gift equal in value to the use of the money loaned or even to the amount of the entire principal. A corporation that makes an interest-free loan to one of its shareholders not …

Abstention: The Supreme Court And Allocation Of Judicial Power, Randall P. Bezanson

Vanderbilt Law Review

In an era of continually expanding federal judicial power, the Supreme Court has fashioned and employed several devices designed to delegate certain classes of federal question litigation to the state court systems. Among these devices are the doctrines of abstention, comity, and exhaustion of state remedies. Implementation of these doctrines has enabled the Supreme Court to maintain state judicial presence in federal question litigation and retain at least the appearance of a manageable federalized judicial structure. This article will attempt to analyze the function of the abstention doctrines as judicially-created tempering devices. Following a brief discussion of the factors that …

The Tennessee Rule Against Perpetuities: A Proposal For Statutory Reform, C. Dent Bostick

Vanderbilt Law Review

For several decades, there has been agitation for reform of the common-law Rule Against Perpetuities. For the most part, the reformers have urged that improvements in the Rule and the manner of its application be accomplished through legislative enactment.' Only a few jurisdictions have opted for reform by the judiciary. Thus far, there has been no legislative reform of the Rule in Tennessee; the appellate courts of the state continue to apply the Rule inits common-law form with all the confusing rubrics attached to it by centuries of development. The condition of Tennessee's law on the subject contrasts sharply with …

The Original Issue Discount Deduction In Bonds-For-Noncash Property Exchanges, Charles L. Almond

Vanderbilt Law Review

The first codification of the United States Internal Revenue laws gave a corporation a deduction from income of "[a]ll interest paid or accrued within the taxable year on its indebtedness. ...This same language is presently in force in the Internal Revenue Code of 1954. The statutory language authorizing the interest deduction has never dealt explicitly with the deductibility of discount arising upon a corporation's original issuance of bonds. Treasury Regulations promulgated pursuant to the interest deduction sections, however, have recognized continually that the statutory language embodies a deduction for original issue discount. 'The latest pre-1969 regulation, which limits itself to …

The Legal Status Of A National Bank's Automatic Stock Investment Service Under Sections 16 & 21 Of The Glass-Steagall Act Of 1933, H. Lee Barfield

Vanderbilt Law Review

For many years, commercial banks bought and sold common stock while acting in an agency capacity for their customers. Frequently, these transactions were made while the bank was acting as trustee or as custodian for its beneficiaries or principals. Generally,the banks did not advertise this service extensively, but limited promotional activities to prior bank customers. In 1973, a dramatic change began as several commercial banks, notably Security Pacific National Bank of Los Angeles and Chase Manhattan of New York,began to promote this service vigorously in advertising addressed to the general public through the various media. Threatened by the increased competition …

Recent Cases, Michael D. Kelly, Robert D. Tuke

Vanderbilt Law Review

Antitrust Law--Clayton Act--Statistics of Market Concentration and Increased Market Share are Insufficient to Show Violation of Section 7 When Other Factors Mandate a Conclusion that Competition will not be Substantially Lessened by the Contested Acquisition --

Preservation of a large number of marginal competitors does not necessarily result in the optimum level of competition, and size per se is not illegal' and should not be equated with anticompetitive effect. Seemingly, the competitive objectives of antimerger law have been infused with a theory characterized by socio-political feelings of hostility towards large, integrated corporations contrasted with friendliness toward small, independent business units …

Recent Developments, James D. Holland

Vanderbilt Law Review

The power to parole prisoners derives from the legislative power to define crimes and set penalties for offenses, and has been delegated by Congress and state legislatures to the federal and state parole boards.' Recent litigation of inmates' post-conviction rights in federal and state correctional systems has focused increasingly on the broad discretionary power that parole boards exercise by performing their statutory mandate... The recent development of a flexible concept of due process,' however, has permitted a finer balancing of governmental and individual interests than the prior requirement of a "full panoply" of procedural safeguards, or none at all, and …

Economic, Medical And Legal Aspects Of The Age Discrimination Laws In Employment, Irving Kovarsky, Dr. Joel Kovarsky

Vanderbilt Law Review

There is speculation that many colleges and universities will be hard hit in the near future by the EEOC because of sex discrimination. It can also be anticipated that the institutions of higher learning will soon be faced with many charges of age discrimination . Because of the limited funds available and the attitudes of some administrators, older employees who find it difficult to move to other jobs are given only small wage increases. This failure to match the cost of living of older employees while younger and more mobile members fare better proportionately may well be a sign of …

Negro Demonstrations And The Law: Danville As A Test Case, James W. Ely, Jr.

Vanderbilt Law Review

In at least some measure, the Negro demonstrations of the 1960's were an attempt to create tensions and intimidate the white public into taking actions favored by the black minority, or, that failing, to provoke such a savage reaction from the whites as to arouse national public opinion. Violence and threats of violence were an integral part of this strategy. It is to the credit of Virginia leaders at all levels that they recognized this overt threat and refused to yield to extra-legal tactics. One of the most unhappy legacies of the 1960's was the wide-spread notion that questions of …

Recent Developments, Mark J. Mathiesen

Vanderbilt Law Review

Under the existing statute Congress has attempted by legislation to encourage the development of HMOs as a viable alternative for the health-care consumer. As is often the casein the political world of Congress, the fanfare accompanying a legislative response has obscured the deficiencies of the answer. This act with its limited appropriations, restricted preemption language,and failure to support profit-making HMOs constitutes an experimental approach to the HMO concept, and therefore, only illusionary support for its development.

Book Reviews, Wythe Holt, Kermit L. Hall

Vanderbilt Law Review

The recent death of Earl Warren reminds us, rather sadly, that the great Chief Justice and "his" Court have been subjected to withering and sometimes vicious and unfair criticism from within the academic circle.' The heart of the criticism (most charitably put) has been that the Warren Court hastily, simplistically, and even unnecessarily attempted to elevate egalitarianism into a high,perhaps the highest, social value and standard for constitutional and governmental decision making. We like to think that we believe in a democracy free for all-that is the way we portray ourselves propagandistically to the rest of the world-but the truth …

The Less Restrictive Alternative In Constitutional Adjudication: An Analysis, A Justification, And Some Criteria, Robert M. Bastress, Jr.

Vanderbilt Law Review

The past two decades have witnessed enormous changes in both substantive constitutional law and the courts' approach to constitutional questions. The frequent application of the doctrine of less restrictive alternatives has been a factor of increasingly significant proportions in effecting these changes. Although the doctrine has long been part of our jurisprudence,' it did not begin to have a serious impact until the Warren Court years, and, despite its widely diversified use today, the concept is almost always applied without discussion. Succinctly and broadly stated, the doctrine requires that a state not employ a specific means to accomplish an admittedly …

Insurance -- 1954 Tennessee Survey, Robert W. Sturdivant

Vanderbilt Law Review

There were only two cases reported during the survey period on the subject of liability insurance. In the first of these, Rural Education Ass'n, Inc. v. American Fire & Casualty Co., the insured had notice of an accident on the day it occurred. Suit for injuries growing out of the accident was filed nearly seven months later, and not until the day after suit was filed did the insured notify the insurer of the accident. After judgment was obtained against it, the insured brought the present suit against its insurer. The insurance policy required that notice be given "as soon …

The Organized Bar--Yellow Brick Road To Legal Services For The Poor, Lawrence L. Thompson

Vanderbilt Law Review

The experience of GILS-GLSP demonstrates that the extensive investment of time necessary to involve the organized bar in the legal services effort can make a vital contribution to the development of a stable, professional, statewide, legal services program. Bar support eases access to the political process, improves community relations, and facilitates program funding. Furthermore, bar support helps reduce the political strife that has heretofore plagued legal services programs. The rewards of such an approach can be great. Adequate funding obtained with active bar support has enabled GILS-GLSP to provide increasingly comprehensive legal services to indigent clients. From a modest budget …

The Private Use Of Public Power: The Private University And The Power Of Eminent Domain, Charles Fels Special Projects Editor, N. T. Adams, Richard Carmody, Margaret E. Clark, Randolph H. Lanier, James C. Smith, Robert M. White

Vanderbilt Law Review

The study which follows attempts to trace, in a necessarily limited fashion, the evolving use of eminent domain on behalf of private interest groups throughout the last century and a half of American legal history. Part One of the study traces the broadening scope of eminent domain in the United States during the 19th and 20th centuries, focusing on the direct use of eminent domain by private interest groups as a key element in the increasing breadth of the power. Part Two delineates the process whereby one modern private interest group-an informal aggregation of American colleges and universities-succeeded in acquiring …

The Court, The Constitution, And Chief Justice Burger, William F. Swindler

Vanderbilt Law Review

Although the constitutional crisis of 1973 has not yet demanded a definitive response from the Supreme Court, it obviously has established a landmark in the ultimate history of Warren Burger's Chief Justiceship. While the unprecedented confrontation between executive and judiciary was not carried beyond the Court of Appeals for the District of Columbia, Burger's old court,' and although the prospective confrontation between executive and Congress did not--at least in its first round-- reach a stage of review on the merits, the questions presented went to the cornerstones of Anglo-American constitutional theory itself. The case of Vice President Agnew raised issues …

Alternative Gains Tax Treatments Of Decedents' Appreciated Capital Assets, D. Allen Grumbine

Vanderbilt Law Review

The present treatment of appreciated assets under section 1014' of the Code permits a great deal of accrued appreciation to escape the income tax. While decedents pay a greater estate tax because asset appreciation swells their estates, they pay no gains tax at death on this accrued appreciation. Moreover, the recipients of the decedent's property generally take a stepped-up basis for the property equal to its fair market value at the time of death. A great deal of criticism has been leveled at this system, and numerous proposals have been made for remedying the situation: imposition of a capital gains …

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 …

Recent Cases, Journal Staff

Vanderbilt Law Review

Antitrust Law--Robinson-Patman Act--To Satisfy the "In Commerce" Requirement of Section 2(a) at Least One of the Allegedly Discriminatory Sales in a Secondary-Line Case Must Cross a State Line

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Constitutional Law--Equal Protection--Exclusion of Pregnancy-Related Disabilities from State Salary Compensation Insurance Program Denies Equal Protection to Pregnant Employees

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Criminal Procedure--Grand Juries--Exclusionary Rule in Search and Seizure Cases Does Not Apply to Grand Jury Proceedings

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Securities Regulation-Rule 10b-5--Plaintiffs Who Are Neither Purchasers nor Sellers of Securities May Recover Under Rule 10b-5 if Injured in Their Capacity as Investors as a Direct Consequence of Fraud in Connection with a Securities Transaction …

Credit Discrimination Against Women: Causes And Solutions, Margaret J. Gates

Vanderbilt Law Review

This article deals both with the laws that cause credit discrimination against women and with those that have been and could be formulated to solve the problem. It first explains the nature and importance of the problem, then discusses the apparent legal and economic bases of the discrimination, and finally explores the adequacy of existing and proposed remedies.

Budget Reform And Impoundment Control, L. Harold Levinson, Jon L. Mills

Vanderbilt Law Review

Impoundment has become a household word within the past two years, as controversy has raged over President Nixon's cutbacks of funds. Numerous significant governmental programs have been curtailed or disrupted. State and local governments face confusion about future funding. In dozens of cases, the lower federal courts have reviewed the exercise of Presidential discretion during the execution of appropriations, and in most cases the courts have determined that the President acted improperly. The underlying problem evidenced by impoundment remains unsolved, however, since it arises from tensions that build up throughout the budget process of the federal government, from the preparation …

The Evaluation Of A Clinical Legal Education Program: A Proposal, Junius L. Allison

Vanderbilt Law Review

Even though the Code of Professional Responsibility sets only general standards for competency, the competence of individual lawyers is now an area of active inquiry by the courts. Likewise, Legal Services are subject to regular evaluations. While these evaluations have had poor track records, the fault lies with their administration rather than their concept. If the practice of law is subject to scrutiny, it follows that schools for training the lawyers, and certainly parts of their curricula, such as clinical programs, can be evaluated." Legal education on its most basic level is preparation for a profession, the 'public profession of …

The Patient Rights Advocate: Redefining The Doctor-Patient Relationship In The Hospital Context, George J. Annas, Joseph M. Healey, Jr.

Vanderbilt Law Review

To change the traditional doctor-patient relationship in the health facility context, one must begin with a complete statement defining the rights, both those legally recognized and those granted as a matter of hospital policy, that should be afforded to all patients. This document should then be made available to all patients and hospital staff and to members of the community in general. Its first purpose is educational. To perform its second purpose-the assurance that rights are afforded--a patient rights advocate system should be adopted in the hospital. The advocate must have the power to exercise, on behalf and at the …

The Monkey Laws And The Public Schools: A Second Consumption?, Frederic S. Le Clercq

Vanderbilt Law Review

Recent events suggest that the creationist movement is both potent and truly national. in scope. In California, the science curriculum guidelines for public schools were modified by a sympathetic state board of education to accommodate the creationist position.' Science textbooks for use in the public schools of California are being edited to dilute passages on evolution, and creationists almost achieved express recognition of their beliefs in the science texts. In Tennessee, a law has been passed that requires inclusion of the Biblical account of creation in biology textbooks used in the public schools." Similar legislation to require treatment of creationist …

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 …

Recent Developments, Author Unidentified

Vanderbilt Law Review

The frequent criticism of the strict locality test as the sole determinant of admiralty jurisdiction resulted in the Supreme Court's requirement of a significant relationship with traditional maritime activity in Executive Jet. The Court's failure to give lucid guidance to later courts in applying the new requirement in non-aviation cases was partially remedied by the Fifth Circuit's implementation of the maritime-nexus test utilizing a factor analysis in Kelly. For those courts that follow Kelly, this new interpretation of the test will provide needed guidelines for determining when admiralty should properly exercise jurisdiction. The courts should not limit themselves, however, to …

Recent Cases, Author Unidentified

Vanderbilt Law Review

Civil Procedure--Service of Process--California Long-Arm Statutes Abrogate State's Immunity Doctrine

Seeking recovery of money owed him by defendant European corporations;' plaintiff brought suit in a California state court.While attending federal district court in Florida for the sole purpose of giving a deposition in a trademark infringement suit instituted by one of the corporations, defendants' representative was personally served with process in the California action on behalf of himself and the defendant corporations. Defendants moved to quash service of process on the ground that the immunity rule prohibited service of civil process upon a witness in attendance in a court outside …

How Federal Judicial Administration Came To Be The Way It Is, Robert A. Leflar

Vanderbilt Law Review

Differences about how the business of federal circuit and district courts should be administered--as distinguished from how their cases should be decided--down through the years have presented a persistent conflict between an ideal of national uniformity and an effort to maintain local control over administrative details. In one sense this has been a contest between reformers who have sought increased efficiency in federal judicial administration and local judges whose rallying cry was judicial independence and whose personal interest was in continuing to run things as they were accustomed within their own little domains. Occasionally patronage was involved. This did not …

The Future Of First Amendment Overbreadth, J. W. Torke

Vanderbilt Law Review

In Broadrick, Justice White suggests that the willingness of the Court in the past to accord standing to litigants to raise the over-broad aspects of a statute without regard to their own conduct'depended on a "judicial prediction or assumption" regarding the threat to liberty that the statute posed.' The spirit with which the Court makes such predictions would appear to be determinative not only of the underlying standing issue but of the overbreadth claimas well." The key to discovering the paths by which the Court is "retreating" from its overbreadth holiday of the sixties lies in the recognition that the …

The Trade Act Of 1974: Section 337 Of The Tariff Act And The Public Interest, John F. Mcdermid

Vanderbilt Journal of Transnational Law

The Trade Act of 1974 amended section 337 of the Tariff Act of 1930, and thereby substantially modified the procedures for the conduct of United States International Trade Commission investigations concerning unfair practices in import trade. The Trade Act changed the role of the ITC from that of a relatively passive adviser on potential courses of action to the President to that of final judge, subject to Presidential override and judicial review, of whether a violation of the Act has occurred. Additionally, the Trade Act provides that in the event that the violation is found, the ITC may now issue …