Law Commons^™

Easy Cases, Bad Law, And Burdens Of Proof, Roger B. Dworkin

Vanderbilt Law Review

Easy cases, as well as hard ones, sometimes make bad law. Pickett v. Cooper,' for example, was a straightforward automobile accident personal injury case. Defendant's car, on the wrong side of the road,collided with the car in which plaintiff was riding. Defendant contended that a tire blowout, rather than negligent driving, caused his car to be in the wrong lane, and he introduced evidence to support that contention. Instructing on the doctrine of "sudden emergency," the trial court told the jury to find for defendant if they believed "it [to be] as likely as not" that a tire blowout produced …

Immunity From Prosecution And The Fifth Amendment: An Analysis Of Constitutional Standards, R. Anthony Orsbon

Vanderbilt Law Review

Transactional immunity, on one hand, affords a witness absolute immunity from prosecution for the offense to which the testimony relates, but testimonial immunity, on the other hand, provides protection only from the use of the testimony itself or any evidence derived' directly or indirectly from it--use and fruits immunity. Until the Supreme Court's recent decision in United States v. Kastigar, conflict over the immunity concept was best manifested by the attempts to formulate an appropriate characterization of the relationship between Counselman v. Hitchcock, which represents the transactional immunity approach, and Murphy v. Waterfront Commissioner of New York Harbor, representing a …

Recent Developments, Law Review Staff

Vanderbilt Law Review

The fourteenth amendment provides that "[n]o State shall . ..deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."' The amendment thus explicitly forbids the state to engage in certain conduct, but places no express restriction on the acts of private individuals. Although the Supreme Court has consistently held that state action is a necessary element of a fourteenth amendment violation, the concept of state action was expanded to cover activities arguably private in nature to the extent that by 1970 the Court …

Equal Protection, Economic Legislation,And Racial Discrimination, William Silverman

Vanderbilt Law Review

The drive to end racial discrimination now extends beyond blatant racial distinctions to less obvious and less intentional forms of unequal treatment; nonetheless, there still exist laws and governmental programs that are racially neutral on their face but that may have a racially discriminatory impact in practice. Such discrimination can take place when economic and social welfare legislation, lacking a sound economic grounding, attacks symptoms rather than causes and thereby unintentionally compounds the problems facing black people. At the same time, laws that are at the root of unequal treatment seem to go unchallenged. From the point of view of …

Exclusionary Zoning Practices: An Examination Of The Current Controversy, W. Harold Bigham, C. Dent Bostick

Vanderbilt Law Review

For the last 45 years the idea that local zoning administration is a highly desirable exercise of the state police power has become progressively more entrenched in urban thinking and planning. Although opponents of zoning have quarreled with details of administration or decried the failure of the Supreme Court to continuously oversee implementation of the zoning concept, they have assumed basic Euclidian zoning theory' to be beyond serious challenge. This assumption is no longer valid, for classic municipal zoning is on the firing line and its survival is by no means certain.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Due Process--Replevin Statutes Allowing Seizure of Property Without Notice and Opportunity for Hearing Violate Due Process Clause of Fourteenth Amendment

Constitutional Law--Right to Counsel--Absent Waiver,No Defendant May Be Imprisoned Unless Represented By Counsel At Trial

Federal Rules of Civil Procedure-Class Actions-Class Action Alleging Similar Injury by Separate Defendants Who Acted Similarly but Independently Allowed Under Rule 23(b)(3)

Securities Regulation--Securities Act of 1933-Access Of All Offerees To Additional Desired Information Required For Section 4(2) Private Offering Exemption

Torts-Joint Tort-feasors--Apportionment of Damages Among Negligent Joint Tort-feasors Based upon Relative Responsibility of Parties

Establishing Minimum Compensation Criteria For Use In Expropriation Disputes, Roger C. Wesley

Vanderbilt Law Review

The basic criteria suggested in this article are not intended to be exclusive determinative factors, and in most cases, mitigative considerations will continue to play a dominant role. It is hoped, however, that the present analysis will spur the organized initiation of additional proposals on standards and criteria, not only by executive departments and parliamentary chambers, but also by organized bar groups and other representatives of the private sector. The cumulative effect of new proposals hopefully will be the positive enlargement of rule of law considerations in expropriation disputes by a draft convention on investment protection, which to date has …

Party Reform, The Winner-Take-All Primary, And The California Delegate Challenge: The Gold Rush Revisited, James F. Blumstein

Vanderbilt Law Review

The legal issues underlying the California delegate challenge at the 1972 Democratic National Convention are the subject of this Article. The Article briefly will sketch some of the recent constitutional developments in party reform litigation. It will argue that winner-take-all primaries, especially in California because of its size, are violations of equal protection as interpreted by the voting rights cases decided during the past 40 years. Finally, it will take the superficially paradoxical position that despite its unconstitutionality, California's winner-take-all primary did not violate the rules governing delegate selection to the 1972 Democratic National Convention; therefore, unless declared unconstitutional by …

Deference Of Jurisdiction By The National Labor Relations Board And The Arbitration Clause, Alan C. Rosser

Vanderbilt Law Review

In 1935, when the Wagner Act was passed, arbitration was not used extensively as a method of settling labor disputes. Most parties to labor disputes relied on the National Labor Relations Board (NLRB) or the courts as means of settlement, rather than binding themselves to the decision of an arbitrator.' Gradually, however, with the increased avail-ability of more skilled arbitrators and the acute awareness of the costs of outside solution, arbitration has become a highly popular method of settling labor disputes. It is estimated that 94 percent of all collective bargaining agreements now provide for arbitration of grievances not settled …

Whither The Concept "Affected With A Public Interest"?, Sterry R. Waterman

Vanderbilt Law Review

We of the law and we who administer the law are challenged today more acutely than ever before. Many serious-minded people question whether the law is or can ever be an instrumentality of social justice.Many of our citizens believe that, irrespective of the precepts of the law,the administration of the law frequently has been used as a device to frustrate the legitimate aspirations of those seeking to participate as equals with other Americans in the benefits of American society. The inclusion of more and more activities as activities "affected with the public interest" is evidence that there are some who …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Plaintiff, a major commercial publisher of medical journals,'brought a copyright infringement action for damages against the. United States--specifically, the National Institutes of Health (NIH) and the National Library of Medicine (NLM), agencies of the Department of Health, Education, and Welfare--in the United States Court of Claims.Plaintiff alleged that defendant had infringed its copyrights by making unauthorized photocopies of plaintiffs medical journal articles and distributing them free of charge to library users on a no-return basis. Defendant conceded that it had made photocopies of each of the articles in question and that plaintiff was the record owner of the copyright registrations …

Recent Development, Law Review Staff

Vanderbilt Law Review

Prisons in the United States house approximately 220,000 felons,'95 percent of whom will eventually return to society Most state legislatures have delegated to prison administrative bodies the power both to establish regulations prescribing proper prison conduct and to impose sanctions for their violation. Prison administrators thus have been granted wide latitude in establishing the procedures by which prisoners are determined to be guilty of disciplinary infractions and punished. Frequently, prisoners who allegedly have violated prison standards are not afforded notice of their offenses, are judged by their accusers, and are awarded disproportionately severe punishment, such as solitary confinement or loss …

Charitable Remainder Trusts--A Need For Further Reform?, R. Frank Murphy, Ii

Vanderbilt Law Review

The proposals offered in this Note are meant to suggest that are turn to some form of the flexible, well understood charitable remainder trust of pre-1969 days would prove most satisfactory to the needs of donors, charities, and attorneys. With modifications similar to those recommended above, the familiar concept of traditional income and remainder interests could be reinstated, with its weaknesses eliminated. If reversion to an improved form of the old law is deemed unacceptable,it nevertheless appears that a revision of the tripartite structure of the 1969 Act is mandatory. The complexity and lack of flexibility inherent in the new …

Rule 144: Sec Regulation Of Dispositions Of Securities By Controlling Persons And Private Places, Paul L. Sloan, Iii

Vanderbilt Law Review

In recent years, dissatisfaction with the law that governs the disposition of securities by controlling persons' and private places under the Securities Act of 1933 has been voiced in numerous commentaries.Although criticism has been directed at varying facets of the problem,the displeasure of critics has resulted from two fundamental objections: first, the unnecessary ambiguity that heretofore has enveloped public resale of privately placed securities and, to a lesser degree, resale of securities by controlling persons; and secondly, the failure of the present law adequately to effect the disclosure policy of the Securities Act of 1933 and of the Securities Exchange …

The New Catv Rules: Proceed On Delayed Yellow, Roscoe L. Barrow

Vanderbilt Law Review

Elites largely govern our nation's current decision-making process.The average citizen's failure to participate in that process perhaps derives largely from his inability to inform himself adequately on all the issues. However, the ability of cable television (CATV) to place each person in complete command of his informational and entertainment environment has thrust society upon the threshold of an electronic communications revolution. Indeed, if CATV is allowed to develop its full potential, the individual will not have to receive information and entertainment passively. Rather, CATV's virtue of two-way communication will permit him to transmit as well as receive information. His access …

Special Project - Nashville Model Cities: A Case Study, Richard W. Creswell, Alan Gates, Paul M. Kurtz, Paul R. Regendorf, Samuel W. Bartholomew, Jr., Richard K. Greenstein

Vanderbilt Law Review

The future of the Model Cities program in Nashville is difficult to predict. As of this writing, the program is approaching the end of the first of five action years. The suit filed by the CCC in April 1971, is,more than a year later, still pending. It is, of course, possible that the program may eventually prove successful, but such a result is unlikely. Even if the CCC is replaced as the official citizen participation structure for the program, the ideological constituency from which the group derives its strength will remain. Furthermore, as the CDA continues to build an ad …

Recent Developments, Law Review Staff

Vanderbilt Law Review

In the recent decision of Bradley v. School Board, a Virginia federal court ordered the consolidation of the predominantly black Richmond school district with the surrounding all-white suburban school districts of Henrico and Chesterfield Counties. This decision marks the first time that a court has consolidated two or more autonomous school districts for the purpose of achieving a racial balance in the schools that reflects the racial composition of the consolidated areas as a whole. While Judge Merhige in Bradley punctiliously followed the principles enunciated by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education and its earlier desegregation …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Procedure--Class Actions--Order Dismissing Class Action that Leaves Plaintiff To Litigate a Small Monetary Claim Is Not a Final Appealable Order Under 28 U.S.C. § 1291

Plaintiff consumer, claiming to represent one and one-half million purchasers of defendants" products, filed a class action under section 4 of the Clayton Act, seeking treble damages, costs, and attorney's fees from defendants for alleged antitrust violations. Defendants successfully moved for a stay of proceedings pending the district court's determination of whether the case could be maintained as a class action.The court found the class unmanageable and, in accordance with Rule 23(c)(1) of the …

Congressional Amnesty For War Resisters: Policy Considerations And Constitutional Problems, Louis Lusky

Vanderbilt Law Review

The protean term "amnesty" is not mentioned in the Constitution,but it has been used elsewhere in many different senses: clemency for convicted criminals, clemency for offenders not yet apprehended or prosecuted, and immunity from punishment for acts not yet committed that ordinarily would be criminal. The term has been employed whether the offenders were listed by name or specified by general classification,and it has sometimes been used as a synonym for the constitutional term"pardon." On occasion the substance of amnesty has been granted without use of the term at all. In this article, the term "amnesty" is used in its …

Recent Developments, Law Review Staff

Vanderbilt Law Review

Confession of judgment procedures' have seldom received unrestricted legislative approval by the states--the vast majority of jurisdictions have enacted legislation either to eliminate the practice entirely or to limit severely its use. Unrestricted employment of the procedure in consumer transactions is prevalent only in the states of Pennsylvania, Illinois and Ohio, which account for a preponderance of the confessed judgments in the United States today. Although the constitutional validity of cognovit notes has been questioned on numerous occasions, the Supreme Court had never addressed this issue until its recent decisions upholding the use of these devices in D.H. Overmyer Co. …

Recent Development, Law Review Staff

Vanderbilt Law Review

This Comment will explore the origin, evolution, and refinement of the common-law classifications, with particular focus upon recent decisions abrogating these distinctions in favor of a broader standard of ordinary care under the circumstances.

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The problem of defining a landowner's' responsibility toward persons who come upon his premises has been the subject of longstanding controversy. While some commentators have argued that the limited responsibility placed by the common law on landowners does not comport with modern principles of negligence liability proponents of the common-law standards have urged that the common-law scheme of entrant classes--trespasser, licensee, invitee--provides a workable approach …

Book Reviews, Garrett Power, Joseph M. Boyd, Jr.

Vanderbilt Law Review

The Environmental Law Reporter in the Classroom

The Environmental Law Reporter' is a cumulative monthly loose-leaf service devoted chiefly to the environmental issues confronting private attorneys, governmental officials, and teachers. During the fall semester of 1971, the Reporter was employed as a text for the University of Maryland's basic course in environmental law. This review will attempt to measure its potential as a teaching tool.

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Guidebook for Litigation

The common law is still the most useful and flexible weapon in the arsenal of those who care enough about the quality of our environment to do something about it. This …

Congressional Power To Define The Presidential Pocket Veto Power, Arthur S. Miller

Vanderbilt Law Review

Two recent exercises of the "pocket veto" by President Nixon have evoked controversy over the constitutional distribution of power and responsibility for negativing congressional actions! On December 14,1970, Congress sent to the President Senate Bill 3418, the Family Practice of Medicine Act. The bill had originated in the Senate, which recessed at the close of business on December 22, 1970, until 12:00 o'clock noon on December 28. Before recessing, unanimous consent had been given the Secretary of the Senate to receive messages from the President during this period. At about the same time House of Representatives Bill 3571, a private …

Recent Cases, Law Review Staff

Vanderbilt Law Review

RECENT CASES

Antitrust--Sham Exception--Allegations of Purposeful and Concerted Use of Adjudicatory Processes to Harass and Deter Parties From Having Free Access to These Processes Constitute a Cause of Action Under Antitrust Laws

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Criminal Procedure--Confessions--Determination of Confession's Voluntariness by Preponderance of the Evidence Is Not Violative of Fifth Amendment Prohibition Against Self-Incrimination

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Landlord and Tenant--Forcible Entry and Detainer Statute--Provisions for Immediate Trial and Limitation of Triable Issues Not Violative of Due Process or Equal-Protection Clauses

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Securities Regulation-Section 16(b) of Securities Exchange Act of 1934--Insider May Sell Enough Stock To Bring His Holdings Below Ten Percent and Within Six …

Standing, Justiciability, And All That: A Behavioral Analysis, Robert A. Sedler

Vanderbilt Law Review

Whenever suit is brought in a federal court to challenge the constitutionality or validity of governmental action, the initial response of the government is, almost invariably, "The Court should not hear this case." Several arguments are frequently used. If a state law or action of a state official is challenged, the state will argue that the suit should have been brought in state court' and that the federal court should"abstain" pending a state court determination of state law. When administrative action is challenged, the principal defenses are failure to exhaust administrative remedies and nonreviewability of the action. If the plaintiff …

Evidence Of Producer's Due Care In A Products Liability Action, Robert A. Bernstein

Vanderbilt Law Review

In a products liability case, evidence of defendant's due care in the manufacturing or processing operation can be a potent and sometimes critical factor in the decision of a judge or jury.' The question remains,however, whether such evidence is properly admissible under contemporary versions of the implied warranty and strict liability theories that have fashioned the recent revolution in consumer product law. The leading chronicler of the revolution, Dean Prosser, has noted the practical importance of the issue and has concluded, apparently without reservation, that in the ordinary case evidence of the defendant's due care is immaterial. The reasoning is …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Topics Discussed in Recent Cases:

Administrative Law--Freedom of Information Act--Unclassified Documents Physically Connected with Classified Documents May Not Be Withheld Under the National Security and Foreign Affairs Secrets Exemption

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Antitrust--Treble Damage Class Actions--Privity with Defendant Required To Maintain Suit

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Constitutional Law--Equal Protection-State Probate Code Discriminating in Favor of Males Violates Equal Protection Clause

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Constitutional Law--Federal Preemption--Atomic Energy Act Requires Exclusive Federal Regulation of Radioactive Discharges from Nuclear Power Plants

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Corporations -Shareholder Suits -Shareholder May Inspect Corporate Records Only for Proper Purpose Ger-mane to his Economic Interest As Shareholder, Not Merely To Further his Own Social and …

The Impact Of The Tax Reform Act Of 1969 On The Supply Of Adequate Housing, Kenneth J. Guido, Jr.

Vanderbilt Law Review

Hidden by the storm surrounding the more controversial changes in the Tax Reform Act of 1969 are subtle alterations in the tax structure that may significantly affect the rate and nature of real estate development. The Tax Reform Act amended provisions of the Internal Revenue Code directly applicable to real estate investments,' purposefully redesigning them in the hope of stimulating the construction and rehabilitation of rental housing, particularly low-income housing. The changes in the basic tax structure relative to real estate investments are an attempt to continue a national policy established in 1949, that of providing a "decent home and …

The Tennessee Water Quality Control Act Of 1971, Frank E. Maloney

Vanderbilt Law Review

The text of the Act and commentary that follows is the product of a larger study undertaken by Professor Maloney at the request of the 87th General Assembly of the State of Tennessee. This study was the subject of a seminar on environmental protection at the Vanderbilt University School of Law. Four of the participating students--Elbert E. Edwards, III, Thomas H. Graham, Robert D. McCutcheon, and Paul L. Sloan--drafted the proposed statute and commentary under Professor Maloney's supervision with the research assistance of the other members of the class. For many sections of the statute, the drafters drew heavily from …

The Tennessee Water Quality Control Act Of 1971: A Significant New Environmental Statute, Julian C. Juergensmeyer

Vanderbilt Law Review

Tennessee's new Water Quality Control Act' is one of the most significant pieces of environmental legislation to be produced in recent years. It is destined not only to revamp water pollution control in Tennessee but also to serve as a model for legislation in other states. The Act and commentary written by its drafter, Professor Frank E. Maloney, are printed following this article. Consequently, no attempt will be made to summarize the entire Act or to provide a detailed guide for its use. The purpose of this introductory article is to examine the salient, often innovative, features of the Act …