Law Commons^™

The Cost Of Realization By A Secured Creditor In Bankruptcy, J. Hobson Presley, Jr.

Vanderbilt Law Review

In October 1974, business failures increased by eighteen percent, reaching the highest level in any month since March 1971. The number of business failures for that month was the highest in eighty years.' As creditors seek to realize on their security interests, and encounter the problem of who should bear the expense incurred, they may discover that the term "secured" does not adequately describe the ability to recover advances made to the bankrupt debtor. Despite the confusing state of the law in this area, the increasingly inordinate expense of foreclosure in bankruptcy, and the pressures of the current economy, the …

The Great Section 38 Property Muddle, J. A. Cragwall, Jr.

Vanderbilt Law Review

Twelve full years have elapsed since section 38 property made its first appearance on the stage of tax law. In those twelve years, a complicated, confusing, ad hoc, and often inconsistent body of rulings and judicial decisions has grown up around the definitional regulation; words and phrases have acquired strange new meanings and connotations in the lush overgrowth of legal reasoning clinging to that regulation. The paradoxes in the regulation (such as that addressed in Weirick) and, more often, the ambiguities resulting from an almost universal failure by the regulations to define, instead of simply illustrate, its terms (such as …

The Role Of The Victim In The Prosecution And Disposition Of A Criminal Case, Donald J. Hall

Vanderbilt Law Review

A theoretical underpinning of the American system of criminal justice is the notion that a criminal misdeed is a wrong against the entire society.' Accordingly, the local, state and federal governments, acting as the representatives of society, assume the duty and responsibility of prosecuting the individual wrongdoer. While the individual victim of a crime obviously is the party directly" wronged," society interjects and institutes the formal proceeding to ascertain criminal responsibility and determine the appropriate sanction to be imposed upon the accused. This constitutes a basic distinction between civil and criminal cases; the aggrieved individual is the named litigant in …

Recent Equal Protection Decisions--Fundamental Right To Travel Or "Newcomers" As A Suspect Class?, Thomas R. Mccoy

Vanderbilt Law Review

The thesis of this article is two-fold. First, the Court's acceptance and application of the Shapiro-Dunn reasoning in Maricopa unintentionally demonstrated the intellectual inadequacy of that much-discussed line of reasoning. Read together, the Court's opinions in Shapiro, Dunn, and Maricopa establish a set of theoretical principles whose derivation is logically defective, whose consistent application would require unacceptable results in many other cases,and whose existence now forces the Court to distinguish arbitrarily other cases that, in terms of those theoretical principles, simply are not distinguishable from Shapiro, Dunn, and Maricopa. Secondly, despite the logical inadequacy and practical disutility of the theoretical …

Book Review, James W. Ely, Jr.

Vanderbilt Law Review

The hypothesis of continuity has now been ably tested and challenged by William E. Nelson's fine book, Americanization of the Common Law. Relying upon years of painstaking research in courthouse files throughout Massachusetts, Nelson utilizes unpublished opinions, court records, and attorneys' notes to fashion a striking interpretation of the significant changes that occurred in Massachusetts law following the Revolution. The author undertakes an analysis of the doctrines of substantive law and techniques of law-making and enforcement in order "to trace the emergence of modern American law... Nelson's stress upon nineteenth century majoritarianism and governmental coercion must be qualified by consideration …

Recent Cases, Robert L. Teicher, Timothy C. Maguire

Vanderbilt Law Review

In the 1930 decision of State ex rel. LaFollette v. Kohler, the Wisconsin Supreme Court rejected the earliest free speech challenge to a candidate expenditure limitation. The court held that the state's interest in protecting the integrity of its electoral process outweighed the individual's right of communicating with the public without governmental infringement." The court's identification of the communicative effect of campaign spending anticipated the United States Supreme Court's ruling in Stromberg v. California" that communicative conduct was entitled to protection from government infringement. The Court, however, hampered the effectuation of this protection by failing to define conclusively the point …

Preferential Economic Treatment For Women: Some Constitutional And Practical Implications Of Kahn V. Shevin, Margaret E. Clark

Vanderbilt Law Review

The apparent willingness on the part of three members of the Supreme Court to sustain legislation granting economic benefits to a selected subgroup of women, while failing to deal with the similar racially suspect classification issue in Defunis, is simultaneously puzzling and disturbing. The key to the result reached in Kahn may be the size of the benefit involved, or the fact that a state tax statute was involved;"' yet the underlying principles in the two cases are logically indistinguishable and the differing approaches taken by certain members of the Court in the two cases are difficult to reconcile...

Thus, …

A Remedy For The Discharge Of Professional Employees Who Refuse To Perform Unethical Or Illegal Acts: A Proposal In Aid Of Professional Ethics, Jon P. Christiansen

Vanderbilt Law Review

This note will discuss first the duties demanded of a professional in the proper exercise of his ethical responsibilities, including conduct demanded both by criminal statutes and by professional codes of conduct. Secondly, an examination will be made of three alternatives for the enforcement of professional ethics without the necessity of a right to recovery in the discharged employee. Thirdly,the limitations of traditional master-servant theory will be discussed as they relate to a possible cause of action for an "abusive discharge." Finally, this cause of action will be proposed and a consideration will be made of the elements of the …

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

Vanderbilt Law Review

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

Recent Cases, Linda A. Bunsey, David M. Thompson, Charles K. Campbell, Jr., Keith B. Simmons, Thomas C. Hundley

Vanderbilt Law Review

If the instant case, rather than Northway, is to become the accepted rule in the area of discounting, consumers and state lenders will be protected while the national bank-lenders will be burdened only slightly, if at all. National banks located in states that permit state lenders to discount loans at the maximum rate, with-out regard to the actual yield, will not be affected. National banks located in states that permit state lenders to discount only to the extent that the actual yield is within the statutory maximum will need to change their practices merely by charging the statutory rate only …

Federal Regulation Of Retirement Plans: The Quest For Parity, William J. Chadwick, David S. Foster

Vanderbilt Law Review

An analysis of the regulatory scheme behind the varied treatment of retirement plans reveals that many of the distinctions made are not justifiable. For example, an incorporated, one-man law firm with net income of $125,000 can make a deductible contribution to a money-purchase pension plan of $25,000. If the lawyer conducted his practice as a sole proprietorship, however, his annual deductible contribution would be limited to $7,500. The form in which the lawyer conducts his business determines the tax burden that he must assume in providing for his retirement. Thus, retirement parity remains unachieved, even after a comprehenisve revision of …

Title Vii Seniority Remedies In A Time Of Economic Downturn, Donald R. Stacy

Vanderbilt Law Review

This article will attempt to clarify the application of rules against employment discrimination in a period of rising unemployment by first examining the nature of the seniority system and then explaining the theory and mechanism of the conventional remedy. Next a review of recent problems that have tested that remedy will be undertaken, with special attention devoted to the peculiar problems incident to layoffs. Lastly, the article will consider the means by which an employer can minimize the liability that may result from the discriminatory impact of seniority systems.

Registration And Exemption From Registration Of Employee Compensation Plans Under The Federal Securities Laws, Dean L. Overman

Vanderbilt Law Review

This article is a basic summary of the rather complex federal securities laws concerning the registration of employee compensation plans. It centers around certain provisions of the Securities Act of 1933, the Securities and Exchange Act of 1934 and the Investment Company Act of 1940. The article initially discusses the necessity of registering the following four types of employee compensation plans: (1) pension, profit-sharing, stock bonus and similar plans; (2) employee stock purchase plans; (3) stock option plans; and (4) phantom stock plans. It then considers certain exemptions for these plans and the means available to employees to effect a …

Municipal Bonds And The Federal Securities Laws: The Results Of Forty Years Of Indirect Regulation, Bruce N. Hawthorne

Vanderbilt Law Review

Recent abuses occurring in the municipal bond markets have threatened investor confidence and caused Congress to reevaluate its original decision to exempt these securities from the Securities Act of 1933 and the Securities Exchange Act of 1934. This Note will analyze in some depth the securities regulation aspects of the municipal securities markets. First, because an understanding of the unique nature of municipal securities and their markets is essential, a description will be made of the characteristics of municipal bonds and municipal bond purchasers, the participants in the municipal securities industry, and the new issue and trading markets for municipal …

Recent Cases, Stephen K. Rush, Joseph A. Latham, Jr.

Vanderbilt Law Review

Conflicts of Law--Federal Preemption--Aviation Law

Appellant-defendants, the United States' and a national airline whose plane had been involved in a mid-air collision while under radar direction from the FAA, agreed to a settlement of the resulting actions for wrongful death that had been initiated in various federal district courts and consolidated in the Southern District of Indiana. Appellants then sought indemnity and contribution by cross-claim and third-party complaints against appellee-defendants, the owners of the other plane involved in the collision and the estate of its student pilot. The appellees contended that since no right to indemnity and contribution existed under …

An Examination Of Some Considerations Relating To The Adoption And Use Of The Last-In, First-Out (Lifo) Inventory Accounting Method, Mark F. Dalton

Vanderbilt Law Review

LIFO is a special statutory election available to taxpayers in lieu of the normal methods by which inventory identification and valuation is accomplished under section 471 of the Internal Revenue Code of 1954. The applicable Code section, section 472, and the regulations thereunder are highly technical provisions containing many pitfalls for the unsuspecting. Furthermore, a LIFO election for tax purposes affects a company's financial reports to shareholders and creditors, and raises business considerations that must not be overlooked. In addition, special interpretive problem areas and deficiencies present in the statute should give pause to taxpayers contemplating a switch to LIFO. …

Recent Cases, Richard C. Stark, Gerard T. Nebel, Craig V. Gabbert, Jr., Mary E. Mann

Vanderbilt Law Review

Recent Cases

Administrative Law--Federal Trade Commission Act--Restitution Held Improper in Section Five Cease and Desist Order

Richard C. Stark

Congress enacted section five'° of the Federal Trade Commission Act in 1914 to supplement" the antitrust provisions of the Sherman Act.'" The section declared unfair methods of competition illegal and placed the power to define and prohibit unfair methods in the hands of an independent regulatory commission, the FTC.' In conferring this power, Congress intended this body of experts to educate and guide the business community toward the goal of securing higher standards of business conduct.

Sherman Act, antitrust

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Constitutional …

Enterprise Coverage Under The Fair Labor Standards Act: An Assessment Of The First Generation, Mack A. Player

Vanderbilt Law Review

Some thirteen years have passed since Congress created the concept of "enterprise coverage," a concept unique to social legislation. With the appearance of two recent Supreme Court decisions'and the passage of the Fair Labor Standards Act Amendments of 1974 most of the crucial coverage issues arising under the Fair Labor Standards Act have now been resolved. It is appropriate therefore to review the coverage provisions of this unique and complicated statute, with particular emphasis upon the aspects of "enterprise coverage."

Tax Problems Associated With The Incorporation Of A Partnership: Revenue Ruling 70-239h, Peter Olsen

Vanderbilt Law Review

The publication of Revenue Ruling 70-239 creates concern with respect to the possible impact of the very broad language of the Ruling in areas not specifically covered. This concern relates to the availability of an ordinary loss deduction under section 1244; various personal holding company and "subchapter S" problems; the impact on section 357(c) and section 1239; the effect on basis computations and the control requirement of section 351; and holding period considerations under section 1223. This article will attempt to examine Revenue Ruling 70-239 with a view to (1) evaluating the accuracy of the conclusion that all three corporation …

Narcotics Offenders And The Internal Revenue Code: Sheathing The Section 6851 Sword, John M. Fite

Vanderbilt Law Review

This Note first will analyze the Internal Revenue Code provisions supporting the current crackdown by the IRS on suspected narcotics dealers. Secondly, it will examine the split in the federal circuit courts of appeal on the issues of the availability of Tax Court review of an assessment made pursuant to a section 6851 termination of a taxable year and the availability of equitable or statutory protections to prevent the seizure and sale of property belonging to the taxpayer. Lastly, a discussion of the propriety of such conduct by the IRS and its constitutionality in light of recent Supreme Court decisions …

Licensee Estoppel And Royalty Payments After Lear: Inconsistencies Within The Lower Courts Circumvent Lear Rationale, Henry P. Doggrell

Vanderbilt Law Review

Article I of the Constitution' expressly provides Congress with the authority to grant inventors exclusive rights to their discoveries for limited periods to promote the development of new ideas and innovations. By according the inventor-patentee the seventeen-year right either to exclude all others from making, using, or selling his invention or to contract for its limited use in the form of assignments or licenses, Congress has attempted to provide the initiative and incentive necessary to encourage the continued progress of science and the arts.' Moreover, statutory safeguards, which presume the validity of the patent until a contesting party establishes its …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

AMERICAN CORPORATIONS AND PERUVIAN POLITICS

By Charles T.Goodsell

Cambridge, Mass.: Harvard University Press, 1974. Pp.vi, 272. $14.00.

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BRITISH INDUSTRY AND EUROPEAN LAW

Edited by George W. Keeton and S.N. Frommel

South Hackensack, N.J.: Fred B. Rothman & Co., 1974. Pp. xiv, 206. $17.50.

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BUSINESS TRANSACTIONS WITH THE U.S.S.R.

Edited by Robert Starr

ABA Press, 1975. Pp. xvii, 545. $30.00.

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CANADIAN PERSPECTIVES ON INTERNATIONAL LAW AND ORGANIZATION Edited by R. St. J. Macdonald, Gerald L. Morris and Douglas M.Johnston

Toronto: University of Toronto Press, 1974. Pp. xx, 972.$27.50.

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DAS EUROPA DER SIEBZEHN: BILANZ UND PERSPEKTIVEN VON 25 …

The Fairness Myth, Victor M. Earle, Iii

Vanderbilt Law Review

Any type of fairness doctrine for liability, no matter how superficially if not seductively appealing, would effectively destroy the guarantee of professionalism that the securities law and the ac-counting profession have for so long sought to instill in financial reporting. Without the assurance that accountants are consistently applying those principles that- find general acceptance within the accounting profession, the accountant's opinion will mean nothing to a shareholder, investor, or creditor, unless by some magic he can personally observe the particular "fairness" bias of the individual accountant who performed the audit.51 Instead of enhancing the stature of the accountant's opinion and …

Truth In Financial Statements: An Introduction, Douglas W. Hawes

Vanderbilt Law Review

When used in relation to a periodical, the word "symposium"refers to "a collection of opinions on a subject." The word derives from the Greek "sympinein," to drink together, and originally was applied to a drinking party in which conversation and intellectual entertainment played a vital part. To our "party" we have invited a distinguished group of authors representing in some cases widely differing points of view. They have contributed articles dealing with various aspects of these problems of financial reporting and auditing. We leave to you, the reader, and to those engaged in the continuing debate the final judgment on …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. Admiralty Shipowner's Warranty of Seaworthiness extends to any Regularly Used Mode of Ingress or Egress

Award of Prejudgment Interest in Admiralty may be Denied Party Substantially at Fault

Contribution will lie against the United States in Non-collision Maritime Cases when United States and Third Party Adjudged Mutually Negligent

Admiralty Jurisdiction does not Extend to Shoreside Injury Caused by Unloaded Cargo

Admiralty Jurisdiction does not Extend to Shoreside Injury Caused by Negligent Handling of Shipowner's Dunnage when Stevedore uses Own Equipment

2. ARBITRATION

Foreign Arbitration Award may be Enforceable at Bankruptcy although Issued after Initiation of Bankruptcy Proceedings

3. CONTRACTS …

Recent Developments--Recent Decisions, Philip B. Barr, Jr., Michael Stukenberg

Vanderbilt Journal of Transnational Law

All nations recognize the enormous problem of marine pollution. The sources of marine pollution are definable, and there are methods by which these sources may be restricted. Virtually all mankind would prefer less pollution to more. Prevention, however, becomes less attractive in light of its costs, which assume both political and economic characteristics. Varying political and economic climates coupled with problems of sovereignty and national self-interest render agreement on the imposition of standards difficult. This Recent Development will chart past and present efforts at the preservation of the marine environment, consider the issues confronting the United Nations Third Conference on …

Special Project, Harold V. Morgan, Jr. Editor In Chief

Vanderbilt Journal of Transnational Law

Of the institutions common to the European Communities, probably none has had greater impact on European integration than the Court of Justice. Throughout its case law, the Court has consistently emphasized the federal character of Community law and the secondary importance of national law of the Member States in areas covered by the establishing treaties. Especially in recent years as economic expansion has slowed and Member States have reverted to national rather than federal solutions to fiscal and political dilemmas, the Court remains the most forceful exponent and practitioner of the Common Market and European policy.

In response to the …

The Community Court And Supremacy Of Community Law: A Progress Report, Peter Hay, Vicki Thompson

Vanderbilt Journal of Transnational Law

The dedication of an annual issue of the Vanderbilt Journal of Transnational Law, to the case law of the Court of Justice of the European Communities is an appropriate tribute to the significant contribution of the Community Court to the integration of the European Communities. The Court of Justice is perhaps the most remarkable and successful of the common institutions (Council, Commission, Parliament, and Court), which the process of European integration has produced thus far. The Communities--Common Market, Coal and Steel Community, and Euratom--have been beset by numerous political and economic problems; integration beyond the original Treaties, and sometimes within …

Legal Aspects Of A United States Foreign Sports Policy, James A.R. Nafziger

Vanderbilt Journal of Transnational Law

The father of the modern Olympic Games, Baron Pierre de Coubertin, envisaged international athletic exchange as the "free trade of the future." No nation would regulate this trade to its political advantage. The Olympic Games, as well as other international political arenas, would be unpolluted by political currents. To a remarkable extent, considering the course of twentieth century history, these aspirations have been met. But athletic exchange, like other forms of human interaction, nevertheless remains exposed to sovereign intervention; a measure of politics is inevitable in any transnational activity, whether in the United Nations or a global convention of medieval …

Recent Decisions, Anne Markey, James F. Maddox, Thomas C. Eklund, Thomas F. Taylor, Ralph Vinciguerra, Clark Mervis

Vanderbilt Journal of Transnational Law

Admiralty--Damages in a Maritime Collision or Stranding Caused by Mutual Fault Must be Apportioned According to the Comparative Negligence of the Parties

Anne Markey

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Admiralty--Wrongful Death--General Maritime Law Provides Remedy for Pain and Suffering of Decedent Incurred in Wrongful Death on High Seas but not for Funeral Expenses

James F. Maddox

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Arbitration--Securities Regulation--In International Sale of Securities, Arbitration Agreement is Binding not Withstanding Non-Waiverability of Judicial Remedy of Securities Exchange Act of 1934

Thomas C. Eklund

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IMMIGRATION--ALIEN COMMUTERS, BOTH DAILY AND SEASONAL, WHO HAVE ONCE OBTAINED THE STATUS OF IMMIGRANTS ARE PROPERLY CLASSIFIED AS SPECIAL IMMIGRANTS LAWFULLY …