Law Commons^™

Business Judgment Dismissal Of Shareholder Derivative Suits By Board Litigation Committees: An Expanded Role For The Courts, David A. Beyer

Vanderbilt Law Review

This Recent Development examines the legal background of the shareholder derivative suit and the business judgment rule and then traces the evolution of the offensive use of the business judgment rule in board of director terminations of stockholder derivative actions. After examining other derivative suit dismissal decisions, the Recent Development analyzes whether Zapata adequately balances the competing interests of the shareholder and the corporate board. Finally, the Recent Development discusses the potential effect of Zapata on future litigation.

Estelle V. Smith: The Constitutional Contours Of The Forensic Evaluation, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In Estelle v. Smith,' the United States Supreme Court recognized for the first time that an evaluation of a criminal defendant by a mental health professional may implicate both the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right to counsel. The issues raised in Estelle are significant not only for the legal profession but also for those in the mental health professions who perform "clinical" evaluations for the criminal courts. Estelle involved the case of Ernest Smith, who was sentenced to death by a Texas jury in 1974. Prior to trial, the judge ordered a psychiatrist, Dr. Grigson, …

Health And Safety, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

My review of recent risk regulation policies necessarily starts with the new oversight group within the Office of Management and Budget (OMB), because it has been the dominant force for improvement thus far. Unfortunately, OMB's efforts have not been matched by a similar commitment at the agency level.

Venezuela Revisited: Foreign Investment, Technology, And Related Issues, Robert J. Radway, Franklin T. Hoet-Linares

Vanderbilt Journal of Transnational Law

A brief history of foreign investment in Venezuela is necessary to understand recent changes in Venezuelan foreign investment policy. The development of selected industrial sectors, including principally petroleum and mining, but also agriculture, electric power, manufacturing, banking, and insurance, has played a significant role in shaping Venezuelan foreign investment policy. The laws, policies, and their application can then be reviewed in practical terms to provide the practitioner with an understanding of the stated objectives of the host government within the context of Third World movements toward greater control over economic activities.

Recent Decision, Duane A. Wilson

Vanderbilt Journal of Transnational Law

The Fifth Circuit Court of Appeals has taken the instant opportunity to write an essay on the law of search and seizure on the high seas. Applying Ramsey, the majority found authority for the Coast Guard action, either under section 89(a) or through the consent of the Panamanian Government. Although both conclusions are open to dispute, the major question arises from the court's analysis of the constitutionality of the Coast Guard action. While a firm resolution of the confusion engendered by previous conflicting Fifth Circuit decisions is certainly desirable, the instant court's resolution fails to provide necessary analytical clarity. Judge …

A Comparison Between The Constitutional Protections Against The Imposition Of Involuntary Expatriation And A Taxpayer's Right To Disclaim Citizenship, Terri R. Reicher

Vanderbilt Journal of Transnational Law

This Note examines both sides of the coin: the constitutional protections given the individual fighting to retain his citizenship will be compared with the burdens, particularly the tax consequences, imposed on individuals wanting to relinquish citizenship. Section II examines the classic constitutionally-based expatriation material. It discusses the legislative history of expatriation law, including the 1978 amendments to the INA, reviews the major expatriation case law, and concludes with an analysis of Vance v. Terrazas, the most recent Supreme Court pronouncement on the nature of the "voluntary" conduct required to constitute expatriation. Section III deals with the tax aspects of expatriation. …

The Law Of The Flag, The Law Of Extradition, The Nato Status Of Forces Agreement, And Their Application To Members Of The United States Army National Guard, Fred W. Beesley, Jr.

Vanderbilt Journal of Transnational Law

With the advent of Project Capstone in 1980, the United States Army adopted a master European war plan which committed virtually every Army National Guard and Army Reserve unit to a large-scale field army for use in the European Theater of Operations. The plan was designed to combat a hypothetical offensive by tank-heavy Warsaw Pact forces through the centuries-old Fulda Gap invasion route in the central region of the Federal Republic of Germany, or through the relatively vulnerable North German Plain.

Actions by Warsaw Pact troops in Poland and Afghanistan increase the likelihood that United States contingency war planning will …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

International Regulation of Internal Resources By Mahnoush H. Arsanjani Charlottesville: University Press of Virginia,1981. Pp. 558. $37.50.

ANTITRUST AND AMERICAN BUSINESS ABROAD By James R. Atwood and Kingman Brewster, 2nd ed. Colorado Springs: Shepard's/Mc-Graw-Hill, 1981. Pp. 359 and 355.

FAMILY VIOLENCE: AN INTERNATIONAL AND INTERDISCIPLINARY STUDY By John M. Eekelar and Sanford N. Katz Toronto: Butterworth's, 1978. Pp. 572.

THE ARAB STATES AND THE PALESTINE CONFLICT By Barry Rubin Syracuse: Syracuse University Press, 1981. Pp. 298. $22.00.

THE KURDISH QUESTION IN IRAQ By Edmund Ghareeb Syracuse: Syracuse University Press, 1981. Pp. 223. $22.00.

THE CAMBRIDGE LECTURES Edited by Derek Mendes …

Anticompetitive Practices In Great Britain: Expanded Enforcement Under The Competition Act 1980, Carol B. Swanson

Vanderbilt Journal of Transnational Law

The current antitrust laws are scattered among numerous statutory provisions. The British approach to antitrust laws is expressed in separate attacks on restrictive practices as opposed to broad attacks on monopolies and mergers. Restrictive agreements are controlled through a public registration process and reviewed by a specially-created court. Resale price maintenance is banned through similar procedures. Monopolies and mergers are investigated differently, with entire market sectors referred to a commission especially designed to determine whether a monopoly or merger operates against the public interest. This overall statutory structure is both too narrow, and too broad. It is too limited because …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

A Cargo Container Used to Ship Packaged Units is not a "Package" for Purposes of Limiting the Carrier's Liability for Loss under COSGA

Exemption from Compulsory Military Service will not Act as a Bar to Citizenship for an Alien if the Classification was later Changed to Make Him Eligible to Serve

Indeterminate Detension of an Excludable Alien in a Maximum Security Prison, Pending Unforeseeable Deportation, violates International Law

Patentholders do not Violate Antitrust Laws by Licensing only Foreign Patents even though the Patent Dependency created Limits Domestic Competition

Arbitral Tribunal lacks Jurisdiction to Hear the Claims of a Corporation Qualifying …

The Concepts Of Similarity And Indirect Protection Under Eec Treaty Article 95: The Alcohol Cases, Steven R. Swanson

Vanderbilt Journal of Transnational Law

One of the purposes of the Common Market is to create a single economic unit in which the sector that produces a particular good most efficiently will do so while driving out less efficient industries. This maximizes the use of scarce monetary, raw material, and labor resources. For example, assuming that there are no trade barriers, if the Italians can produce grapes more cheaply than the Germans, they will do so and export the grapes to Germany. Conversely, Germany may be able to export cars if it can produce them more efficiently and cheaply than the other Common Market states. …

Recent Decisions, Daniel M. Fitzpatrick, William F. Buechler

Vanderbilt Journal of Transnational Law

Executive Power--President Has the Power to Block and Transfer Iranian Assets, Nullify Prejudgment Attachments, and Suspend Claims of United States Nationals in Implementing Executive Agreement for Release of Hostages

Petitioner sued the United States and the Secretary of the Treasury to enjoin enforcement of Treasury Department regulations and executive orders implementing an executive agreement with Iran that would nullify petitioner's prejudgment attachment of Iranian bank assets and prevent further litigation of its claim against Iran. The events leading up to this suit are relevant to a discussion of the legal issues.

Book Reviews, Jorge L. Carro, David S. Clark, Burns H. Weston

Vanderbilt Journal of Transnational Law

El Conflicto Honduras-El Salvador y El Orden Juridico Internacional --

On July 14, 1969, the armed forces of El Salvador invaded Honduras... This book provides an almost hourly account of the events preceding the conflict, the war plans executed before the conflict started, the initiation of Inter-American System machinery for settling disputes, the heated discussions among the representatives of the different nations of the OAS, and the consequences of the war itself. Also included is the necessary background on the political and economic conditions prevailing in both countries before the war and a thorough analysis of what "role law and …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

The Law of Transnational Business Transactions

Edited by Ved P. Nanda

New York: Clark Boardman Company, Ltd., 1981.Pp. 631. Looseleaf (Supplemented periodically). $75.00.

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Managing the Risks of International Agreement

By Richard B. Bilder

Madison, Wisconsin: The University of Wisconsin Press, 1981. Pp. 302. $22.50.

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The Family in International Law: Some Emerging Problems

Edited by Richard B. Lillich

Charlottesville, Virginia: The Michie Company, 1981. Pp. 164.

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International Aspects of Criminal Law: Enforcing United States Law in the World Community

Edited by Richard B. Lillich

Charlottesville, Virginia: The Michie Company, 1981. Pp.245.

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Boundaries: National Autonomy and its Limits …

Legal Aspects Of Doing Business With And In Hungary, Lajos Schmidt

Vanderbilt Journal of Transnational Law

A recent New York Times article describes Hungary as "the Communist world's economic showcase, with plenty of goods in the shops and a fair measure of political liberty." It points out that while Poland is struggling with idle factories and empty stores, Romania has introduced food rationing and Czechoslovakia may do the same, the Soviet Union is buying foreign grain to bridge the winter, and East Germany is feeling the impact of rising energy prices and a widening trade gap, Hungary is prospering. How can a small member of the Council for Mutual Economic Assistance (COMECON) with little mineral or …

Tax Havens, Charles R. Irish

Vanderbilt Journal of Transnational Law

Opinions about tax havens cover a wide spectrum. Some suggest tax havens present an unacceptable face of capitalism and inflict considerable damage on the economies of nonhaven countries. Others argue that havens offer relief from oppressive taxes and other regulations which inhibit the free and efficient flow of capital; and still others hold the view that tax haven status may act as a catalyst for economic development. Obviously, the opinions vary according to whether a person is a tax collector in a non-haven country, a taxpayer engaged in international business activities, or a government policymaker in a haven country.

The …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Article III of the United States Constitution does not Grant Congress the Power to Extend United States Courts' Jurisdiction over Suits by Foreign Plaintiffs against Foreign Defendants

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Under Federal Rule of Civil Procedure 37(B), the Courts have the Power to Impose Sanction of Personal Jurisdiction when a Party Fails to Comply with Discovery Order

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Foreign Sovereign Immunity--A Strict Construction of the Concept of Instrumentalities under the Foreign Sovereign Immunities Act

The Israeli Aerial Attack Of June 7, 1981 Upon The Iraqi Nuclear Reactor: Aggression Or Self-Defense?, W. Thomas Mallison, Sally V. Mallison

Vanderbilt Journal of Transnational Law

On June 7, 1981, the State of Israel conducted an aerial attack on the Iraqi nuclear reactor known as Tamuz I located near Baghdad. The attack was carried out by F15 and F16 aircraft supplied by the United States. The reactor was damaged severely and three Iraqi civilians and one French technician were killed. On June 8 Israel announced the attack and described it as an act of legitimate self-defense, claiming Iraq planned to construct nuclear weapons. On the same day the Republic of Iraq requested an urgent meeting of the United Nations Security Council to consider what it described …

Book Reviews, Journal Staff

Vanderbilt Journal of Transnational Law

Israel and Palestine--Assault on the Law of Nations by Julius Stone.

Baltimore: The John Hopkins University Press. 1981. Pp.223. $17.50.

Reviewed by Barry Hart Dubner

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Treatise on Air--Aeronautical Law. Nicolas Mateesco Matte.

Toronto: The Carswell Co. Ltd., Pp. 832.

Reviewed by John M. Lindsey

Recent Decisions, Robert C. Goodrich, Jr., Christopher Q. King, Jay D. Grushkin

Vanderbilt Journal of Transnational Law

Recent Decisions

Jurisdiction and Procedure - Forum non Conveniens--The Foreign Plaintiff is Entitled to Less Deference in His Choice of Forum than is a Citizen or Resident Plaintiff; A Change of Law Resulting from Dismissal is Not a Substantial Factor in the Forum non Conveniens Analysis.

Robert Charles Goodrich, Jr.

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ALIENS--Exclusion of Aliens from State Probation Officer Position is not Unconstitutional because it Falls Within the Political Function Exception

Christopher Qualley King

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SOVEREIGN IMMUNITY--Ship Owning Corporation's Contacts with United States are Sufficient to Extend Jurisdiction over Action for Damages involving Maritime Collision: Financial Effect on a United States …

Symposium Introduction, Terry Calvani

Vanderbilt Journal of Transnational Law

This Symposium issue of the Vanderbilt Journal of Transnational Law presents a collection of excellent articles on current antitrust law and United States international trade practices by some of the most knowledgeable scholars in the field, all of whom possess not only superb academic credentials but also a wealth of experience in international antitrust practice. Wilbur Fugate, former chief of the Foreign Commerce Section of the Antitrust Division and a distinguished author on antitrust and foreign commerce, opens the Symposium by examining the Webb-Pomerene Act" in light of the very recently enacted Export Trading Company Act of 1982...

The Symposium …

The Impact Of United States Antitrust Law On The Balance Of Trade, David N. Goldsweig, Kenneth D. Enborg, Thomas F. Walton

Vanderbilt Journal of Transnational Law

This Article explores the underlying propositions that the United States antitrust agencies have created a barrier to the export of United States industrial goods or have impeded their domestic manufacture with respect to this nation's major trading partners. We conclude that neither proposition is well supported by solid evidence, although improved cooperation among Government and business and a less litigious climate are desirable in this area as well as all other industry-government relations." This Article first considers the impact of antitrust enforcement on the export or overseas distribution stage of United States domestic producers and then turns to the effect …

Bibliography: The Extraterritorial Application Of United States Antitrust Laws: A Selective Bibliography, Howard A. Hood

Vanderbilt Journal of Transnational Law

Those who have commented on the Webb-Pomerene Act can be divided into two groups: (1) those who support the Act and would retain it or even expand its scope; and (2) those who oppose the Act and would repeal or weaken it. The first group believes that application of the antitrust laws to the foreign activities of United States companies impairs their ability to compete in the world market. The second group rejects this contention and considers the Webb-Pomerene Act to be unjustifiably inconsistent with the legal framework of free competition...

This bibliography presents selected citations to the literature of …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Books Received

CANADIAN CRIMINAL LAW: INTERNATIONAL AND TRANSNATIONAL ASPECTS

By Sharon A. Williams and J. G. Castel

Toronto: Butterworth's, 1981. Pp. 513. $80.00.

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CASES AND MATERIALS ON SALE OF GOODS

By John Adams

London & Canberra: Croom Helm: Ltd., 1982. Pp. 174. $15.50.

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THE DEFENSE POLICIES OF NATIONS: A COMPARATIVE STUDY

Edited by Douglas J. Murray and Paul R. Viotti

Baltimore and London: The Johns Hopkins University Press, 1982. Pp. 525. $35.00 (cloth), $12.95 (paper)

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DOCUMENTS ON THE LAWS OF WAR

Edited by Adam Roberts and Richard Guelff

New York: the Clarendon Press; Oxford University Press, 1982. …

Draft International Anticounterfeiting Code: Neo-Realism As A Vehicle For Analyzing The Effect Of Nonsignatories' Perceptions On The Development Of An Anticounterfeiting Norm, Shari D. Olenick

Vanderbilt Journal of Transnational Law

NOTE -

The United States, the European Common Market (EEC), Canada, and Japan are currently considering a draft convention entitled "Agreement on Measures to Discourage the Importation of Counterfeit Goods' (hereinafter referred to as the Anticounterfeiting Code or Code) which is designed to minimize the international problem posed by counterfeit merchandise. This Note highlights the international legal significance of the counterfeiting problem. Previous attempts to confront the problem provide the backdrop for a tripartite analysis which treats the following issues in the proposed Code: workability questions evident from an initial examination of the Code; the Code as a norm-creating vehicle; …

The Export Trade Exception To The Antitrust Laws: The Old Webb-Pomerene Act And The New Export Trading Company Act, Wilbur L. Fugate

Vanderbilt Journal of Transnational Law

This Article discusses the history of the Webb Act as a prelude to a discussion of the new legislation. Because the standards in the new Export Act are similar to those in the Webb Act, the precedents under the Webb Act will remain important for interpreting the new legislation. Furthermore, a review of the Webb Act and of the alternatives proposed over the years gives an insight into the reasoning behind having an export exception to the antitrust laws... This Article will examine the Webb Act and its operation; the courts' treatment of the Webb Act; the manifold suggestions and …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

ADMIRALTY JURISDICTION EXISTS IN CASES STEMMING FROM BOAT COLLISIONS ON NAVIGABLE WATERS REGARDLESS OF THE COMMERCIAL OR NONCOMMERCIAL NATURE OF THE VESSELS INVOLVED--Foremost Insurance Co. v. Richardson, 102 S. Ct. 2654 (1982).

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SHIPOWNER MAY ATTACH CHARACTER'S PROPERTY AS SECURITY FOR BREACH OF A CHARTER CONTAINING A FORUM SELECTION CLAUSE--Polar Shipping, Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1982).

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WORKER EMPLOYED ABOARD AN OFFSHORE DRILLING PLATFORM MAY BRING A CLAIM UNDER MARITIME TORT LAW FOR WRONGFUL DISCHARGE--Roberie v. Gulf Oil Corp., No. 820013 (W.D. La.Aug. 4, 1982)

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THE IMMIGRATION AND NATURALIZATION ACT DOES NOT APPLY …

Recent Development, Platte B. Moring, Iii

Vanderbilt Journal of Transnational Law

While few commentators question the international status of the Community in relation to the Member States and those countries with which it has negotiated treaties, the question of whether the Common Market possesses a universally recognizable personality remains open. In determining the international status of the United Nations, the ICJ in the Reparations Case stated that fifty states, "representing the vast majority of the members of the international community, had the power in conformity with international law to bring into being an entity possessing an objective international personality and not only personality recognized by them alone. If this recognition standard …

Judicial Jurisdiction: From A Contacts To An Interest Analysis, Luther L. Mcdougal L. Mcdougal Iii

Vanderbilt Law Review

This Article examines whether the courts should shift their focus to a policy or interest analysis in judicial jurisdiction cases. The Article initially identifies some of the theoretical inadequacies of, and practical difficulties with, the Supreme Court's purposefully availing/minimum contacts approach to jurisdictional problems. The Article then outlines an alternative approach that employs a comprehensive form of interest analysis. After setting forth this proposed framework, the Article proceeds to examine Supreme Court decisions since International Shoe from the standpoint of the outcomes that an interest analysis approach might produce. Finally, the Article appraises these varying results and recommends that the …

Judicial Analysis Of Predation: The Emerging Trends, James D. Hurwitz, William E. Kovacic

Vanderbilt Law Review

This Article examines the recent judicial experience in this endeavor. The purposes of the Article are twofold.The first is to describe the current state of the law regarding predation and to discern significant trends that may be developing. The second purpose is to explore the considerations that courts must weigh in evaluating the legal utility of proposed rules that may be valid as a matter of economic theory. Toward these ends,part II of the Article examines the economic and legal context in which litigants present predation claims. Specifically, this part re-views some of the academic debates that have so greatly …