Law Commons^™

Discharge Of Supervisors For Union-Related Activity: An Examination Of "Pattern Of Conduct" Analysis, Michael L. Dagley

Vanderbilt Law Review

Recent Board decisions such as Brothers Three Cabinets suggest that the Board has frequently contravened congressional intent by extending the protection of the Act to cover supervisors. This Note begins with an examination of the legislative history of the Taft-Hartley Amendments, focusing upon the congressional intent behind the exclusion of supervisory personnel from the protection normally afforded employees under the Act. The Note then traces the historical development of supervisory discharge law and analyzes the development of the "pattern of conduct" standard. Finally, the Note investigates the inherent analytical problems with the "pattern of conduct" standard, examines the inconsistent application …

Prosecutorial Vindictiveness: An Examination Of Divergent Lower Court Standards And A Proposed Framework For Analysis, John J. Cross, Iii

Vanderbilt Law Review

The judicial response to the problems posed by the conduct of a prosecutor who brings increased charges against a criminal defendant for exercising his legal rights has not been adequate.Lower federal courts have adopted divergent standards, focusing on whether there exists an appearance of prosecutorial vindictiveness, a realistic likelihood of prosecutorial vindictiveness, or actual prosecutorial vindictiveness. By couching their analyses in terms of the prosecutor's motivations, these courts have ignored the overriding principle of substantive due process, which holds that fundamental constitutional rights should be afforded greater due process protection than nonfundamental rights. This Recent Development submits that courts must …

Congress, The Courts, And Sex-Based Employment Discrimination In Higher Education: A Tale Of Two Titles, Joel W. Friedman

Vanderbilt Law Review

This Article will examine the manner in which the federal courts have handled sex-based employment discrimination claims against colleges and universities. Specifically, the Article will suggest that most such judicial opinions have construed and applied the applicable federal laws in a manner inconsistent with Congress' articulated desire to promote equal employment opportunity in, and to remove the taint of sex-biased decisionmaking from, the academic profession. In light of this judicial misconstruction of the remedial statutes, the Article proposes a different framework for analyzing Title VII and Title IX claims that will more adequately promote Congress' twin objectives.

Corporate Distributions And The Income Tax: A Consideration Of The Inconsistency Between Subchapter C And Its Underlying Policy, Charles R. O'Kelley Jr.

Vanderbilt Law Review

This Article suggests that although one part of a corporate distribution may be analogous to a sale and the remainder to a dividend, there is no overlap of, or competition between, analogies.This lack of overlap is apparent when one realizes that a dividend and a sale are methods of realizing different types of gain, rather than alternative methods of realizing the same type of gain. This Article examines the basic conceptual model underlying the present system of taxing corporate distributions, describes the appropriate treatment of corporate distributions that is suggested by an understanding of the underlying concepts, and indicates the …

Use Of Juror Depositions To Bar Collateral Estoppel: A Necessary Safeguard Or Dangerous Precedent?, Ina R. Bigham

Vanderbilt Law Review

This Note initially discusses the doctrine of collateral estoppel and its policy justifications. Next, it describes the mutuality requirement for the use of collateral estoppel, tracing the abandonment of the mutuality rule by an increasing number of courts and presenting the policy arguments for and against such abandonment. Then the Note turns to the three corollaries of the collateral estoppel theory and explores the different methods that parties may use to establish each one. The Note also discusses the possibility that those methods may conflict with the basic policy of preserving the privacy and inviolability of the jury system. Finally,the …

United States Policy Toward The Transfer Of Proprietary Technology: Licenses, Taxes, And Finance, Gary C. Hufbauer, George N. Carlson

Vanderbilt Journal of Transnational Law

Much of the nation's technology is developed in public institutions, especially universities and government research laboratories, and is freely available through libraries and classrooms. Roughly one-half of total United States research and development expenditures are funded by the United States Government, and the findings from this research are generally available to citizens and foreigners at little or no charge. In addition, a great deal of technology that was once guarded by patents or trade secrets has since passed into the public domain. This paper ignores these freely available segments of the national technology base and discusses proprietary technology.

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Act of State Doctrine does not Preclude Inquiry by United States Court into Alleged Repudiation by a Foreign Government of its Obligation Arising from a Purely Commercial Transaction

Admiralty Jurisdiction Extends inland to Automobile Accident Caused by the Negligence of Ship's Crew

Outer Continental Shelf Lands Act Incorporates the Long-Shoremen's and Harbor Worker's Compensation Act, and includes Provisions Depriving Claims by Outer Continental Shelf Employees Injured on the Job against Vessel Ownerbased upon Breach of Warranty of Seaworthiness

University's Restrictive Definition of Domicile, which Precludes Nonimmigrant Aliens from Attaining "In-State" Status for Tuition Purposes, Does not Violate Due Process

Order …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Books Received

Direct Investment and Development in the U.S.: A Guide to Incentive Programs, Laws and Distinctions

Raymond J. Waldmann

Washington, D.C.: Transnational Investments, LTD., 1980. Map, Tables and Glossary. Pp. 443.

-------------------------------

Taxing Unfair International Trade Practices

Greyson Byran

Lexington, Mass: Lexington Books, 1980. Pp. 360. $34.95.

-------------------------------------

The Constitutions of the Communist World

Edited by William B. Sinons

Netherlands: Sijthoff & Noordhoff, 1980. Pp. 662.

-------------------------------------

The Circular

Part I by Eric J. Herpin and Part II by Charles A.Dilley

Brussels: Emile Bruylant, 1979. Pp. 216.

----------------------------------------

International Corporate Taxation

Philip P. Postlewaite

Colorado Springs, Colorado: Shepard's/McGraw-Hill Book …

Recent Development: Amenability Of Foreign Corporations To United States Employment Discrimination Laws, Kevin C. Tyra

Vanderbilt Journal of Transnational Law

As the Linskey court noted, the existence of employment exemption provisions in over thirty commercial treaties, if liberally construed, would create a loophole in Title VII enforcement. Given the ever-increasing number of United States employees of foreign-owned corporations, liberal treaty constructions could decrease the scope of Title VII.

Nevertheless, the effect on international commerce must be considered. Although equal employment opportunity is a laudable goal, this goal may conflict with the values of other cultures, as it did with the culturally-based organization and management philosophy of the C. Itoh Co. A more prudent approach to the problem of subsidiaries might …

Antitrust And International Know-How, Joel Davidow

Vanderbilt Journal of Transnational Law

It has been rumored that some political strategists would like to channel negotiations between developed countries of the North and developing countries of the South toward a trade-off allowing unrestricted access to Northern technology in exchange for decartelized supplies and prices for Southern raw materials. Each side would give away some of its heritage in exchange for improved access to the primary asset of the other. The negotiation shave faltered. In regard to many crucial issues they have never really begun, and in some respects the two sides have moved further apart over time. The classical economist sees no reason …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Carrier Who Employs Stevedore under a Long-Term Contract is Vicariously Liable to Cargo Owner for Stevedore's Mishandling of Cargo even after Unloading and Storage

Vessel Owner Denied Duty Remission because of Procedural Failure in Filings with Customs Service

Wife of Harbor Worker Injured Nonfatally in State Territorial Waters May Maintain Action for Loss of Husband's Society

Corporation may Qualify for Tax Treatment as a Western Hemisphere Trade Corporation even though Incidental Purchases are Made Outside the Hemisphere

Importation or Receipt of Goods from the United States Confirmed by Telex to Plaintiff in United States Insufficient Contacts to Establish Personal Jurisdiction …

United States Regulations And Acquisitions, Robert J. Radway

Vanderbilt Journal of Transnational Law

Will protectionist sentiment in the United States result in the imposition of barriers ultimately impeding the flow of this foreign technology, or will the realities of reciprocity soften the restrictive legislation in some of the developing countries which are increasingly becoming technology exporters? It is clear that the international economic system becomes increasingly interdependent each year. What is ever more apparent is that trade flows, international capital movements, and the transnational transfer of technology are inextricably interrelated with other issues involved in the Global Dialogue, such as the role of energy in development, (including petroleum and alternate sources), the stabilization …

Unctad's Draft Code Of Conduct On The Transfer Of Technology: A Critique, James W. Skelton, Jr.

Vanderbilt Journal of Transnational Law

UNCTAD's fourteenth plenary meeting on May 6, 1980, produced the latest of several attempts to draft such a code. The document is entitled "Draft International Code of Conduct on the Transfer of Technology" (Draft Code), and this draft will be the primary subject of analysis in this article. The drafters of the code face a number of problems, the least of which is the ultimate determination of the code's legal character and, consequently, its legal effect. This determination and other problem areas confronting the drafters, including the code's special preferences for developing countries, the core chapter on restrictive practices, and …

The Transfer Of Technology To Latin America, Gabriel M. Wilner

Vanderbilt Journal of Transnational Law

This paper focuses on the contractual acquisition of foreign technology through licenses and other contractual arrangements as contrasted with the technological components in the usual direct investment. Such investment is made either in the form of the wholly-owned subsidiary of the transnational corporation or as part of a joint venture. The use of technology as a major component of direct investment has been discouraged over the years, although this trend was reversed in Chile after 1977.

Modern legislation and practice in the regulation of technology transfer is characterized in the several Latin American countries possessing such a regime by administrative …

Comparative Analysis Of Systems Of Domestic Taxation Of Controlled Foreign Corporations, Jamie S. Martin, A. Dale Wilson

Vanderbilt Journal of Transnational Law

This Note outlines the existing law and practice of the domestic taxation of CFC's in the United States, United Kingdom, France, West Germany, and Japan, each of which exhibits a high level of economic and industrial advancement. United States developments are important because the statutory provisions of Subpart F have been adopted, with modifications, by other nations, including West Germany and Japan. The United Kingdom and France, on the other hand, have not yet adopted an integrated statutory scheme providing for domestic taxation of CFC's. These countries attack tax evasion schemes utilizing foreign controlled companies primarily through general laws, exchange …

Unauthorized Duplication Of Sound Recordings: Transnational Problem In Search Of A Solution, Vassilios C. Gatzimos

Vanderbilt Journal of Transnational Law

Recent estimates place the global recording industry's losses to pirates, counterfeiters, and bootleggers at $1.5 billion annually, and losses due to home taping at over $2 billion annually. Even in a thriving industry, these losses are staggering. The purpose of this Note is to survey the scope of the problem of unauthorized duplication of sound recordings and to examine international and national efforts by governments and the recording industry to eradicate this problem.

Welfare, Due Process, And "Brutal Need": The Requirement Of A Prior Hearing In State-Wide Benefit Reductions, Stephen A. Owens

Vanderbilt Law Review

This Note examines the right of welfare recipients to request a prior hearing in the context of state-wide, across-the-board benefit reductions by a state. After reviewing the due process requirement of a pretermination hearing articulated by the Supreme Court in Goldberg v. Kelly, the Note examines the standard for reductions established by the HHS regulations. The Note also considers the various approaches taken by the courts in attempting to determine the constitutional and statutory requirements of a prior hearing in a state-wide reduction. The Note argues that the standard delineated by the HHS regulations and by some courts fails to …

Osha After Ten Years: A Review And Some Proposed Reforms, Mark A. Rothstein

Vanderbilt Law Review

This Article reviews the first ten years of rulemaking, enforcement, and adjudication under the Act. The Article identifies various problem areas that have developed in these activities and for each area discusses whether past and present efforts to meet the problems have been adequate. In light of the Act's troubled history, the Article suggests several amendments to the Act, as well as administrative reforms, to facilitate the Act's implementation. The Article does not, however, attempt to address all of the myriad legal and policy issues or all of the Act's provisions that would benefit from congressional redrafting. Instead, the Article …

Limiting The Application Of The Exclusionary Rule: The Good Faith Exception, Meredith B. Brinegar

Vanderbilt Law Review

The Supreme Court does not believe that the deterrent value of the exclusionary rule is sufficiently well established to merit broadening the rule's scope. The Court nonetheless has not yet carved out a blanket exception to the rule based solely on a lack of deterrent value. The Fifth Circuit decided in Williams that the exclusionary rule is not an effective deterrent in the good faith mistake or technical violations cases. It therefore removed these fourth amendment violations from exclusionary rule doctrine. Although the Fifth Circuit correctly reasoned that the Supreme Court would support the exception in the case of police …

The Technology Transfer Process: A Vehicle For Continuity And Change, Robert Goldscheider

Vanderbilt Journal of Transnational Law

The technology transfer or licensing process is a discipline which, if properly appreciated, can be utilized in a wide variety of circumstances. There is a strong parallel with another discipline, music--more particularly, with the playing of a large and complicated church organ.

A man named Johann Sebastian Bach could sit in a drafty church in Leipzig over 200 years ago and create a phenomenon that had an original, and to the ears of most listeners, very wonderful sound. By utilizing the universally recognized notations of music, the staff, clefs, notes of varying duration, sharps, flats, keys, and indications of loudness …

Capacity To Contest A Search And Seizure: The Passing Of Old Rules And Some Suggestions For New Ones, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Professor Slobogin examines recent Supreme Court decisions involving standing to challenge search and seizure violations, and argues that the Court's commitment to a "totality of the circumstances" approach has permitted erosion of fourth amendment protections. After concluding that these decisions provide little guidance to lower courts, Professor Slobogin offers a set of principles which will aid in analyzing the Court's direction.

Democracy And Distrust: A Theory Of Judicial Review, Michael Conant

Vanderbilt Law Review

This review is a critique of the major themes in Democracy and Distrust: A Theory of Judicial Review,' by Professor John Hart Ely of Harvard Law School. Ely primarily addresses the amount of discretion exercised by Supreme Court justices in deciding constitutional cases, a fundamental issue since few scholars today would contest the actual existence of the judicial review power of the Court. Ely's thorough scholarship presents a fine discussion of the Court's legitimacy when it extends its discretion beyond the base of the actual constitutional language. Professor Ely misses the mark, however, in his argument that certain open-ended constitutional …

Recent Developments, Gali Hagel, John R. Heldman

Vanderbilt Journal of Transnational Law

RECENT DEVELOPMENTS

Aliens' Rights--The Refugee Act of 1980 as Response to the 1967 Protocol Relating to the Status of Refugees: The First Test

Gali Hagel

The Refugee Act of 1980, reflecting United States commitments under the 1951 Convention and the 1967 Protocol, went into effect during a wave of immigration that created a state of emergency in strongly affected southern Florida. Under a severe test of its commitment to the terms of the 1967 Protocol and its implicit sense of moral obligation to grant asylum to individuals fleeing dictatorial rule, the United States responded positively in accepting the Cubans. Although …

Ocean Thermal Energy Conversion: The Codification Of A Potential Technology, Maureen O`C. Walker, Murray A. Bloom

Vanderbilt Journal of Transnational Law

Rapid technological advancement has been the hallmark of post-industrial societies for more than a quarter of a century. This progress is forever disrupting our established legal systems. Nowhere is this tension more evident than in the discoveries of the developing energy industry. An exception to this process is the infant industry of ocean thermal energy conversion (OTEC). The United States Congress recently enacted legislation establishing the legal framework for the OTEC process, which has not yet been proven on a commercial scale.

OTEC is a form of solar energy that takes advantage of the vertical temperature differentials in those regions …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

THE MIDDLE EASTERN STATES AND THE LAW OF THE SEA

By Ali A.El-Hakim

Syracuse: Syracuse University Press, 1979. Pp. 293.Tables, maps, and international agreements.

-------------------------------------

COMPLIANCE AND PUBLIC AUTHORITY: A THEORY WITH INTERNATIONAL APPLICATIONS

By Oran R. Young

Baltimore: Resources for the Future, 1979. Pp. 161.

----------------------------

DOING BUSINESS WITH THE Russians

Under license from Westshore, Inc. New York: Praeger Publishers, 1978. Pp. 166.

---------------------------

TAX LAW AND POLICY IN THE E.E.C.

By Alexander James Easson

London: Oceana Publications, 1980. Pp. 269. Tables of treaty provisions, secondary legislation, cases, and statistics.

----------------------------------

THE COLLAPSE OF WELFARE REFORM: POLITICAL INSTITUTIONS, POLICY …

Book Reviews, Edward C. Brewer, Iii., W. Paul Gormley, Allaire U. Karzon.

Vanderbilt Journal of Transnational Law

DIRECT INVESTMENT AND DEVELOPMENT IN THE U.S.: A GUIDE TO INCENTIVE PROGRAMS, LAWS AND RESTRICTIONS 1980-1981

Raymond Waldmann

Washington D.C.: Transnational Investments, Ltd.; London: Kluwer Publishing, 1980. Pp. viii, 443. $75.00, London £45 plus £1 surface mail.

Reviewed by Edward C. Brewer, III.

-----------------------

NUCLEAR ENERGY AND NUCLEAR WEAPON PROLIFERATION

Frank Barnaby, Jozef Goldblat, Bhupendra Jasani, and Joseph Rotblat,eds. Published for the Stockholm International Peace Research Institute. London: Taylor & Francis, 1979. Pp. xxiv, 462.

Reviewed by W. Paul Gormley

--------------------------------------

INTERNATIONAL ASPECTS OF U.S. INCOME TAXATION Vois. I and III

Elisabeth Owens Boston, Mass.: Harvard Law School, 1980. Pp.305. …

Book Reviews, James B. Boskey, John Quigley

Vanderbilt Journal of Transnational Law

Social Policy Harmonization in the European Community

John Holloway

England: Gower Publishing Co./Renouf, 1980. Pp.318. $27.00.

Reviewed by James B. Boskey

==============================

Israel, the West Bank and International Law

Allan Gerson

Totowa, New Jersey, and London: Frank Cass & Co., 1978. Pp.285. $30.00

Reviewed by John Quigley

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Books Received

Israel and Palestine: Assault on the Law of Nations

By Julius Stone

Baltimore and London: The Johns Hopkins University Press, 1981. Pp. 223.

==================

An Introduction to Javanese Law

By M. C. Hoadley and M. B.Hooker

Tucson: The University of Arizona Press (The Association for Asian Studies), 1981. Pp. 292. $9.95.

====================

Transnational Enterprises in a New International System

By Klaus W. Grewlich

Alphen aan den Rijn, The Netherlands: Sijthoff & Noordhoff, 1980. Pp. 229.

======================

Treaties of the People's Republic of China, 1949-1978: Annotated Compilation

By Grant F. Rhode and Reid E. Whitlock

Boulder, Colorado: Westview Press, …

Acid Precipitation In North America: The Case For Transboundary Cooperation, Douglas M. Johnston, Peter Finkle

Vanderbilt Journal of Transnational Law

Long-range air pollution has emerged as a serious environmental problem in Europe and North America since the early 1950s. The most critical aspect of this problem is the movement over very long distances of airborne pollutants which eventually are deposited in harmful acid compounds. These pollutants originate in a multiplicity of stationary and mobile emission sources. Because the original pollutants undergo chemical changes during the atmospheric transport, the pollutants which ultimately cause damage are chemically different from the original emissions. Moreover, the pollutants, which are usually deposited in the form of rain or snow, cause harm only in special physical …

Recent Decisions, Kevin P. Hishta, J. Clifton Cox, Shari D. Olenick, Stephen B. Hatcher, Ann M. Bell

Vanderbilt Journal of Transnational Law

ALIENS--Executive Suspension of Alien's Deportable Status Final as Congressional Veto Mechanism violates Constitutional Doctrine of Separation of Powers

Kevin P. Hishta

--------------------------- Sovereign Immunity--Iranian Immunity from Pre-Judgment Attachments Terminated under International Emergency Economic Powers Act

J. Clifton Cox

---------------------------

Sovereign Immunity--Government Shipping Company of the People's Republic of China is an "Agency or Instrumentality" for the Purposes of the Foreign Sovereign Immunities Act of 1976

Shari D. Olenick

----------------------------

State Corporate Income Tax--Foreign Source Dividends Included in State Taxation Base Under Unitary Business Enterprise Test

Stephen B. Hatcher

-----------------------------

Trade Regulation--Use of Registered Mail by Federal Trade Commission to Subpoena …