Law Commons^™

Nonmutual Collateral Estoppel In Federal Tax Litigation, Samuel E. Long, Jr.

Vanderbilt Law Review

First, the Note briefly traces the demise of the mutuality rule in nontax cases. Second, the Note discusses the cases examining the rule in tax disputes and argues that courts should not require mutuality as an absolute rule before collateral estoppel can apply.Finally, the Note proposes a framework within which courts should analyze nonmutual estoppel claims in federal tax cases...

This Note has argued that the Supreme Court's decision in Parklane Hosiery and the Ninth Circuit's decision in Starker v. United States have sounded the death knell for the mutuality rule in its final stronghold-federal tax litigation. Courts can apply …

Open Space Taxation And State Constitutions, David A. Myers

Vanderbilt Law Review

this Article will first examine the theoretical function and form of state constitutions. This analysis can in turn be used to develop criteria for evaluating the content of these open space amendments. These criteria can then be used to suggest alternative methods of constitutional change that will allow state governments to respond most effectively to contemporary problems in the taxation of real property.

... This Article has been concerned with the various justifications for putting open space taxation provisions in state constitutions. It should be noted, however, that these amendments can have important negative effects on state constitutional law. Because …

Doing Good The Wrong Way: The Case For Delimiting Presidential Power Under Executive Order No. 11,246, Andrie K. Blumstein

Vanderbilt Law Review

The Note has demonstrated that the concept of affirmative action as embodied in the Executive Order Program induces race-conscious employment programs by federal contractors in contrast to the norm of race-neutral decision making imposed by the Civil Rights Act of 1964. The Note has also argued that a nexus analysis must define the parameters of executive authority to promulgate the Executive Order Program. In other words, there must be a close relationship between the alleged source of executive authority and the President's actual exercise of that authority...

This Note attempts to refine the Presidential power analysis of Youngstown Steel and …

Conflicting Standards For Applying The Corporate Attorney-Client Privilege, Kay E. Stephenson

Vanderbilt Law Review

The attorney-client privilege protects confidential communications between client and attorney from forced disclosure.' Dating back to at least 1577, the privilege arose from the belief that it was a point of honor for the attorney to keep his client's confidences.'The modern rationale for the privilege, however, is the perceived need to encourage full and frank discussion between attorney and client by removing the fear of forced disclosure.' Thus, the privilege rests on the premise that the social benefits derived from uninhibited communication and from the attorney's access to all the facts outweigh the detrimental effects of concealing information during trial.' …

Book Reviews, Lawrence M. Friedman, Allaire U. Karzon

Vanderbilt Law Review

The Politics of Justice: Lower Federal Judicial Selection and the Second Party System - Book Author: Kermit L. Hall; Book Reviewed by Lawrence M. Friedman

In The Politics of Justice, Kermit L. Hall, a history professor at Wayne State University, takes a look at the way Presidents from Jackson through Buchanan picked judges for the federal district courts and for the territories. There were 240 such appointments during the period studied...

There is something of a literature on the selection process,"although Hall's book does fill a rather glaring hole. The tale Hall tells rings true if we ignore a few …

Contribution Among Antitrust Defendants, Jane G. Parks

Vanderbilt Law Review

This Recent Development argues that no single federal common law rule of contribution exists and that federal securities law decisions provide the best analogy from which to imply a right of contribution under the antitrust laws. Thus, the Recent Development proposes that the Supreme Court should fashion a rule permitting contribution among antitrust defendants.

Legislative Clarification Of The Correlative Rights Of Surface And Mineral Owners, J. Stephen Dycus

Vanderbilt Law Review

This Article examines the development of the judge-made doctrine of the dominant mineral owner, then considers the various legislative efforts to restrict or clarify the application of that doctrine. With this background it then proposes a new, more comprehensive statutory solution, which requires a clear expression of understanding about the effect of any mining activity upon the surface of the land. Constitutional implications of the different statutory schemes are identified and briefly discussed at the end of the Article.

The Uniform Product Liability Act--A Brief Overview, Victor E. Schwartz

Vanderbilt Law Review

There are many important aspects of the Uniform Act that have not been discussed herein including provisions on assumption of risk, punitive damages," and contribution among joint tort feasors. Nevertheless, the examples that have been given show that it is a law that attempts to balance the interests of product users and sellers. It is the Department's hope that state legislatures will give it serious consideration and that it will help bring about uniformity in the key areas of product liability law. As long as courts can retroactively create new and unprecedented product liability law, the specter of future product …

Defining The Parent's Duty After Rejection Of Parent-Child Immunity: Parental Liability For Emotional Injury To Abandoned Children, Reid H. Hamilton

Vanderbilt Law Review

Child neglect and abandonment are serious problems in the United States. The number of children in foster care in the United States has risen from a third of a million in 1971 to over 750,000 in 1979. A significant number of these children have been abandoned voluntarily and permanently by their parents. Abandoned children suffer marked psychological consequences; even after receiving the best available foster care, such children suffer adverse emotional effects throughout their adult lives.' Due to the traditional American rule granting parents immunity from personal injury suits by their minor children, abandoned children generally have been uncompensated for …

Defining The Government's Duty Under The Federal Tort Claims Act, Thomas A. Varlan

Vanderbilt Law Review

This Recent Development traces the Supreme Court's development of the analogous private liability test and examines the recent cases applying this test. The Recent Development then analyzes the divergent approaches taken in these cases and attempts to determine when an actionable duty arises under the Act.

Rethinking The Policies Of Strict Products Liability, David G. Owen

Vanderbilt Law Review

In the evolution of products liability law, therefore,should be the time for doing what usually comes late in the common-law process: to develop a system of fundamental social values and goals to be protected and advanced by the law in this area. Broadly stated, an appropriate balance between individual liberty and social welfare needs to be struck within a fair and workable adjudicatory system. Once a jurisprudential basis of this type has been set, we may then begin to develop a consistent set of principles tailored to this area of the law. It will then be possible to construct one …

Products Liability And Safety, Cases And Materials / Law, Intellect, And Education, Richard E. Speidel, Gene R. Shreve

Vanderbilt Law Review

Reviewed by Richard E. Speidel

In this brief review, I have attempted to determine whether this casebook makes the case for installing products liability and safety as an integral part of the law school curriculum. Admittedly, defective products pose an important social and legal problem with which lawyers are deeply involved. The question is, however, whether the casebook is, within the broader framework of contemporary legal education, both professionally relevant and educationally sound to a sufficient degree.

Reviewed by Gene R. Shreve.

This small book by a former dean of the University of Michigan Law School is the most confident …

American Trends In Private International Law: Academic And Judicial Manipulation Of Choice Of Law Rules In Tort Cases, Willis L.M. Reese

Vanderbilt Law Review

The Restatement attempts to provide as much guidance as it is believed the current state of the authorities will permit. Hard-and-fast rules of choice of law are stated in the few situations in which this was deemed possible . Elsewhere formulations of varying degrees of specificity are employed." Nevertheless, it cannot be denied that the principal weakness of the Restatement is the relatively little guidance that it affords. Properly viewed, it is a transitional document. It was written during a time of change and chaos when there was little indication of the direction that would betaken by future developments in …

The Role Of Mental Health Professionals In The Criminal Process: The Case For Informed Speculation, Christopher Slobogin, Richard J. Bonnie

Vanderbilt Law School Faculty Publications

In this article we have attempted to make the case for continued participation by appropriately qualified mental health professionals in the adjudication of reconstructive subjective issues of the criminal law. In Part I, we outlined the reasons why imprecision and speculation is and must be tolerated in doctrines of exculpation and mitigation. In Part II, we developed the case for evidentiary rules which permit "informed speculation" by qualified clinical experts so as to enable defendants to explore and present subjective defenses and assist triers of fact to assess the plausibility and significance of such claims. We recognize that many mental …

On Product "Design Defects" And Their Actionability, John W. Wade

Vanderbilt Law Review

This Article has tried to explain and discuss these developments, to evaluate them, to show their relationship to the general state of the law, and to make suggestions on how far they should affect its future development. At present, the question of "design defects" and the determination of when a product is actionable because of the nature of its design appears to be the most agitated and controversial question before the courts in the field of products liability. I hope that this Article can be of some help to the courts in seeking to develop the most suitable answer to …

Liability For Proceeding With Unfounded Litigation, John R. Jones, Jr.

Vanderbilt Law Review

The important issues for this Note are the meaning of "good ground" and the nature of the sanctions available in a given case.One can conceive of many ways in which a pleading could lack good ground. At one extreme, -the attorney might know that the facts alleged were untrue."' Alternatively, the facts alleged, though not positively known to be untrue, might be based solely on speculation--as when the plaintiff, unsure who assaulted him, picked a name from the telephone directory on a hunch and sued that person." Between these egregious cases and the case in which the allegations have good …

Reconsidering Plaintiff's Fault In Product Liability Litigation: The Proposed Conscious Design Choice Exception, Vincent S. Walkowiak

Vanderbilt Law Review

The Uniform Comparative Fault Act, drafted by the National Conference of Commissioners on Uniform State Laws, was approved by the Commissioners in 1977. Dean John W. Wade was Chairman of the special committee that drafted the Act. The Act is a comparative-fault, rather than a comparative-negligence, act; it applies to all nonintentional torts, including products liability actions, whether they are based on negligence, breach of warranty,or strict tort liability. The Act seeks to address the problem of the relationship between the doctrines of comparative negligence and strict liability for products by permitting plaintiff's fault to effect a proportional reduction in …

Unmasking The Test For Design Defect: From Negligence [To Warranty] To Strict Liability To Negligence, Sheila L. Birnbaum

Vanderbilt Law Review

This Article will consider the problems engendered by imprecise judicial analysis of the notion of design defect. The central issues informing this investigation are as follows: (1) Can the notion of manufacturer fault or negligence be rationally eliminated in a design defect case? and (2) Should the term "unreasonably dangerous" be retained in the definition of defect in a design case, and if so, how should it be defined?

The Racketeer Influenced And Corrupt Organizations Act: An Analysis Of The Confusion In Its Application And A Proposal For Reform, Whitney L. Schmidt

Vanderbilt Law Review

This Note will first discuss the technical elements of a RICO violation and set forth the four separate crimes that constitute the statute's central provisions. After then examining RICO's crucial statutory definitions and the confusion reflected in their application, this Note will evaluate the various judicial interpretations of the statute and propose a solution for amending the statute that is harmonious with legislative intent and accommodates the needs of both society and the individual.

Let Them Be Judged: The Judicial Integration Of The Deep South / Federal Taxation Of Trusts, Grantors And Beneficiaries/, Steven F. Lawson, John H. Martin

Vanderbilt Law Review

Let Them be Judged: The Judicial Integration of the Deep South Frank T. Read and Lucy S. McGough

The manner in which federal judges in the South both retarded and promoted first-class citizenship rights for Black Americans is the topic of Frank Read's and Lucy McGough's 1978 work Let Them Be Judged: The Judicial Integration of the Deep South. The authors, law professors at the University of Tulsa and Emory University respectively, review in great detail the operation of the United States Court of Appeals for the Fifth Circuit in adjudicating the rapidly increasing volume of civil rights litigation after …

A Simplified Approach To Tying Arrangements: A Legal And Economic Analysis, Joseph P. Bauer

Vanderbilt Law Review

This Article will first examine the legal and economic theories applicable to tying arrangements. The Article will then examine the present confused state of the law, and will conclude by proposing a simplified test for evaluating future conduct. The Supreme Court has stated that "tying arrangements serve hardly any purpose beyond the suppression of competition."' If this is true, there is no logical justification for the two separate steps of the analysis, distinguishing the "existence" and "liability" issues; therefore, it is proposed that they be combined. In determining whether there is a tie,it may be relevant to determine whether the …

State Motor Vehicle Franchise Legislation: A Survey And Due Process Challenge To Board Composition, Gary M. Brown

Vanderbilt Law Review

This Note briefly traces the rise of the franchise as the primary automobile distribution device, the problems that confronted early dealers, and their subsequent inability to secure judicial relief. After examining dealers' efforts in the legislatures and the resulting statutes this Note points out several infirmities that exist regarding state automobile franchise regulation. The Note then focuses upon a particular constitutional challenge to state automobile franchise legislation. Finally, the Note concludes that such legislation is either genuinely ineffective or leads to the anomalous result that dealers assume more powerful positions with respect to their manufacturers through unconstitutional means. Based upon …

A Door In The Illinois Brick Wall - A Functional Equivalent To The Cost-Plus Contract Exception, David K. Herzog

Vanderbilt Law Review

In Mid-West Paper Products Co. v. Continental Group, Inc., I" the Third Circuit took the position that it would "not extend the exception beyond the limited circumstances recognized by the Supreme Court."" Accordingly, the court held that the use of passing-on theory is impermissible unless its proponent can show preexisting, fixed-quantity, cost-plus contracts at every level of the distribution chain, with the result that he absorbed the illegal overcharge in its entirety. In In re Beef Industry Antitrust Litigation, however, the Fifth Circuit declared that if the exception is confined to "cases involving literal cost-plus contracts," then it "is a …

Judicial Restrictions On Attorneys' Speech Concerning Pending Litigation: Reconciling The Rights To Fair Trial And Freedom Of Speech, Sally R. Weaver

Vanderbilt Law Review

The constitutionality of restraints on attorneys' speech has been considered by only two federal circuit courts: the Seventh Circuit, in Chicago Council of Lawyers v. Bauer,' and, more recently, the Fourth Circuit, in Hirschkop v. Snead.' Relying on many of the same precedents, the circuits nevertheless developed seemingly contrary standards. This Recent Development compares the analyses of these recent cases and suggests an appropriate standard for the accommodation of the conflicting rights of free speech and a fair trial.

Recent Publications, Unidentified Author

Vanderbilt Law Review

Beating a Rap? Defendants Found Incompetent to Stand Trial

In this book, Henry Steadman, Director of the Special Projects Research Unit of the New York State Department of Mental Hygiene, addresses the common suspicion that defense attorneys enable their clients to escape criminal charges by having the clients declared incompetent to stand trial. Such suspicion, he argues, results both from public confusion over the legal and psychiatric issues in a competency hearing and from a lack of understanding (even among experts) about the practical results that flow from a determination of incompetency.

Law and Order in American History Edited by …

Limited Partners' Derivative Suits Under The Revised Uniform Limited Partnership Act, Edwin W. Hecker, Jr.

Vanderbilt Law Review

The purpose of this Article is to examine the provisions of the 1976 Act that authorize limited partners' derivative suits. This examination necessarily must begin by tracing the development of derivative suits under the 1916 Act. With this background established the Article will proceed to analyze the relevant provisions of the 1976 Act.

Free Navigation: Examination Of Recent Actions Of The United States Coast Guard, Edward H. Lueckenhoff

Vanderbilt Journal of Transnational Law

The use of aircraft and large, seagoing vessels for smuggling marijuana and other illicit drugs has created a burgeoning problem for United States efforts to control its borders. The use of foreign flag ships as "mother ships" is particularly troublesome. This practice involves foreign flag vessels, often containing several tons of marijuana, that hover in international waters just outside the United States territorial sea. The marijuana is transferred from these mother ships to smaller vessels which then cross into United States waters and distribute the contraband at prearranged points along the coast. The immunities provided by international law for foreign …

The Extraterritorial Application Of Nepa Under Executive Order 12,114, Sue D. Sheridan

Vanderbilt Journal of Transnational Law

On January 5, 1977, President Carter issued Executive Order No. 12,1142 (Executive Order) describing the scope of United States federal agencies' obligations to consider the environmental consequences of proposed agency actions abroad. In so doing, Carter purported to establish the sole legal authority governing agency response to the concern for the global environment. Moreover, the Executive Order was intended to resolve a heated debate over the extraterritorial applicability of the National Environmental Policy Act [NEPA] which had concerned federal agencies, courts, Congress, and the Executive Branch during three successive administrations.

The controversy focused on whether NEPA's requirement that an environmental …

Recent Decisions, James M. Redwine

Vanderbilt Journal of Transnational Law

The instant decision should serve to stimulate discussion on both the theoretical justifications for and the practical implications of jury trials in actions against governmental defendants, and therefore, may lead to revision of the FSIA. From a theoretical perspective, although the instant court correctly noted the changes effected by the Act, it failed to perceive the full extent of Congress' power in the domestic context. Congress, by its ability to classify entities as "agencies" or "instrumentalities" of the United States, thereby exempting specific entities from the non-jury trial provisions of FTCA, has the power, in effect, to restrict the scope …

Follow-Up At Madrid: Another Chance For The United States, Harold S. Russell

Vanderbilt Journal of Transnational Law

One of the unusual characteristics of the Final Act of the Conference on Security and Cooperation in Europe (CSCE) was its provision for "follow-up" meetings to assess implementation of the negotiated commitments and consider adoption of new measures. The first review meeting convened in Belgrade in October 1977. The second such follow-up session is to convene this November in Madrid. In the hope of strengthening this unique mechanism, an analysis of the CSCE process, an evaluation of the previous follow-up session at Belgrade, and a suggested approach to the Madrid talks are presented in this paper.

Numerous writers have now …