Law Commons^™

Duty Of Directors With Respect To Potential Violations Of U.S. Law By Foreign Subsidiaries, Stephanie M. Phillips

Vanderbilt Journal of Transnational Law

This article considers whether the directors of a parent corporation breach their fiduciary duty to the shareholders and the corporation when they fail to obtain information concerning the business affairs and activities of a foreign subsidiary or to investigate fully the activities of a subsidiary, when those directors have information that the subsidiary may be violating United States law. These issues were originally raised in connection with alleged violations of the Rhodesian Sanctions Regulations and United States restrictions concerning sales to South Africa and Namibia by the wholly owned foreign subsidiaries of United States corporations. In response to allegations that …

The Harris V. Taylor Phoenix, Bradford A. Caffrey

Vanderbilt Journal of Transnational Law

One of the most remarkable aspects of Harris v. Taylor, a decision which has been described as "revolting to common sense" and, somewhat more diplomatically, as "unfortunate"' is the fact that it has taken sixty-four years for the question raised therein to come before the Court of Appeal again. In the intervening years, it has suffered, somewhat unjustly, critical attacks resulting from misapprehension as to what happened and what was decided in that case.

Harris v. Taylor is a classic example of a case properly decided but for the wrong reasons. The plaintiff, domiciled in the Isle of Man, brought …

The Troublesome Workings Of The Judgments Convention Of The European Economic Community, Errol P. Mendes

Vanderbilt Journal of Transnational Law

The problems involved in the jurisdiction by consent provisions in article seventeen and the special rules for insurance claims in articles seven through fifteen have to some extent been dealt with by the provisions of the Judgments Accession Convention as have the problems arising under the hire purchase and credit sale transactions. Nevertheless, a comprehensive definition of the term "consumer sale" is needed from the European Court.

There can be little doubt that both lawyers and litigants who are affected by the Convention, would prefer to operate under the conflict of laws rules of their own nations which, although complex, …

Book Review, Roy E. Thoman

Vanderbilt Journal of Transnational Law

Making use of historical accounts, and principles of international law and politics, Lee C. Buchheit examines one of the most intractable and perplexing problems of this era: self-determination, The author is a cum laude graduate of the University of Pennsylvania Law School, where he served as editor of the law review. The recipient of a fellowship to study public international law, Buchheit received a diploma in international law from Cambridge University in 1976. The focus of his book is on the implications for the world community of appeals to the principle of self-determination by secessionist elements within independent states. An …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Definition of Seaman under the Jones Act Need Not be Restricted to Person Assigned to Only One Vessel

Fourth Amendment Does Not Bar Warrantless Fishing Vessel Searches Authorized by the Fishery Conservation and Management Act of 1976 to Protect Fisheries in the Conservation Zone

Properly Extradited Fugitive Not Entitled to Judicial Hearing Challenging Enlargement of Original Warrant of Surrender

Visa Numbers Wrongfully Charged Against Western Hemisphere Quotas are Reissued According to an Historical Approach Rather than Chronological Order

Payment of Irrevocable Letter of Credit May Not be Enjoined on Grounds of Instability of Foreign Governments

Expropriation of a Contractual Right …

Books Received, C. C. S., C. A. P.

Vanderbilt Journal of Transnational Law

A Chronology and Fact Book of the United Nations 1941-1979

By Thomas Hovet, Jr. and Erica Hovet

Dobbs Ferry, New York: Ocean Publications, sixth edition, 1980. Pp. 304. $17.50.

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Copyright in International Relations: International Protection of Literary and Scientific Works

By Mark Moiseevich Boguslavsky

Sydney, Australia: Australian Copyright Council,1979. Pp. 224.

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Deep Sea Mining Edited

by Judith Koldow

Cambridge, Mass.:The MIT Press, 1980. $17.50.

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The Enclosure of Ocean Resources: Economics and the Law of the Sea

By R. D. Eckert

Stanford, California: The Hoover Institution, 1979. Pp. 408. $16.95.

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Federal Jurisdiction in Australia

By Zelman Cowen …

Introduction, William W. Bishop, Jr.

Vanderbilt Journal of Transnational Law

This issue of the Vanderbilt Journal of Transnational Law is a symposium devoted to human rights aspects of the Helsinki Final Act. The Conference on Security and Cooperation in Europe was convened in Helsinki July 3, 1973. After sessions there and in Geneva, all European states, both Western and Eastern (except Albania), took part, as did also the United States and Canada. On August 1, 1975, the Final Act of the Conference was signed at Helsinki by thirty-five nations. Its provisions had been laboriously arrived at by consensus rather than by voting. Early pressures for such a conference had come …

Conference On Security And Cooperation In Europe: Retrospect And Prospect, Matthew Nimetz

Vanderbilt Journal of Transnational Law

After five years of experience with the Helsinki Final Act, the thirty-five signatory countries are about to hold in Madrid a second follow-up conference to assess the record of implementation and consider what new steps might be taken to further the purposes of the Conference on Security and Cooperation in Europe, hereinafter CSCE. Now is a good time to take stock of where CSCE has been and where it is likely to go in the future.

The Helsinki process seeks to address the United States basic foreign policy dilemma: how can two competing and largely antagonistic systems co-exist in a …

The Humanitarian Provisions Of The Helsinki Accord: A Critique Of Their Significance, Valery Chalidze

Vanderbilt Journal of Transnational Law

It is no exaggeration to say that the humanitarian provisions of the Helsinki Accord have been recorded in the history of international relations by virtue of not so much their content as the strong public response they have elicited. This reaction is perhaps surprising, for the humanitarian provisions of the Helsinki Accord itself are very weak. If the convergence of East and West means loss by the West of its legal perspective on issues as fundamental as human rights, then I would not recommend such a convergence. Keeping in mind the development of such problems in the future, it would …

Human Rights Bibliography, Igor L. Kavass

Vanderbilt Journal of Transnational Law

It would be a mistake to assume that the concept of human rights as an ethical precept is an invention of recent origin. The shelves of libraries throughout the world are filled with books which either endeavor to define the inalienable rights of individuals or record the sad history of their constant and relentless abuse. Many of the world's greatest literary creations, from the Greek drama onward, chronicle man's cruelty to man. What is more effective in evoking a feeling of indignation about the perversity of human misery and suffering than the unforgettable books of writers with such culturally and …

Book Review, Ved P. Nanda

Vanderbilt Journal of Transnational Law

Human Rights and World Public Order

Myres S. McDougal, Harold D. Lasswell, and Lung-chu Chen

New Haven: Yale University Press, 1980. Pp. 116.

Reviewed by Ved P. Nanda

Human Rights And The Helsinki Conference On Security And Cooperation In Europe, Jacqueline P. Granier

Vanderbilt Journal of Transnational Law

Preparatory talks for the Conference on Security and Cooperation in Europe began in November 1972, in Helsinki, Finland. This final product of seven months of discussions, known as the Blue Book, served as the procedural manual for the Conference when it officially opened in July 1973. It contains recommendations on various aspects of the Conference including organization, agenda, participation, rules of procedure and financial arrangements.

The organizational section provides that the Conference be divided into three working sessions designated Stages I, II, and III. Stage I was a ministerial level meeting designed to open the Conference and allow for the …

Reciprocal Influence Of British And United States Law, Clark C. Siewert

Vanderbilt Journal of Transnational Law

The influence of British and United States courts on each other's statutory and decisional law has been primarily indirect. Although few fundamental differences exist between the legal principles, methods, and concepts of the two major common law jurisdictions, the courts in both countries have resisted the use of the other's case law. This is unfortunate because a United States or an English case might provide a fresh perspective for a domestic court that otherwise feels bound by a previous line of reasoning. Since cases from foreign jurisdictions are most relevant in dealing with a question of international or transnational law, …

A Comparison Of The Foreign Corrupt Practices Act And The Draft International Agreement On Illicit Payments, Margaret H. Young

Vanderbilt Journal of Transnational Law

Congress advocates the position that foreign bribery in a commercial context contributes to foreign relations problems, a perception of corporate immorality, and erosion of the free market system. By enacting the Foreign Corrupt Practices Act of 1977 (FCPA), the United States initiated a unilateral attack on the problem of commercial bribery abroad. Commentators frequently criticize the FCPA's unilateral approach, noting that it places United States companies at a competitive disadvantage overseas.

It is generally recognized that multilateral support is necessary before significant progress can be made in halting the prevalent practice of payments to foreign officials for business advantages. In …

Finance, Rules And The Indexation Of Brazilian Government Bonds, Mark J. Roe

Vanderbilt Journal of Transnational Law

In roughly a dozen years, Brazil has created a sophisticated multi-billion dollar system of public debt in the midst of an unpredictable inflationary financial climate. During this time the government bonds were initially all indexed against inflation; the obligations were automatically periodically adjusted in accordance with price index changes. However, as shall be seen, the indexation of the bonds was not necessarily the cause of the expansion of the market for public debt.

The legal-economic mechanism of Brazilian indexation is not widely understood in the United States. The method used to calculate the index that provides the basis for readjusting …

The Establishment Of Foreign Bank Agencies And Branches In New York, Clifford D. Harmon

Vanderbilt Journal of Transnational Law

In recent years foreign banking associations have played an increasingly important role in the United States money market. While foreign banks have been operating in the United States since the 1870's, no substantial foreign banking existed in this country until the early 1970's. Since that time, however, there has been rapid expansion, and by 1978 there were 210 foreign bank facilities controlling $66 billion in assets in the United States. Most of this activity is confined to New York, Illinois, and California.

New York alone accounts for three quarters of all foreign bank assets in this country. Although this concentration …

Agencies In Conflict: Overlapping Agencies And The Legitimacy Of The Administrative Process, Louis J. Sirico Jr.

Vanderbilt Law Review

This Article demonstrates how multi-agency decision making can enhance the legitimacy of the administrative system. After discussing the meaning of legitimacy in a highly stable society, it analyzes multi-agency decision making process from the perspective of the political scientist. I particularly emphasize "partisan mutual adjustment" analysis, which views the system as adjusting continually to the conduct of interacting participants. This theory comports not only with the pluralistic, pressure politics model of American government, but also with the methodology of classical economics, which celebrates the product of competing, conflicting interests.The Article concludes by demonstrating that the multi-agency process can increase legitimacy …

General Laws, Neutral Principles, And The Free Exercise Clause, G. Michael Mccrossin

Vanderbilt Law Review

This Note examines several recent Supreme Court decisions considering the first amendment's free exercise clause to determine whether, collectively, the decisions are results of principled decision making. During the past two decades the Court has had four significant opportunities to deal with the free exercise clause. In all but one, the Court made important statements about the constitutional protection afforded the free exercise of religious belief. In each case the basic issue was the same: was interference with the exercise of religion unconstitutional when that interference resulted from the application of a general law that promoted a valid public policy …

The Reclaiming Seller Under The Bankruptcy Reform Act: Resolution Or Renewal Of An Old Conflict?, Richard A. Mann, Michael J. Phillips

Vanderbilt Law Review

This Article will assess the impact of the Bankruptcy Reform Act upon the conflict of the Code cash and credit sellers with the trustee in bankruptcy. The article will begin by discussing the legal position of the reclaiming seller at common law, both because the new Act's interaction with the Code cannot be understood without reference to such doctrines, and because these doctrines are often likely to be of continued applicability under the new Act. It will then examine the seller's rights under the U.C.C., and will discuss his relations with certain bankruptcy-relevant Code third parties. Following this, the Article …

Recent Development: Foreign Sovereign Immunity, Jere Geiger Thompson

Vanderbilt Journal of Transnational Law

The Foreign Sovereign Immunities Act of 19761 (FSIA) grants an "agency or instrumentality" of a foreign state substantially the same immunities that are provided to the state itself under the Act. An agency or instrumentality of a foreign state is defined in section 1603(b) of the FSIA. Section 1603(b) lists the following three criteria that must be met by an entity in order to qualify as an agency or instrumentality for sovereign immunity purposes: (1) the entity must be a legally independent person3 under the laws of the foreign state in which it was created; (2) the entity must be …

Federal Estate And Gift Taxation Of Joint Interests: Planning And Policy Perspectives, Hugh D. Brown

Vanderbilt Law Review

This Note will first provide a brief background outlining the incidents of joint tenancy which make it an attractive form of co-ownership under state law. This background section also will place joint ownership in the overall perspective of federal estate and gift taxation by pointing out the impossibility of achieving certain basic federal estate planning objectives in an estate composed primarily of jointly held assets. The Note will then analyze the specific provisions of the Internal Revenue Code governing federal estate and gift taxation of joint interests. This analysis will: first, focus on some of the legal problems generated by …

Book Reviews, Morris L. Cohen, Judith T. Younger

Vanderbilt Law Review

Dictionary of Legal Abbreviations Used in American Law Books by Doris Bieber

The proliferation of legal sources and abbreviations poses two related problems--first, the need for standardized citation forms,and second, the need for guides to commonly used abbreviations. The first problem has been difficult to solve, and universal acceptance of standard citations is unlikely to be achieved. A Uniform System of Citation, published by the Harvard Law Review Association, in collaboration with the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal, has attained wide acceptance and has become the authoritative guide for legal citations …

Inconsistency In The United States Courts Of Appeals: Dimensions And Mechanisms For Resolution, Stephen L. Wasby

Vanderbilt Law Review

This Article is based on an extensive study of the United States Courts of Appeals for the Eighth and Ninth Circuits that focused on two interrelated questions. The first question was how judges in geographically large circuits communicate with each other when they are not all stationed in the same city.' The focus of this Article is on the second question-the problem of intracircuit inconsistency. The study is based on largely open-ended interviews with the Ninth Circuit's active-duty and senior circuit judges and with some active-duty and senior district judges who had sat most frequently with the court of appeals …

Antitrust Enforcement, Freedom Of The Press, And The "Open Market": The Supreme Court On The Structure And Conduct Of Mass Media, William E. Lee

Vanderbilt Law Review

This Article examines the Supreme Court's attempts to foster open markets by altering either the structure or the conduct of mass media enterprises." Structure and conduct are the two main determinants of market performance. Market structure "means those characteristics of the organization of a market that seem to exercise a strategic influence on the nature of competition and pricing within the market." Some characteristics of market structure include degree of buyer concentration, degree of seller concentration, degree of product differentiation, and entry conditions. Market conduct, on the other hand, comprises the practices, policies, and devices which firms employ in adjusting …

Due Process For Hill-Burton Assisted Facilities, Margaret L. Huddleston

Vanderbilt Law Review

The need to make health care available to all Americans does not justify the impairment of governmental contracts with Hill-Burton grantees. When substantial rights are greatly impaired by retroactive legislation, the need for a strong governmental justification becomes more acute. The impairment caused by the post-1947 Hill-Burton regulations, particularly the 1979 regulations, is neither reasonable nor necessary in light of the nature and extent to which they impair substantial private rights. The recent Hill-Burton regulations attempt to make health care more available to Americans,but the Government seeks to do this without additional financial expenditure on its part. Although the goal …

Regulation Of Programming Content To Protect Children After Pacifica, Dabney E. Bragg

Vanderbilt Law Review

This Note examines the "protect the children" rationale as justification for the regulation of program content to determine if it is likely to withstand future challenges. Initially, the Note reviews the Pacifica decisions to illustrate how the rationale recently has been employed. The Note then considers this rationale in light of traditional first amendment analysis and the interface of that analysis with the rights of children, concluding that the rationale does not justify abridgment of the first amendment. The Note then considers the effect of broadcasting's "unique characteristics" upon this analysis, concluding that this added element does not tip the …

Decision To Prosecute: Organization And Public Policy In The Antitrust Division, C. Paul Rogers, Iii

Vanderbilt Law Review

Professor Suzanne Weaver's first book, Decision To Prosecute: Organization and Public Policy in the Antitrust Division, is a study of the Antitrust Division of the Department of Justice, its institutional behavior and its mechanisms for public policy formation.Although Professor Weaver's audience is not limited to the legal community, Decision To Prosecute will stimulate in two ways the interest of antitrust students, scholars, and practitioners. On one level, the reader will learn something about the internal operations of the Antitrust Division, and may reconsider his preformed judgments about that influential, trenchant branch of the Justice Department.

Constitutional Constraints On Initiative And Referendum, David J. Jordan

Vanderbilt Law Review

This Note examines possible constitutional constraints on initiative and referendum. Part II briefly discusses typical initiative and referendum procedures and contrasts these with representative legislative processes. Part III examines the constitutional significance of the differences highlighted in Part II. Finally, Part IV concludes that because of the peculiar political dynamics of initiative and referendum, which diminish normal safeguards of minority interests, courts may appropriately apply heightened due process and equal protection standards when reviewing direct legislation.

Loosening The Grip Of The Dead Hand: Shall We Abolish Legal Future Interests In Land?, C. Dent Bostick

Vanderbilt Law Review

This Article is concerned with a dilemma in the law of Future Interests. The dilemma stems from the needs and demands of a modern society to convey land cleanly and quickly and from the desire of property owners, especially landowners, to direct from the grave the on-going disposition of their property. This desire of landowners has always played a role in English and American property law. Much of the energy of the early judiciary was devoted to counter balancing the numerous ingenious arrangements devised by persons to effectuate continual control of their property.

"Doing Business": Defining State Control Over Foreign Corporations, William A. Holby

Vanderbilt Law Review

This Note will attempt to analyze the present status of the term "doing business" or the substitute terminology used to define that level of activity sufficient to subject a foreign corporation to state control in a particular context.' After defining the degree of activity necessary to permit the state to exercise control in each context, this Note will analyze the accuracy and utility of using terminology such as "doing business" in describing whether corporate activity within a state is sufficient to permit state exercise of legislative or judicial jurisdiction. This Note concludes by pro-posing that use of such ambiguous language …