Law Commons^™

Police Use Of Trickery As An Interrogation Technique, James G. Thomas

Vanderbilt Law Review

This Note maintains that trickery can be effectively curtailed despite the failure of Miranda to do so. This Note argues that trickery in the interrogation room is a violation of fourteenth amendment substantive due process. The Supreme Court has recently stated, in very unambiguous terms, that due process requirements exist independently of the fifth amendment Miranda requirements in the interrogation context." This Note therefore proposes an objective due process standard that would prohibit trickery. The violation of this due process standard would require the exclusion at trial of confessions induced by trickery. Because the exclusionary rule is not a sufficient …

Conflicting Interpretations Of The Sherman Act's Jurisdictional Requirement, Robert D. Eckinger

Vanderbilt Law Review

Over the past fifty years, plaintiffs have called upon the federal judiciary to deal with antitrust disputes of an increasingly local nature. Although the courts have responded by generally broadening the range of activities which satisfy the substantive elements of the Sherman Act, their approach to the jurisdictional requirement of the statute has been far from consistent. As a matter of statutory construction, this inconsistency, when compared to the expansive jurisdictional approach applied to other statutes based on the commerce clause, is not justified, at least in the absence of a congressional intention to limit the reach of the Sherman …

Taiwan Relations Act: Legislative Re-Recognition, Carl I. Gable

Vanderbilt Journal of Transnational Law

The surprise and drama of President Carter's recognition of the People's Republic of China as "the sole legal government of China" have overshadowed the unique legal concepts on which his policy rests. Those concepts impact directly on private trade and investment transactions with Taiwan. They may also sound the death knell for traditional definitions of the term "recognition" in international law and diplomacy.

The recognition of a government such as the People's Republic of China (and the related termination of recognition of the Republic of China government) is a unique hybrid: a political act of the executive branch which directly …

Appealability Of District Court Orders Disapproving Proposed Settlements In Shareholder Derivative Suits, Harold N. Falls, Jr.

Vanderbilt Law Review

This Recent Development will trace briefly the history of the collateral order doctrine, focusing on recent treatment by the Supreme Court. After an examination of the elements of a district court's decision to approve or disapprove a derivative suit settlement, the Recent Development will analyze the conflicting results reached by the United States Court of Appeals for the Second and Ninth Circuits in light of the Supreme Court's apparent retrenchment. Although finding that the Second Circuit's decision to reject appeal ability is most consistent with recent Supreme Court pronouncements, this Recent Development submits that the Supreme Court has adopted an …

Income And Gift Tax Treatment Of A Waiver Of Rights To Future, Undeclared Dividends By A Corporate Shareholder, Cornelia H. Boozman

Vanderbilt Law Review

This Note will attempt to set forth and analyze the present state of the law concerning dividend waivers.After determining that this law gives taxpayers few standards for determining the proper tax characterization of a dividend waiver, the Note concludes that analogous areas of tax law must be examined for guidance. Finally, the Note identifies and discusses several analogies that might be helpful to a taxpayer faced with a dividend waiver problem.

Taxation Of Sale And Leaseback Transactions - A General Review, Kenneth L. Stewart

Vanderbilt Law Review

This Note first discusses in detail the operation of a sale and leaseback transaction and delineates its various uses. The Note next points out the tax and financial advantages and disadvantages of the sale and leaseback, sets forth the possible avenues of attack on the transaction by the Internal Revenue Service (Service), and describes the consequences of a successful attack by the Service. The final section of the Note analyzes the judicial treatment of sale and leaseback transactions for tax purposes, focusing both on the traditional tests used by the courts and on changes in the law brought about by …

International Nuclear Development In The Age Of Interdependence, William O. Doub, Lawrence A. Weiss

Vanderbilt Law Review

The proposal set forth in ... this Article admittedly is no full solution to the problem of preventing the spread of nuclear weapons. Just as important as the control over nuclear materials and technology is the political effort to provide nations with sufficient security so that they perceive little need to develop or acquire nuclear weapons. This Article does assert, however, that a necessary part of any full solution is the cooperative development of a new international consensus regarding the policies governing the international nuclear market and the means to effectuate these policies. Based on the success of the regime …

The Negative Commerce Clause And State Environmental Legislation-Externalities Suggest Application Of The Tax Standard To Environmental Regulations, Douglas K. Stewart

Vanderbilt Law Review

This Note advocates judicial application of this tax analysis not only to tax environmental legislation, but also to regulatory environmental legislation. The theoretical justification for this thesis is provided by the economic concept of externalities. Externalities are elements used in the production of a marketed item without cost to the producer, but at a cost to others. The term "externality"stems from the fact that the use of the element of production is not included in the market price of the item. Undesirable environmental impact has been recognized as an externality -- a cost to those people adversely affected by it …

Estate Tax Deductibility Of Underwriters' Expenses After An Executor's Sale Of Stock: A Loophole In Section 2053, Mark D. Maloney

Vanderbilt Law Review

This Recent Development will examine the relationship between two Code provisions that are essential to the calculation of the taxable estate. Section 2031 establishes the value of the "gross estate," and section 2053 provides that certain administrative expenses are deductible from the gross estate. Recently, in Estate of Joslyn v. Commissioner and Estate of Jenner v. Commissioner,' two United States Courts of Appeals applied sections 2031 and 2053 in a manner that substantially benefits estates that possess large holdings of a particular stock. Because large blocks of stock are difficult to liquidate, the per-share price of the stock will actually …

Book Reviews: Ethics At The Edges Of Life / Samuel Johnson, L. Harold Levinson, J. Allen Smith

Vanderbilt Law Review

Professor Paul Ramsey,' writing as a Christian ethicist, has revised, extended, and updated the Bampton Lectures in America that he delivered in 1975 at Columbia University. The resulting book is Ethics at the Edges of Life: Medical and Legal Intersections. A substantial portion of the book is devoted to critical analysis of a number of landmark court decisions, all of which were rendered after his delivery of the Bampton lectures--Planned Parenthood v. Danforth, on abortion; Commonwealth v. Edelin, on the treatment of a fetus during or immediately after an abortion; In re Quinlan, on the termination of life support; and …

Recent Publications, Journal Staff

Vanderbilt Law Review

Bakke, DeFunis, and Minority Admissions: The Quest for Equal Opportunity

By Allan P. Sindler.

Sindler describes the admissions programs at the Universities of Washington and California-Davis, and the respective experiences of Marco DeFunis and Allan Bakke that preceded their litigation. Then, documenting the disparity in academic qualifications between accepted minorities and rejected nonminorities, Sindler addresses the broad issue before the courts. Is the reservation of academic "places" for minorities an inherently two-track system, which operates as an illegal quota to exclude "better-qualified" applicants; or may a school utilize race as a basis for selection in order to fulfill other commitments …

Justice Stevens: The First Three Terms, George C. Lamb, Iii, Charles L. Schlumberger, D. J. Simonetti, James D. Spratt Jr., Joel R. Tew, Douglas W. Ey, Jr. Special Projects Editor

Vanderbilt Law Review

This Special Project undertakes an examination of Justice Stevens' Supreme Court opinions in an effort to identify his philosophical orientations, to evaluate the consistency of his views, and to determine the extent to which he has developed workable analytical methods. To achieve these goals, Justice Stevens' opinions are examined in three contexts: first, the area of federal-state relations,including commerce clause and supremacy clause questions; second, the individual rights area, emphasizing criminal constitutional and first amendment issues, and problems of fifth and fourteenth amendment analysis; and third, questions concerning the proper role of the Supreme Court in the constitutional scheme. Even …

Book Reviews: Two Cheers For Capitalism / Does Freedom Work?, Henry Aaron

Vanderbilt Law Review

Although Kristol's book is vastly better than Devine's--both in style and in content--the two books suffer from a common short-coming. Kristol sees a central institution of modern capitalism--the corporation-under aggressive attack, and seeks to defend it. One may disagree with his appraisal of the risks, and resent his tendency to tar all critics with the inanities of the most extreme, but he has a strong case to make-that the rise of modern American capitalism has been a magnificent success story. This success has required an uneasy cooperation between free-market institutions and collective restraints and modifications of market outcomes. By seeing …

The Use Of Racial Preferences In Employment: The Affirmative Action/Reverse Discrimination Dilemma, Judith M. Janssen

Vanderbilt Law Review

This Note examines the constitutional and statutory background of the affirmative action/reverse discrimination issue and analyzes judicial decisions confronting the dilemma." The Note then explores grounds on which the Supreme Court might permit voluntary affirmative action using quotas. Existing EEOC guidelines and Executive' Order 11,246 offer both an objective basis on which to develop a voluntary program and a safeguard against misuse of affirmative action." When the program is established in a collective bargaining agreement, moreover, the national policy of allowing free play for the bargaining process to establish terms and conditions of employment gives an additional reason for allowing …

Access To The Work Product Of An Attorney Disqualified For Opposing A Former Client: First Wisconsin Mortgage Trust, Edward S. Annunziato

Vanderbilt Law Review

The purposes of this Recent Development are to analyze the effect of the Seventh Circuit's work product decision on disqualification standards and to develop a consistent framework for determining whether access to the work product of an attorney disqualified for opposing a former client should be allowed. This Recent Development urges that in order to provide the effective guidance necessary for both voluntary compliance and judicial enforcement, the Code must incorporate those judicial standards that most closely reflect its standards in this area. Thus the Recent Development proposes an Ethical Consideration regarding access to work product that reflects the ethical …

Attorney Advertising Over The Broadcast Media, I. Terry Currie

Vanderbilt Law Review

This Note will examine the first amendment issues that broadcast attorney advertising raises. The Note will begin with a general discussion of the analytical approach adopted by the Supreme Court in freedom of speech and commercial speech cases. Next, the Note will explore the "special problems" and unique characteristics of the broadcast media as they relate to the interests affected by broadcast attorney advertising, concluding that the benefits afforded to consumers outweigh the potential risks created by such advertising. The Note will also briefly consider various regulations on broadcast advertising adopted by the bar at both the state and federal …

The Changing Meaning Of "Gift": An Analysis Of The Tax Court's Decision In Carson V. Commissioner, Jeffrey Schoenblum

Vanderbilt Law Review

This Article will focus on the Carson case in an effort to identify the emerging meaning, if any, of gift. Following a consideration of the factual background of the case in Part II, Part HI will analyze critically and in-depth each of the five Carson opinions in an effort to decipher the various currents at play and any common ground that may still be shared by a majority of the court. Finally, Part IV will consider the decision's likely consequences and the long-term prospects for a settled meaning for gift, one that is not only workable, as is the case …

From De Facto To Statutory Exemption: An Analysis Of The Evolution Of Legislative Policy Regarding The Federal Taxation Of Campaign Finance, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

This article first explores the development of the de facto system of tax exemption and identifies the tensions that led to its demise. The analysis then details the substitution of a statutory structure in place of the traditional informal arrangement and examines the potential present in that structure for substantial IRS interference in the political process.

The Changing Meaning Of "Gift": An Analysis Of The Tax Court's Decision In "Carson V. Commissioner", Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The complexity of detail that characterizes the Internal Revenue Code (Code) has been the subject of intense criticism and only faint praise. Yet, one of the more striking anomalies of the Code is that its often suffocating detail coexists with the sparest definitions of many key terms. The term "gift" is a prime example. Although its meaning plays an instrumental role in income and gift taxation, the Code nowhere defines the term. As a result, the task of fleshing out its meaning has largely fallen on the Treasury, through the issuance of regulations and rulings, and on the courts, which …

Some Practical Questions Concerning The Effect Of The Proposed Federal Securities Code On Civil Litigation, J. Vernon Patrick, Jr.

Vanderbilt Law Review

A major impetus for the launching of the Federal Securities Code project in 1969 was the view, widely held by businessmen and their lawyers, that it was far too easy for investors to bring class action suits under the federal securities laws, seeking multi-million dollar judgments against business corporations, directors, accountants, and lawyers.' The business community's concern about possible exposure to large judgments in securities litigation was heightened by the news that plaintiffs had obtained a judgment in a class action brought against the issuer and several "outside director"defendants in Escott v. Bar Chris Construction Corp., and by several United …

The American Law Institute's Proposed Federal Securities Code, Editor In Chief

Vanderbilt Law Review

This issue of the Law Review represents Part Two of the symposium on the Proposed Federal Securities Code. This issue contains articles on federal-state relations under the Code; the impact of the Code on the Trust Indenture Act of 1939; the extraterritorial reach of the Code; and the effect of the Code on civil litigation. It is hoped that these articles will continue the fine work begun by Part One of the symposium, providing our readers with a thorough analysis of these additional sections of the Code and presenting recommendations for constructive changes to be considered in the final process …

Federal-State Relations Under The Federal Securities Code, Jeffrey B. Bartell

Vanderbilt Law Review

There is little in the recorded history of the American Law Institute's Federal Securities Code to indicate that a major rearrangement of regulatory responsibilities between the federal government and the states was a primary object. Milton Cohen's thoughtful article "Truth in Securities" Revisited,I probably the principal catalyst of the codification project, described a new world of securities regulation involving coordinated disclosure and continuous reporting, without any mention of federal-state relations or the blue sky laws. Indeed, when the American Bar Association's Committee on Federal Regulation of Securities first discussed the project in 1966, a suggestion that concurrent consideration be given …

The Extraterritorial Reach Of The Federal Securities Code: An Analysis Of Section 1905, John M. Liftin

Vanderbilt Law Review

Section 1905 of the proposed Federal Securities Code' sets forth the applicability of the Code to transnational securities transactions. The drafters could have stated in each provision of the Code whether and to what extent it was to apply extraterritorially. Instead, they placed in one section a set of general principles that cuts across all other sections of the Code and indicates which sections are to have extraterritorial application. The result is a descriptive guide that relies on a classification of transactions rather than a section-by-section enumeration...

This Article will not analyze the existing cases, except to the extent they …

Corporate Directors' Liability For Resisting A Tender Offer: Proposed Substantive And Procedural Modifications Of Existing State Fiduciary Standards, Oby T. Brewer, Iii

Vanderbilt Law Review

This Note will review recent decisions applying state law fiduciary standards and will propose procedural and substantive modifications to existing standards. The proposed modifications will compel target directors to recognize and fulfill fiduciary obligations when faced with a decision whether or not to resist a tender offer.

The Trust Indenture Act Of 1939 In The Proposed Federal Securities Code, Richard A. Stark

Vanderbilt Law Review

This Article will summarize briefly the significant provisions of the TIA as they currently are applied and will describe and comment upon Code Part XIII, Trust Indentures, as it appears in the 1978 Draft. ... The Code requirement that statutory and optional trust indenture provisions are to be interpreted, applied, and enforced as a matter of federal law will be statutory confirmation of the Morris case. The overall scheme for dealing with trust indentures, trustees,and the related offering statement represents a desirable simplification and updating of the TIA provisions. Significantly, the SEC's enforcement authority regarding trust indentures is expanded to …

Emerging Standards In Supreme Court Double Jeopardy Analysis, Clifford R. Ennico

Vanderbilt Law Review

The purposes of this Recent Development are as follows: to identify and evaluate recent modifications in the Court's double jeopardy analysis, to propose that the Court's 1977 Term double jeopardy standards dilute the double jeopardy protection previously afforded to criminal defendants, and to suggest that the Court should permit a broader scope of appellate review in double jeopardy cases.

Justice On The Tennessee Frontier: The Williamson County Circuit Court 1810-1820, Cornelia A. Clark

Vanderbilt Law Review

This Note examines the history of one early nineteenth-century circuit court and the caliber of its bench and bar. To analyze the workings of that court, this Note applies the analytical framework adopted by Friedman, Blume, and other historians to the raw data provided by a study of the Williamson County Circuit Court records. In each of several substantive areas for which the court's records provide information, the Note first considers Friedman's generalizations about nineteenth-century law and then interprets the Williamson County data in the light of those generalizations and the results of other case studies. This Note proceeds on …

Book Review -- Federal Courts In The Early Republic, Randall Bridwell

Vanderbilt Law Review

FEDERAL COURTS IN THE EARLY REPUBLIC: KENTUCKY 1789-1816.

By Mary K. Bonsteel Tachau.

Princeton, New Jersey: Princeton University Press, 1978. Pp. ix, 234. $16.50.

Reviewed by Randall Bridwell

Southern Violence-Regional Problem Or National Nemesis?: Legal Attitudes Toward Southern Homicide In Historical Perspective, Richard M. Brown

Vanderbilt Law Review

Both inside and outside the South, was the law a cause of the high incidence of homicide, or was it an effect? It was probably more effect than cause, for despite the anti-homicide rigor of its supreme court, on the whole the incidence of killing in Alabama seems to have been no lower than elsewhere in the South. Thus, the conservative Alabama court apparently failed to stem not only the legal trend of the Americanization of the common law of homicide but also the trend of blood-letting in Alabama. In one way this is not surprising, for after all, the …

Comment: Law And Disorder In Nineteenth-Century Kentucky, Mary K. Bonsteel Tachau

Vanderbilt Law Review

Robert M. Ireland's Article, "Law and Disorder in Nineteenth-Century Kentucky," centers on the state constitutional conventions of 1849 and 1890-1891, spiced with newspaper accounts, statutes,court cases, and legislative records. He has said that his Article presents a preliminary overview of some of the principal problems of the criminal justice system of nineteenth-century Kentucky. I hope this means he intends to continue his study so that soon we can expect a full examination of the criminal justice system in that state. I also hope that other scholars then will be inspired by his example to examine other contemporary state criminal justice …