Law Commons^™

Diminished Capacity-Recent Decisions And An Analytical Approach, Robert P. Bryant, Corbin B. Hume

Vanderbilt Law Review

The concept of diminished capacity allows a defendant in a criminal case to prove, usually by presenting psychiatrists who testify that he suffered from an abnormal mental condition, that he was unable to entertain the particular mens rea required for conviction.' Although courts historically have been reluctant to admit such testimony, in recent years a growing number of jurisdictions have recognized the concept of diminished capacity. Recent decisions in Pennsylvania, the District of Columbia, and North Carolina, as well as recently adopted statutes in ten other jurisdictions,illustrate the evidentiary, social, and constitutional issues raised by the concept of diminished capacity. …

Products Liability--Liability Of Transferee For Defective Products Manufactured By Transferor, P. Anthony Lannie

Vanderbilt Law Review

In the landmark decision, Greenman v. Yuba Power Products,Inc., , the California Supreme Court eliminated a similar barrier to consideration of products liability goals-the breach of warranty theory designed to meet the needs of commercial transactions. Justice Traynor addressed the central question-"When should the manufacturer be responsible to those injured by his products?"'-and concluded that "rules . . .that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer's liability to those injured by their defective products unless those rules also serve the purposes for which such liability is imposed."' Confronted with another …

The Continuing Presidential Dilemma, Thomas Blau

Vanderbilt Law Review

The problems of the Presidency are not new. The transformation has occurred in the evaluation of such behavior and especially in the concept of the proper balance between the Presidency and Congress.Changing personalities in office may account for much of the evolution of the institutional critiques. Organizing the Presidency--much to Stephen Hess's credit--does not participate in the simplistic version of this dialectic. Despite having served on the staffs of two Presidents, he calls for a drastic diminution in the power of the White House staff in favor of its rival, the Cabinet. An effective Presidency, in his view,requires a more …

Recent Cases, Sara P. Walsh, Don B. Cannada, Frances L. Adams, William T. Luedke, Iv

Vanderbilt Law Review

Civil Procedure - Appellate Jurisdiction - Orders Denying Disqualification of Counsel on Ethical Grounds Are Not Final Decisions Subject to Immediate Review Under 28 U.S.C. § 1291

Sara Porter Walsh

Petitioner,' an applicant for a Federal Communications Commission (FCC) broadcasting license, sought interlocutory review of a Commission order' denying a motion to disqualify the law firm that had represented competitor RKO for thirty years. Petitioner alleged that participation by the firm, which included an attorney who was chairman of the FCC while RKO's application was under consideration, constituted a violation of Canons Five and Nine' of the ABA Code of …

Antitrust Consequences Of United States Corporate Payments To Foreign Officials, James F. Rill, Richard L. Frank

Vanderbilt Law Review

This Article examines the feasibility and desirability of marshalling section 2(c)' of the Clayton Act as amended by the Robinson-Patman Act and sections 1 and 2 of the Sherman Act against a practice having deep legal, political, and emotional significance in the United States and overseas. Difficult questions of jurisdiction and coverage are presented, as are major issues of public policy on what the role, if any, should be for these provisions.

Judicial Impeachments And The Struggle For Democracy In South Carolina, James W. Ely, Jr.

Vanderbilt Law Review

Judicial tenure had become a sensitive issue in the colonies before the American Revolution. Although the Act of Settlement of 1701 guaranteed tenure during good behavior for judges in England, this statute did not extend to the colonies, and royal governors regularly were instructed to issue judicial commissions at the pleasure of the Crown. Judges in New York briefly secured appointments for good behavior during the 1750's, but in 1761 the King in Council directed that henceforth no commission could be granted except at pleasure. In 1759 the Pennsylvania Assembly passed a measure providing that judges in that colony would …

The Early Legal Career Of Howell Jackson, Terry Calvani

Vanderbilt Law Review

Felix Frankfurter observed in 1937 that "American legal history has done very little to rescue the [United States Supreme] Court from the limbo of impersonality."' Subsequently, numerous individual and collective works have focused on the more prominent figures in the history of that institution.' Unfortunately, there remain many justices of the Supreme Court who have received relatively little scholarly attention. Yet, as one political scientist has recently lamented, "[until] there is a fuller awareness of the inter-play between individual personalities and decision making, it is unlikely there will be 'an adequate history of the Supreme Court."

One such individual is …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

THE ARAB OIL WEAPON

By Jordan J. Paust & Albert P. Blaustein

Dobbs Ferry, New York: Oceana Publications, 1977. Pp. 370.$27.50.

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ARBITRATION IN SWEDEN

Stockholm: Stockholm Chamber of Commerce, 1977. Pp. 212. $25.00.

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THE DECLINE OF DEMOCRACY IN THE PHILIPPINES

A Report of Missions by William J. Butler, John P. Humphrey, & G.E. Bisson. Geneva: International Commission of Jurists, 1977. Pp. 97. $4.00.

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DE-RECOGNIZING TAIWAN: THE LEGAL PROBLEMS

By Victor H. Li

Washington: Carnegie Endowment for International Peace, 1977.Pp. 48. $1.50.

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EAST-WEST TRADE, A SOURCEBOOK ON THE INTERNATIONAL ECONOMIC RELATIONS OF SOCIALIST COUNTRIES AND THEIR LEGAL …

Foreign Accumulation Trusts And The Tax Reform Act Of 1976, David H. Simmons

Vanderbilt Journal of Transnational Law

If the foreign trust is not a grantor trust under the Grantor Trust Provisions (sections 671-679), then the new Act creates several new disparities in the tax treatment between it and a corresponding domestic accumulation trust. Domestic accumulation trusts are no longer subjected to a capital gains throw back, while capital gains of foreign trusts are included in DNI, subject to throw back, and then taxed as ordinary income to the beneficiary because of the abolition of the character rules upon accumulation distribution. Foreign trusts are subjected to throw back of accumulation distributions even though the accumulation was during the …

Recent Decisions, William W. Allen, Alexander A. Hassani, Peter A. Schuller

Vanderbilt Journal of Transnational Law

INCOME TAX--LIQUIDATION OF FOREIGN CORPORATIONS--SHAREHOLDERS IN A LIQUIDATING FOREIGN CORPORATION MUST INCLUDE IN THE CORPORATION'S EARNINGS AND PROFITS ACCOUNT THE AMOUNT OF RECAPTURED EXCESS DEPRECIATION REALIZED UPON THE SALE OF ITS ASSETS

William W. Allen

CUSTOMS DUTIES--ANTIDUMPING ACT OF 1921--THE SECRETARY OF THE TREASURY HAS No AUTHORITY TO TERMINATE A WITH-HOLDING OF APPRAISEMENT PRIOR TO THE PUBLICATION OF A DUMPING FINDING BASED ON A LIKELIHOOD OF INJURY DETERMINATION BY THE INTERNATIONAL TRADE COMMISSION

Alexander A. Hassani

INTERNATIONAL BANKING--BANKRUPTCY-FOREIGN BANKS NEITHER REGULATED BY NOR LICENSED To Do BUSINESS IN THE UNITED STATES MAY FILE FOR VOLUNTARY BANKRUPTCY UNDER THE NATIONAL BANKRUPTCY …

Eec Antitrust: Community Adoption Of The Parker Doctrine, Gilbert P. Verbit

Vanderbilt Journal of Transnational Law

Once it concluded that the Sherman Act did not apply to the states, the United States Supreme Court apparently found it necessary to hold that the Act did not reach agents of the state or those whose action was compelled by the state. The state action defense to an antitrust proceeding was thus created. In Cantor, at least four Justices decided they did not like the results of this experiment, and they virtually put an end to the state action defense. The Court of Justice of the European Communities was not similarly pressured to find a state action defense to …

Recent U.S. Efforts To Control Nuclear Proliferation, John D. Gleissner

Vanderbilt Journal of Transnational Law

The explosion of a nuclear device by India on May 18, 1974, initiated a new wave of concern for the prospects of limiting the proliferation of nuclear weapons. Subsequent developments such as the Nixon proposal to provide nuclear materials to Egypt and Israel and the announcement by West Germany of its intentions to sell Brazil a plutonium reprocessing facility increased fears in the United States that the number of countries possessing nuclear weapons would continue to grow at the expense of world peace and security. Apprehension is likely to continue since the development of an atomic bomb blueprint by a …

Legislating Business Morality: A Look At Efforts By Two International Organizations To Deal With Questionable Behavior By Transnational Corporations, James S. Glascock

Vanderbilt Journal of Transnational Law

The news media have been filled in recent years with stories of questionable conduct by transnational corporations (TNCs). Allegations and admissions of bribes and "dubious" payments or "improper" benefits to governmental and political figures and groups have been rife. In response, numerous national bodies have set about the task of investigating and dealing with questionable TNC conduct. In the United States, the Securities and Exchange Commission, the Internal Revenue Service, the State Department, the Defense Department, the Justice Department, the Overseas Private Investment Corporation, the Congress, and the Executive have been active on the problem.

Various international bodies have also …

American And British Employment Discrimination Law: An Introductory Comparative Survey, Robert N. Covington

Vanderbilt Journal of Transnational Law

Age, alienage, ethnicity, race, religion, and sex lead to differential treatment of individuals the world over. Employment discrimination is felt most acutely in those industrialized nations where one's income level is the major determinant of so many other things: where one lives, what one wears, how one's children are educated. Concern over the social and economic consequences of employment discrimination has led to the development of new legal techniques on both sides of the Atlantic. The recent enactment in Britain of the Sex Discrimination Act, 1975, and the Race Relations Act, 1976, invites a comparison of those statutes and related …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

A Practical Guide to U.S. Taxation of Overseas Americans

By Thomas E. Johnson

London: Raftwain Ltd., 1977. Pp. 311. $25.00.

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The Impact of International Organizations on Legal and Institutional Changes in the Developing Countries

New York: International Legal Center, 1977. Pp. 275.

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U.S. Customs Tariffs and Trade

By Eugene T. Rossides

Washington, D.C.: The Bureau of National Affairs, Inc., 1977. Pp. 826. $45.00.

Recent Development--Panama Canal Treaties, David M. Himmelreich

Vanderbilt Journal of Transnational Law

Given its strategic interest in the Canal, it might well be asked why the United States would sign a Treaty which does not give an unambiguous right of intervention. Under the Treaty, the United States has at best only a weak legal justification for intervention, which will be useful in domestic politics should the popular opposition to "giving the Canal away" become critical, but which will be much less convincing elsewhere. World opinion is suspicious of the reliance of any great power on intervention, regardless of the legal rationale. The justification will be least persuasive in Latin America where there …

Nigeria: Still Safe For U.S. Investors?, Jerome F. Donovan

Vanderbilt Journal of Transnational Law

Doing business in Nigeria has never been easy. Delays and frustrations are commonplace. Coupled with recent political changes, these formidable considerations may dissuade many potential investors from entering Nigeria. Nigeria, however, has an important role in international economics, which is sure to increase in significance. Thus, American businessmen may find that they cannot afford to ignore Nigeria, despite their inclination to do so. Nigeria's government has taken positive and far-reaching steps to encourage and protect foreign investment in order to better meet the country's economic, social, and political needs. Innovative American businessmen sensitive to local needs can certainly find their …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

1. ADMIRALTY

"CONTACTS" TEST BASED ON 99 PERCENT AMERICAN OWNERSHIP OF A FOREIGN CORPORATION WILL NOT BE APPLIED TO CIRCUMVENT THE RECIPROCITY PROVISION OF THE PUBLIC VESSELS ACT

SEARCH OF A U.S. VESSEL ON THE HIGH SEAS PURSUANT TO STATUTE AUTHORIZING SAFETY INSPECTIONS BY THE U.S. COAST GUARD MAY NOT BE ASSISTED BY AGENTS OF OTHER FEDERAL AGENCIES

LAND-BASED TORT PRINCIPLES OF NEGLIGENCE APPLY TO LIABILITY OF VESSELS FOR INJURIES TO LONGSHOREMEN RATHER THAN PRINCIPLES OF UNSEAWORTHINESS OR VIOLATION OF NONDELEGABLE DUTY

2. ALIEN'S RIGHTS

INTERRUPTION OF AN ALIEN'S PRESENCE IN THE UNITED STATES AND INVESTOR STATUS OF AN ALIEN …

The Legal Status Of Foreign Investments In The East African Common Market, T. O. Elias

Vanderbilt Journal of Transnational Law

One noticeable development in the field of International Economic Law during the last decade since the United Nations ushered in the new era of an economic world order has been the growing literature on the law of investments, especially in respect to developing economies. International Economic Law itself is a recent specialist off-shoot of general public international law, having been nurtured and popularized as a subject of separate university discipline in its own right within the last 30 years or so by Schwarzenberger among others. Notable, generally, among the specialized studies on international investments law are Worthley's Expropriation in Public …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Offshore Sandblaster not Permanently Assigned to his Vessel is not a Seaman Under the Jones Act

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Freight for a Partial Shipment of Cargo which has been Loaded Aboard a Vessel is Subject to Maritime Garnishment

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Compensation Awarded to Shipbuilding Employee Injured at Shipyard during Maintenance Work on Previously Unused Crane

Fiduciaries Under Erisa: A Narrow Path To Tread, H. Stennis Little, Jr., Larry T. Thrailkill

Vanderbilt Law Review

The Employee Retirement Income Security Act of 1974'(ERISA) introduced a new era for a broad spectrum of American society. The new Act had a startling impact not only upon pension plan sponsors, participants, and beneficiaries, but also upon the myriad group of individuals and institutions providing services,advice, and counsel to the pension industry. This article primarily will consider the new law as it affects the fiduciary, creating new responsibilities and increased liability. Several areas in which the new law creates special problems then will be considered.

Recent Cases, Samuel E. Stumpf, Jr., M. Carolyn Barefield, Robert S. Reder, Stephen C. Morton, Randolph C. Coley

Vanderbilt Law Review

Noerr-Pennington Immunity for Joint Efforts to Influence Governmental Action - Intent to Cause Competitive Injury, Evidenced by Repeated, Baseless Opposition Before an Adjudicatory Body, Does Not Result in Loss of Noerr-Pennington Immunity Absent Specific Allegations of Conduct External to or Abusive of the Adjutory Processes

Samuel E. Stumpf, Jr.

Constitutional Law - First Amendment - Student's Right to Receive Information Precludes Board's Removal of Allegedly Offensive Books from High School Library

M. Carolyn Barefield

Constitutional Law-Search and Seizure - Federal Courts Are Bound by Federal Wiretapping Statutes and Will Not Exclude Evidence Seized by State Agents in Violation of More …

Presidential Self-Regulation Through Rulemaking, L. Harold Levinson

Vanderbilt Journal of Transnational Law

Editor's Note: This is the second part of a two part article by Professor L. Harold Levinson dealing with executive rulemaking. The first part appeared in Volume 9, number 4, and examined the law of the United States and the United Kingdom. This part deals with France and the European Communities, and concludes with comparative comments.

Recent Decisions, Steven A. O'Rourke, Henry C. Wood, Jr., Christopher Ryan, Phyllis K. Fong, Clifford D. Harmon

Vanderbilt Journal of Transnational Law

Admiralty--Workmen's Compensation--Longshoremen's and Harbor Workers' Compensation Act covers Waterfront Injuries to Cargo Handlers Who sometimes work Offshore or Who unpack Containers

Steven A. O'Rourke

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European Communities--Restrictive Practices--Abuse of Dominant Position--Discriminatory or Unfair Pricing Policies among EEC Customers by a Corporation in a Dominant Market Position Infringes Article 86 of the EEC Treaty

Henry Clay Wood, Jr.

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Federal Jurisdiction--State Regulation of Interstate Commerce--Federal Courts have Jurisdiction to Enjoin State Officials from Enforcing State Laws Regulating Interstate Tanker Trade where Congress intended that Federal Regulations Pre-empt the Area

Christopher Ryan

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Securities Regulation--Jurisdiction--Allegations that an International Securities Transaction involving Stock …

The Contemporary Evolution Of Intermodal And International Transport Regulation Under The Interstate Commerce Act, Paul S. Dempsey

Vanderbilt Journal of Transnational Law

n our era of rapidly diminishing impediments to the free flow of capital, goods, technology, and services between nations, transnational commercial activity has become extremely important to our national economy. New frontiers are being broken as raw materials and manufactured products move more freely between nations which have heretofore shared little in culture, history, religion, race, or economic and political philosophy. Certainly, governmental initiatives designed to eliminate trade inhibitions are responsible for much of this growth. Tariff walls are crumbling. The world economy is prospering. The interdependencies that flourish between members of the world community as a result of bilateral …

Recent Decisions, Ronald P. Cima, Douglas Berry, Jon L. Goodman

Vanderbilt Journal of Transnational Law

Recent Decisions

Act of State Doctrine--Act of State Doctrine precludes Judicial Inquiry into the Motivation underlying the Acts of a Foreign State in a Private Antitrust Suit

Ronald P. Cima

Preemption--State Statute Prohibiting Nonresidents or Aliens from Fishing in its Waters is Preempted by Federal Law

Douglas Berry

Warsaw Convention--Provision for Limiting Liability--Recoveries in Personal Injury Actions against Air Carrier Employees, as Well as Against the Air Carrier itself, are to be Limited by the Warsaw Convention

Jon L. Goodman

Arms Transfers By The United States: Merchant Of Death Or Arsenal Of Democracy, Archibald S. Alexander

Vanderbilt Journal of Transnational Law

Controversial events of the last few years have presented the American public with the question whether arms transfers by the United States have gotten out of hand. Has our country become the chief "merchant of death," as believed by many at the time of Senator Nye's investigation soon after World War I, or is it the "arsenal of democracy," as generally believed during and after World War II? This article deals with transfers of all kinds of non-nuclear arms from or by the United States, and it examines all types of transfers including grants, transfers on credit, government to government …

Property And Tort In Nuclear Law Today, Kazimierz Grzybowski, William Dobishinski

Vanderbilt Journal of Transnational Law

Legal regimes regulating the exploitation of atomic energy follow three patterns. The pattern adopted in a particular country depends upon its social and governmental structure. In socialist states, like the Soviet Union, the state owns and uses nuclear materials and installations and is a monopolistic insurer against atomic hazards. In such states nuclear energy law is simplicity itself. It consists of instructions and regulations on the handling, transport and storage of nuclear materials, and the management of nuclear installations by administrative agencies. An important part of the regulations deals with the safety and health of the workers.

Countries in which …

Book Review, Nicholas A. Sims

Vanderbilt Journal of Transnational Law

It is a pleasure to welcome a well-written book on arms control, and one, moreover, that has grown out of the exigencies of an undergraduate course and is designed to meet the needs of students. Because INTERNATIONAL ARMS CONTROL: ISSUES AND AGREEMENTS was the work of several hands, its lucidity and consistency are the more admirable. Comprehensive in scope, it goes just far enough in setting arms control in its various contexts (political, military, cultural, and ethical) without straying out of bounds. It raises a multitude of questions without pretending to answer them all. I found it refreshing to read …

Recent Decisions, Robert S. Patterson, George M. Taylor, Iii

Vanderbilt Journal of Transnational Law

The instant decision is an evolutionary step in the development of extraterritorial antitrust but it falls short of establishing a workable standard. What the decision does point out is that the courts lack the experience and expertise necessary to deal effectively with the application of antitrust laws abroad. This inexperience will further erode the consistent application of United States antitrust laws abroad as the courts begin to hear cases involving less obvious offenses and less significant effects on United States commerce." If, as Sabbatino suggests,' the primary competency of the Executive in foreign affairs is to be the major factor …