Law Commons^™

The Great Section 38 Property Muddle, J. A. Cragwall, Jr.

Vanderbilt Law Review

Twelve full years have elapsed since section 38 property made its first appearance on the stage of tax law. In those twelve years, a complicated, confusing, ad hoc, and often inconsistent body of rulings and judicial decisions has grown up around the definitional regulation; words and phrases have acquired strange new meanings and connotations in the lush overgrowth of legal reasoning clinging to that regulation. The paradoxes in the regulation (such as that addressed in Weirick) and, more often, the ambiguities resulting from an almost universal failure by the regulations to define, instead of simply illustrate, its terms (such as …

The Role Of The Victim In The Prosecution And Disposition Of A Criminal Case, Donald J. Hall

Vanderbilt Law Review

A theoretical underpinning of the American system of criminal justice is the notion that a criminal misdeed is a wrong against the entire society.' Accordingly, the local, state and federal governments, acting as the representatives of society, assume the duty and responsibility of prosecuting the individual wrongdoer. While the individual victim of a crime obviously is the party directly" wronged," society interjects and institutes the formal proceeding to ascertain criminal responsibility and determine the appropriate sanction to be imposed upon the accused. This constitutes a basic distinction between civil and criminal cases; the aggrieved individual is the named litigant in …

The Cost Of Realization By A Secured Creditor In Bankruptcy, J. Hobson Presley, Jr.

Vanderbilt Law Review

In October 1974, business failures increased by eighteen percent, reaching the highest level in any month since March 1971. The number of business failures for that month was the highest in eighty years.' As creditors seek to realize on their security interests, and encounter the problem of who should bear the expense incurred, they may discover that the term "secured" does not adequately describe the ability to recover advances made to the bankrupt debtor. Despite the confusing state of the law in this area, the increasingly inordinate expense of foreclosure in bankruptcy, and the pressures of the current economy, the …

Book Review, James W. Ely, Jr.

Vanderbilt Law Review

The hypothesis of continuity has now been ably tested and challenged by William E. Nelson's fine book, Americanization of the Common Law. Relying upon years of painstaking research in courthouse files throughout Massachusetts, Nelson utilizes unpublished opinions, court records, and attorneys' notes to fashion a striking interpretation of the significant changes that occurred in Massachusetts law following the Revolution. The author undertakes an analysis of the doctrines of substantive law and techniques of law-making and enforcement in order "to trace the emergence of modern American law... Nelson's stress upon nineteenth century majoritarianism and governmental coercion must be qualified by consideration …

Recent Cases, Robert L. Teicher, Timothy C. Maguire

Vanderbilt Law Review

In the 1930 decision of State ex rel. LaFollette v. Kohler, the Wisconsin Supreme Court rejected the earliest free speech challenge to a candidate expenditure limitation. The court held that the state's interest in protecting the integrity of its electoral process outweighed the individual's right of communicating with the public without governmental infringement." The court's identification of the communicative effect of campaign spending anticipated the United States Supreme Court's ruling in Stromberg v. California" that communicative conduct was entitled to protection from government infringement. The Court, however, hampered the effectuation of this protection by failing to define conclusively the point …

A Remedy For The Discharge Of Professional Employees Who Refuse To Perform Unethical Or Illegal Acts: A Proposal In Aid Of Professional Ethics, Jon P. Christiansen

Vanderbilt Law Review

This note will discuss first the duties demanded of a professional in the proper exercise of his ethical responsibilities, including conduct demanded both by criminal statutes and by professional codes of conduct. Secondly, an examination will be made of three alternatives for the enforcement of professional ethics without the necessity of a right to recovery in the discharged employee. Thirdly,the limitations of traditional master-servant theory will be discussed as they relate to a possible cause of action for an "abusive discharge." Finally, this cause of action will be proposed and a consideration will be made of the elements of the …

Federal Regulation Of Retirement Plans: The Quest For Parity, William J. Chadwick, David S. Foster

Vanderbilt Law Review

An analysis of the regulatory scheme behind the varied treatment of retirement plans reveals that many of the distinctions made are not justifiable. For example, an incorporated, one-man law firm with net income of $125,000 can make a deductible contribution to a money-purchase pension plan of $25,000. If the lawyer conducted his practice as a sole proprietorship, however, his annual deductible contribution would be limited to $7,500. The form in which the lawyer conducts his business determines the tax burden that he must assume in providing for his retirement. Thus, retirement parity remains unachieved, even after a comprehenisve revision of …

Judicial Reform At The Lowest Level: A Model Statute For Small Claims Courts, Robert H. Brownlee, Charles L. Lewis, Gregory J. Moonie, William H. Pickering, Paul C. Deemer, Iii Special Projects Editor

Vanderbilt Law Review

The purpose of this Special Project is to analyze the development of procedures for adjudicating small claims, with particular emphasis on the State of Tennessee, and to suggest statutory revisions that may be of value in improving the quality of justice at the lowest level of the judicial system. The Project study commences with an historical survey of the origins of small claims theory and the various court attempts to apply the theory that have been made in the United States during the last half-century. The result of this analysis will be a characterization of a model small claims court.The …

Preferential Economic Treatment For Women: Some Constitutional And Practical Implications Of Kahn V. Shevin, Margaret E. Clark

Vanderbilt Law Review

The apparent willingness on the part of three members of the Supreme Court to sustain legislation granting economic benefits to a selected subgroup of women, while failing to deal with the similar racially suspect classification issue in Defunis, is simultaneously puzzling and disturbing. The key to the result reached in Kahn may be the size of the benefit involved, or the fact that a state tax statute was involved;"' yet the underlying principles in the two cases are logically indistinguishable and the differing approaches taken by certain members of the Court in the two cases are difficult to reconcile...

Thus, …

Recent Cases, Linda A. Bunsey, David M. Thompson, Charles K. Campbell, Jr., Keith B. Simmons, Thomas C. Hundley

Vanderbilt Law Review

If the instant case, rather than Northway, is to become the accepted rule in the area of discounting, consumers and state lenders will be protected while the national bank-lenders will be burdened only slightly, if at all. National banks located in states that permit state lenders to discount loans at the maximum rate, with-out regard to the actual yield, will not be affected. National banks located in states that permit state lenders to discount only to the extent that the actual yield is within the statutory maximum will need to change their practices merely by charging the statutory rate only …

Recent Cases, Stephen K. Rush, Joseph A. Latham, Jr.

Vanderbilt Law Review

Conflicts of Law--Federal Preemption--Aviation Law

Appellant-defendants, the United States' and a national airline whose plane had been involved in a mid-air collision while under radar direction from the FAA, agreed to a settlement of the resulting actions for wrongful death that had been initiated in various federal district courts and consolidated in the Southern District of Indiana. Appellants then sought indemnity and contribution by cross-claim and third-party complaints against appellee-defendants, the owners of the other plane involved in the collision and the estate of its student pilot. The appellees contended that since no right to indemnity and contribution existed under …

An Examination Of Some Considerations Relating To The Adoption And Use Of The Last-In, First-Out (Lifo) Inventory Accounting Method, Mark F. Dalton

Vanderbilt Law Review

LIFO is a special statutory election available to taxpayers in lieu of the normal methods by which inventory identification and valuation is accomplished under section 471 of the Internal Revenue Code of 1954. The applicable Code section, section 472, and the regulations thereunder are highly technical provisions containing many pitfalls for the unsuspecting. Furthermore, a LIFO election for tax purposes affects a company's financial reports to shareholders and creditors, and raises business considerations that must not be overlooked. In addition, special interpretive problem areas and deficiencies present in the statute should give pause to taxpayers contemplating a switch to LIFO. …

Registration And Exemption From Registration Of Employee Compensation Plans Under The Federal Securities Laws, Dean L. Overman

Vanderbilt Law Review

This article is a basic summary of the rather complex federal securities laws concerning the registration of employee compensation plans. It centers around certain provisions of the Securities Act of 1933, the Securities and Exchange Act of 1934 and the Investment Company Act of 1940. The article initially discusses the necessity of registering the following four types of employee compensation plans: (1) pension, profit-sharing, stock bonus and similar plans; (2) employee stock purchase plans; (3) stock option plans; and (4) phantom stock plans. It then considers certain exemptions for these plans and the means available to employees to effect a …

Title Vii Seniority Remedies In A Time Of Economic Downturn, Donald R. Stacy

Vanderbilt Law Review

This article will attempt to clarify the application of rules against employment discrimination in a period of rising unemployment by first examining the nature of the seniority system and then explaining the theory and mechanism of the conventional remedy. Next a review of recent problems that have tested that remedy will be undertaken, with special attention devoted to the peculiar problems incident to layoffs. Lastly, the article will consider the means by which an employer can minimize the liability that may result from the discriminatory impact of seniority systems.

Municipal Bonds And The Federal Securities Laws: The Results Of Forty Years Of Indirect Regulation, Bruce N. Hawthorne

Vanderbilt Law Review

Recent abuses occurring in the municipal bond markets have threatened investor confidence and caused Congress to reevaluate its original decision to exempt these securities from the Securities Act of 1933 and the Securities Exchange Act of 1934. This Note will analyze in some depth the securities regulation aspects of the municipal securities markets. First, because an understanding of the unique nature of municipal securities and their markets is essential, a description will be made of the characteristics of municipal bonds and municipal bond purchasers, the participants in the municipal securities industry, and the new issue and trading markets for municipal …

Licensee Estoppel And Royalty Payments After Lear: Inconsistencies Within The Lower Courts Circumvent Lear Rationale, Henry P. Doggrell

Vanderbilt Law Review

Article I of the Constitution' expressly provides Congress with the authority to grant inventors exclusive rights to their discoveries for limited periods to promote the development of new ideas and innovations. By according the inventor-patentee the seventeen-year right either to exclude all others from making, using, or selling his invention or to contract for its limited use in the form of assignments or licenses, Congress has attempted to provide the initiative and incentive necessary to encourage the continued progress of science and the arts.' Moreover, statutory safeguards, which presume the validity of the patent until a contesting party establishes its …

Recent Cases, Richard C. Stark, Gerard T. Nebel, Craig V. Gabbert, Jr., Mary E. Mann

Vanderbilt Law Review

Recent Cases

Administrative Law--Federal Trade Commission Act--Restitution Held Improper in Section Five Cease and Desist Order

Richard C. Stark

Congress enacted section five'° of the Federal Trade Commission Act in 1914 to supplement" the antitrust provisions of the Sherman Act.'" The section declared unfair methods of competition illegal and placed the power to define and prohibit unfair methods in the hands of an independent regulatory commission, the FTC.' In conferring this power, Congress intended this body of experts to educate and guide the business community toward the goal of securing higher standards of business conduct.

Sherman Act, antitrust

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Constitutional …

Tax Problems Associated With The Incorporation Of A Partnership: Revenue Ruling 70-239h, Peter Olsen

Vanderbilt Law Review

The publication of Revenue Ruling 70-239 creates concern with respect to the possible impact of the very broad language of the Ruling in areas not specifically covered. This concern relates to the availability of an ordinary loss deduction under section 1244; various personal holding company and "subchapter S" problems; the impact on section 357(c) and section 1239; the effect on basis computations and the control requirement of section 351; and holding period considerations under section 1223. This article will attempt to examine Revenue Ruling 70-239 with a view to (1) evaluating the accuracy of the conclusion that all three corporation …

Enterprise Coverage Under The Fair Labor Standards Act: An Assessment Of The First Generation, Mack A. Player

Vanderbilt Law Review

Some thirteen years have passed since Congress created the concept of "enterprise coverage," a concept unique to social legislation. With the appearance of two recent Supreme Court decisions'and the passage of the Fair Labor Standards Act Amendments of 1974 most of the crucial coverage issues arising under the Fair Labor Standards Act have now been resolved. It is appropriate therefore to review the coverage provisions of this unique and complicated statute, with particular emphasis upon the aspects of "enterprise coverage."

Narcotics Offenders And The Internal Revenue Code: Sheathing The Section 6851 Sword, John M. Fite

Vanderbilt Law Review

This Note first will analyze the Internal Revenue Code provisions supporting the current crackdown by the IRS on suspected narcotics dealers. Secondly, it will examine the split in the federal circuit courts of appeal on the issues of the availability of Tax Court review of an assessment made pursuant to a section 6851 termination of a taxable year and the availability of equitable or statutory protections to prevent the seizure and sale of property belonging to the taxpayer. Lastly, a discussion of the propriety of such conduct by the IRS and its constitutionality in light of recent Supreme Court decisions …

The Argentine Foreign Investment Law And Its Andean Common Market Inspiration, Robert Y. Stebbings

Vanderbilt Journal of Transnational Law

Back in power after nearly twenty years of forced exile, the government of Juan Domingo Per6n fulfilled one of its most popularly acclaimed promises. Following a prolonged emotion-charged journey through the first Congress since the dissolution of that body in 1966, Argentina's new Foreign Investment Law (the "Law") became effective in December 1973. Law No. 20.577 regulates foreign direct investments, foreign credits and contracts involving payments abroad. Appearing almost simultaneously, Law No.20.575 requires registration with the government of all persons or entities who carry out any activity related to Argentina on behalf of foreign interests. The Foreign Investment Law was …

Recent Developments--Recent Decisions, Philip B. Barr, Jr., Michael Stukenberg

Vanderbilt Journal of Transnational Law

All nations recognize the enormous problem of marine pollution. The sources of marine pollution are definable, and there are methods by which these sources may be restricted. Virtually all mankind would prefer less pollution to more. Prevention, however, becomes less attractive in light of its costs, which assume both political and economic characteristics. Varying political and economic climates coupled with problems of sovereignty and national self-interest render agreement on the imposition of standards difficult. This Recent Development will chart past and present efforts at the preservation of the marine environment, consider the issues confronting the United Nations Third Conference on …

Special Project, Harold V. Morgan, Jr.

Vanderbilt Journal of Transnational Law

Of the institutions common to the European Communities, probably none has had greater impact on European integration than the Court of Justice. Throughout its case law, the Court has consistently emphasized the federal character of Community law and the secondary importance of national law of the Member States in areas covered by the establishing treaties. Especially in recent years as economic expansion has slowed and Member States have reverted to national rather than federal solutions to fiscal and political dilemmas, the Court remains the most forceful exponent and practitioner of the Common Market and European policy.

In response to the …

Information On The Court Of Justice Of The European Communities, J. A. Stoll

Vanderbilt Journal of Transnational Law

Hearings of the Court comprise a calendar of public hearings, drawn up on a weekly basis. It is, however, sometimes necessary subsequently to change dates. The Hearings of the Court in French may be ordered from the Registry of the Court free of charge. (This calendar, which is only a guide, is hardly of any use to anyone residing in the United States.)

Community Rules Of Competition, Charles A. Schliebs

Vanderbilt Journal of Transnational Law

Since the inception of the European Economic Community (EEC) in the 1957 Treaty of Rome, the Member States have recognized that activities to restrict competition and abuses of dominant positions in business could seriously hinder the free flow of goods and services and the creation of a common market within the Community. The Treaty of Rome provides that one activity of the Community shall be "the institution of a system ensuring that competition in the Common Market is not distorted." Articles 85 and 86 form the basis of this system. Article 85 contemplates control of cartels and concerted anticompetitive practices. …

Book Reviews, Joseph J. Norton, L. Harold Levinson

Vanderbilt Journal of Transnational Law

When considered as an installment in the unfolding of Friedmann's views, based on his earlier writings, the conclusion to the book under review is to be cherished. When considered, on the other hand, solely in context of the contributed chapters of the same volume, the conclusion does not emerge as Friedmann at his most forceful or persuasive. To find the best of Friedmann, we need only sample his prolific contributions to the law reviews, whether on the United States involvement in the Vietnam conflict, the judgment of the International Court in the South West Africa cases, the risks to humanity …

Limitation Of Liability Versus Direct Action Statutes, H. Barton Williams

Vanderbilt Journal of Transnational Law

The legislative history of the maritime limitation of liability statutes, both in the United States and in England, is uncomplicated. The original sources are available, and in several important opinions, the Supreme Court of the United States has set forth the history of the limitation statutes. Limitation of liability to the value of the owner's interest in the vessel and freight is a principle that springs solely from the general maritime law, and was not recognized either at common law or by the civil law.

It is difficult, if not impossible, to say when and where the idea of limitation …

Book Review, Harold J. Berman

Vanderbilt Journal of Transnational Law

The world has grown quite used to the fact that almost all Soviet export and import transactions are conducted by specialized state foreign trade organizations (ob'edineniia, "combines" or "associations") subordinate to a single state agency, the Soviet Ministry of Foreign Trade. The idea of such a "state monopoly" of foreign trade was originally put forth by Lenin and instituted by a decree of April 1918. It was intended primarily as a means of national economic defense: to protect the fledgling Soviet economy against anticipated imperialist exploitation. This was before the introduction of a centrally planned economy, and before even the …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

AMERICAN CORPORATIONS AND PERUVIAN POLITICS

By Charles T.Goodsell

Cambridge, Mass.: Harvard University Press, 1974. Pp.vi, 272. $14.00.

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BRITISH INDUSTRY AND EUROPEAN LAW

Edited by George W. Keeton and S.N. Frommel

South Hackensack, N.J.: Fred B. Rothman & Co., 1974. Pp. xiv, 206. $17.50.

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BUSINESS TRANSACTIONS WITH THE U.S.S.R.

Edited by Robert Starr

ABA Press, 1975. Pp. xvii, 545. $30.00.

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CANADIAN PERSPECTIVES ON INTERNATIONAL LAW AND ORGANIZATION Edited by R. St. J. Macdonald, Gerald L. Morris and Douglas M.Johnston

Toronto: University of Toronto Press, 1974. Pp. xx, 972.$27.50.

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DAS EUROPA DER SIEBZEHN: BILANZ UND PERSPEKTIVEN VON 25 …

International Straits, Global Communications, And The Evolving Law Of The Sea, W. George Grandison, Virginia J. Meyer

Vanderbilt Journal of Transnational Law

In the continuing law of the sea negotiations, strong support has developed among a majority of states for the extension of territorial seas to twelve miles. In the absence of other provisions, codification of this extension in a new law of the sea treaty will cause over 100 straits, including many of the most heavily traveled and strategically important, to be overlapped by the territorial sea. Because this will alter the pattern of international legal norms that has preserved freedom of navigation and overflight between ocean areas, considerable controversy has ensued over the question of what legal regime should govern …