Law Commons^™

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Procedure--Class Actions--Order Dismissing Class Action that Leaves Plaintiff To Litigate a Small Monetary Claim Is Not a Final Appealable Order Under 28 U.S.C. § 1291

Plaintiff consumer, claiming to represent one and one-half million purchasers of defendants" products, filed a class action under section 4 of the Clayton Act, seeking treble damages, costs, and attorney's fees from defendants for alleged antitrust violations. Defendants successfully moved for a stay of proceedings pending the district court's determination of whether the case could be maintained as a class action.The court found the class unmanageable and, in accordance with Rule 23(c)(1) of the …

Special Project - Nashville Model Cities: A Case Study, Richard W. Creswell, Alan Gates, Paul M. Kurtz, Paul R. Regendorf, Samuel W. Bartholomew, Jr., Richard K. Greenstein

Vanderbilt Law Review

The future of the Model Cities program in Nashville is difficult to predict. As of this writing, the program is approaching the end of the first of five action years. The suit filed by the CCC in April 1971, is,more than a year later, still pending. It is, of course, possible that the program may eventually prove successful, but such a result is unlikely. Even if the CCC is replaced as the official citizen participation structure for the program, the ideological constituency from which the group derives its strength will remain. Furthermore, as the CDA continues to build an ad …

Standing, Justiciability, And All That: A Behavioral Analysis, Robert A. Sedler

Vanderbilt Law Review

Whenever suit is brought in a federal court to challenge the constitutionality or validity of governmental action, the initial response of the government is, almost invariably, "The Court should not hear this case." Several arguments are frequently used. If a state law or action of a state official is challenged, the state will argue that the suit should have been brought in state court' and that the federal court should"abstain" pending a state court determination of state law. When administrative action is challenged, the principal defenses are failure to exhaust administrative remedies and nonreviewability of the action. If the plaintiff …

Evidence Of Producer's Due Care In A Products Liability Action, Robert A. Bernstein

Vanderbilt Law Review

In a products liability case, evidence of defendant's due care in the manufacturing or processing operation can be a potent and sometimes critical factor in the decision of a judge or jury.' The question remains,however, whether such evidence is properly admissible under contemporary versions of the implied warranty and strict liability theories that have fashioned the recent revolution in consumer product law. The leading chronicler of the revolution, Dean Prosser, has noted the practical importance of the issue and has concluded, apparently without reservation, that in the ordinary case evidence of the defendant's due care is immaterial. The reasoning is …

Congressional Power To Define The Presidential Pocket Veto Power, Arthur S. Miller

Vanderbilt Law Review

Two recent exercises of the "pocket veto" by President Nixon have evoked controversy over the constitutional distribution of power and responsibility for negativing congressional actions! On December 14,1970, Congress sent to the President Senate Bill 3418, the Family Practice of Medicine Act. The bill had originated in the Senate, which recessed at the close of business on December 22, 1970, until 12:00 o'clock noon on December 28. Before recessing, unanimous consent had been given the Secretary of the Senate to receive messages from the President during this period. At about the same time House of Representatives Bill 3571, a private …

Recent Development, Law Review Staff

Vanderbilt Law Review

This Comment will explore the origin, evolution, and refinement of the common-law classifications, with particular focus upon recent decisions abrogating these distinctions in favor of a broader standard of ordinary care under the circumstances.

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The problem of defining a landowner's' responsibility toward persons who come upon his premises has been the subject of longstanding controversy. While some commentators have argued that the limited responsibility placed by the common law on landowners does not comport with modern principles of negligence liability proponents of the common-law standards have urged that the common-law scheme of entrant classes--trespasser, licensee, invitee--provides a workable approach …

Congressional Amnesty For War Resisters: Policy Considerations And Constitutional Problems, Louis Lusky

Vanderbilt Law Review

The protean term "amnesty" is not mentioned in the Constitution,but it has been used elsewhere in many different senses: clemency for convicted criminals, clemency for offenders not yet apprehended or prosecuted, and immunity from punishment for acts not yet committed that ordinarily would be criminal. The term has been employed whether the offenders were listed by name or specified by general classification,and it has sometimes been used as a synonym for the constitutional term"pardon." On occasion the substance of amnesty has been granted without use of the term at all. In this article, the term "amnesty" is used in its …

Recent Developments, Law Review Staff

Vanderbilt Law Review

Confession of judgment procedures' have seldom received unrestricted legislative approval by the states--the vast majority of jurisdictions have enacted legislation either to eliminate the practice entirely or to limit severely its use. Unrestricted employment of the procedure in consumer transactions is prevalent only in the states of Pennsylvania, Illinois and Ohio, which account for a preponderance of the confessed judgments in the United States today. Although the constitutional validity of cognovit notes has been questioned on numerous occasions, the Supreme Court had never addressed this issue until its recent decisions upholding the use of these devices in D.H. Overmyer Co. …

Recent Cases, Law Review Staff

Vanderbilt Law Review

RECENT CASES

Antitrust--Sham Exception--Allegations of Purposeful and Concerted Use of Adjudicatory Processes to Harass and Deter Parties From Having Free Access to These Processes Constitute a Cause of Action Under Antitrust Laws

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Criminal Procedure--Confessions--Determination of Confession's Voluntariness by Preponderance of the Evidence Is Not Violative of Fifth Amendment Prohibition Against Self-Incrimination

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Landlord and Tenant--Forcible Entry and Detainer Statute--Provisions for Immediate Trial and Limitation of Triable Issues Not Violative of Due Process or Equal-Protection Clauses

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Securities Regulation-Section 16(b) of Securities Exchange Act of 1934--Insider May Sell Enough Stock To Bring His Holdings Below Ten Percent and Within Six …

Book Reviews, Garrett Power, Joseph M. Boyd, Jr.

Vanderbilt Law Review

The Environmental Law Reporter in the Classroom

The Environmental Law Reporter' is a cumulative monthly loose-leaf service devoted chiefly to the environmental issues confronting private attorneys, governmental officials, and teachers. During the fall semester of 1971, the Reporter was employed as a text for the University of Maryland's basic course in environmental law. This review will attempt to measure its potential as a teaching tool.

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Guidebook for Litigation

The common law is still the most useful and flexible weapon in the arsenal of those who care enough about the quality of our environment to do something about it. This …

Citation In Lieu Of Arrest: The New California Law, Floyd F. Feeney

Vanderbilt Law Review

Sixty years ago, before the traffic infraction became a common occurrence, police departments found it necessary to make physical arrests in the case of each traffic violation. As the number of violations mounted, however, the arrest procedure proved to be too cumbersome and demanding. This led to the invention of a new procedure, the citation of promise to appear. The new system proved to be both convenient and practical and in short order it virtually replaced the old arrest procedure. Surprisingly, however, the invention of the new procedure did not lead to a rethinking of the need to arrest and …

The Impact Of The Tax Reform Act Of 1969 On The Supply Of Adequate Housing, Kenneth J. Guido, Jr.

Vanderbilt Law Review

Hidden by the storm surrounding the more controversial changes in the Tax Reform Act of 1969 are subtle alterations in the tax structure that may significantly affect the rate and nature of real estate development. The Tax Reform Act amended provisions of the Internal Revenue Code directly applicable to real estate investments,' purposefully redesigning them in the hope of stimulating the construction and rehabilitation of rental housing, particularly low-income housing. The changes in the basic tax structure relative to real estate investments are an attempt to continue a national policy established in 1949, that of providing a "decent home and …

The Tennessee Water Quality Control Act Of 1971: A Significant New Environmental Statute, Julian C. Juergensmeyer

Vanderbilt Law Review

Tennessee's new Water Quality Control Act' is one of the most significant pieces of environmental legislation to be produced in recent years. It is destined not only to revamp water pollution control in Tennessee but also to serve as a model for legislation in other states. The Act and commentary written by its drafter, Professor Frank E. Maloney, are printed following this article. Consequently, no attempt will be made to summarize the entire Act or to provide a detailed guide for its use. The purpose of this introductory article is to examine the salient, often innovative, features of the Act …

The Tennessee Water Quality Control Act Of 1971, Frank E. Maloney

Vanderbilt Law Review

The text of the Act and commentary that follows is the product of a larger study undertaken by Professor Maloney at the request of the 87th General Assembly of the State of Tennessee. This study was the subject of a seminar on environmental protection at the Vanderbilt University School of Law. Four of the participating students--Elbert E. Edwards, III, Thomas H. Graham, Robert D. McCutcheon, and Paul L. Sloan--drafted the proposed statute and commentary under Professor Maloney's supervision with the research assistance of the other members of the class. For many sections of the statute, the drafters drew heavily from …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Topics Discussed in Recent Cases:

Administrative Law--Freedom of Information Act--Unclassified Documents Physically Connected with Classified Documents May Not Be Withheld Under the National Security and Foreign Affairs Secrets Exemption

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Antitrust--Treble Damage Class Actions--Privity with Defendant Required To Maintain Suit

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Constitutional Law--Equal Protection-State Probate Code Discriminating in Favor of Males Violates Equal Protection Clause

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Constitutional Law--Federal Preemption--Atomic Energy Act Requires Exclusive Federal Regulation of Radioactive Discharges from Nuclear Power Plants

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Corporations -Shareholder Suits -Shareholder May Inspect Corporate Records Only for Proper Purpose Ger-mane to his Economic Interest As Shareholder, Not Merely To Further his Own Social and …

Mr. Wade And Wade Torts, James H. Wildman

Vanderbilt Law Review

We, his students, have never called him "Mr. Wade;" nor have we called him "Professor Wade." These words do not sound even faintly familiar. Yet Mr. Wade can rightfully claim major responsibility for the causal connection between Vanderbilt law student and Vanderbilt lawyer. Indeed, in this connection, the sine qua non rule applies to Mr. Wade. To the older of us, much of the detail of his visage and style have doubtless been lost--the jabbing hand, the lanky, angular figure, the Abe Lincoln face, the outstretched arms with fingers intertwined, the hands thrust deeply into pockets jingling change, and the …

Recent Developments, Law Review Staff

Vanderbilt Law Review

The doctrine of sovereign immunity' prohibits the courts from assuming jurisdiction of a foreign sovereign without that sovereign's voluntary acquiescence, and the act of state doctrine prohibits the courts from assuming jurisdiction to judge the acts of a foreign sovereign performed within the geographical borders of its own country. In the United States, a judicial determination of self-restraint under either of these two doctrines effectively operates to bar further litigation on complaints brought against foreign governments or their instrumentalities and on complaints brought against private individuals, but based on the acts of their sovereigns. Despite the common policy foundations of …

John W. Wade: Gentle Scholar, Pilot Lawyer, Roger J. Traynor

Vanderbilt Law Review

His contributions to the work of the American Law Institute, his career as the dean of a first-rate law school, and his essays on restitution,torts, and conflict of laws would be more than enough to place John Wade in the first rank of American lawyers. The very constructiveness of his work makes him pre-emininently a modern teacher and lawyer.

International Transactions In A Cold Climate; Or Whatever Became Of The Law Merchant?, Henry Harfield

Vanderbilt Journal of Transnational Law

International trade can be conducted only under the rule of law. There is no rule of law that governs international trade. These statements form a paradox, and the beginning of two possible syllogisms. One construction is that since there is no rule of law governing international trade, and international trade is dependent upon the rule of law, international trade must perish. The other and more hopeful construction is that international trade does exist, it must exist, and because it is dependent upon the rule of law, a rule of law must be devised.

I believe in the latter formulation, but …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

The purpose of the Case Digest is to identify and summarize for the reader those cases that have less significance than those which merit an in-depth analysis. Included in the digest are cases that apply established legal principles without necessarily introducing new ones. This initial digest includes cases reported from January through September,1971. Henceforth, the Winter issue will include cases reported from April through September, and the Spring issue will contain cases reported from October through March. The cases are grouped into topical categories, and references are given for further research. It is hoped that attorneys, judges, teachers and students …

Books Received, Journal Staff

Vanderbilt Journal of Transnational Law

Books Received

NULLITY AND REVISION: THE REVIEW AND ENFORCEMENT OF INTERNATIONAL JUDGMENTS AND AWARDS

By W. Michael Reisman

New Haven: Yale University Press, 1971. Pp. vii, 900. $25.00.

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THE ENDLESS CRISIS

Edited by Frangois Duchne

New York: Simon and Schuster, 1971. Pp. 310. $2.75.

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INTERNATIONAL LAW, NATIONAL TRIBUNALS AND THE RIGHTS OF ALIENS By Grant Dawson and Ivan L. Head

Syracuse: Syracuse University Press, 1971. Pp. vii, 344. $11.75.

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THE LIMITED ELITE: POLITICS AND GOVERNMENT IN TWO INDIAN CITIES

By Donald B. Rosenthal

Chicago: University of Chicago Press, 1970. Pp.vii, 360. $12.75.

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INTERNATIONAL LAW: THE SUBSTANCE. …

The Question Of Compensation: A Third World Perspective, Norman Girvan

Vanderbilt Journal of Transnational Law

The question of compensation for expropriated property takes us, in many respects, to the heart of the relationship between the developed capitalist countries and the Third World. On no other subject is the gulf between the two--in interests, perspectives and position--potentially so great, nor so pregnant with passionate and violent conflict. The rules of international law, the principles of international economics and the science of international politics can help clarify the issues involved and provide arguments for the claims of contending parties. But they cannot yield solutions which are "neutral" or are free of value judgments and philosophical assumptions which …

International Law And Conflict Resolution: Palestinian Claims And The Arab States, J. L. Taulbee, David P. Forsythe

Vanderbilt Journal of Transnational Law

Over the last few years there has been a revival of interest in international law as a mechanism for conflict resolution. These same years have seen a demonstration of the undeveloped state of international law, particularly concerning intrastate conflicts. The wide disagreement about questions of fact, legal consequence, and world order implications of internal war is a telling commentary on the current problems of applying legal standards to such conflicts. A major part of the disagreement can be explained in terms of the specific problems relating to fact determination and authoritative interpretation engendered by the nature of the environment in …

The Bases And Range Of Federal Maritime Law: Indicia Of Maritime Competence, Arthur R. Louv

Vanderbilt Journal of Transnational Law

The Constitution and federal statutes of the United States establish three forms of jurisdiction for the federal judiciary--diversity, federal question, and admiralty and maritime. This scheme of multi-based jurisdiction necessarily raises a fundamental problem in our federal judicial system: the interrelation of these grants of power.

Mr. Justice Story, the author of the opinion in Swift v. Tyson, viewed the grants of diversity, federal question, and maritime competence as complementary, and utilized this concept in an attempt to create a uniform body of federal commercial common law. In "Erie Railroad Company v. Tompkins", however, the Supreme Court rejected the principle …

Book Reviews, Max Rheinstein, Eugene V. Rostow, William O. Thweatt

Vanderbilt Journal of Transnational Law

JUDICIAL REVIEW IN THE CONTEMPORARY WORLD

By Mauro Cappelletti

Indianapolis: Bobbs Merrill, 1971. Pp. xi, 117. $8.50 ($4.50 student edition).

reviewer: Max Rheinstein

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THE PRICE OF INTERNATIONAL JUSTICE

Philip C. Jessup

New York: Columbia University Press, 1971. Pp. ix, 82. $5.95.

reviewer: Eugene V. Rostow

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THREE WORLDS OF DEVELOPMENT: THE THEORY AND PRACTICE OF INTERNATIONAL STRATIFICATION

By Irving Louis Horowitz

New York: Oxford University Press, 1972. Pp. xxx, 556. $15.00 (Paperback, $3.50).

reviewer: William O. Thweatt

Direct Investment In France: Law And Taxes, Xavier T. De Marsac, Robert S. Rich

Vanderbilt Journal of Transnational Law

Direct investment in France by non-French persons is subject to governmental regulations. The primary purpose of these regulations is to enable the French Ministry of Finance, in liaison with other authorities, to examine the merits of any proposed foreign investment in France. Most foreign direct investment must be approved in advance by the Ministry in order to protect the French economy from foreign domination and to encourage increased employment and improved technology. To these ends, the regulations confer on the Ministry the right to refuse its consent to most proposed investments. In carrying out its responsibilities, the Ministry's policy in …

Statutory Reform In Claims Against Foreign States: The Belman-Lowenfeld Proposal, Richard K.V. Hines, Kurt A. Strasser

Vanderbilt Journal of Transnational Law

The executive branch of the United States Government has indicated recently that it is reexamining its dominant judicatory role in the field of sovereign immunity of foreign states. Studies undertaken in 1966 by the State Department resulted in the preparation of draft legislation on sovereign immunity that the Department has been studying for possible presentation to Congress. The proposed Belman-Lowenfeld legislation would completely remove the State Department from any role in deciding sovereign immunity cases. The proposal itself would subject foreign states to the jurisdiction of United States federal courts for activities carried on or having a direct effect in …

Editor's Foreword, Harold G. Maier

Vanderbilt Journal of Transnational Law

This issue of the Vanderbilt Journal of Transnational Law includes two presentations to the 1972 Symposium of the Vanderbilt International Law Society and Regional Meeting of the American Society of International Law. First, Henry Harfield of the New York Bar discusses the relevance of international and transnational law to international commercial transactions, with a special emphasis on the usefulness of the Uniform Customs and Practices for Commercial Documentary Credits. Secondly, Sheldon S. Cohen, a member of the District of Columbia Bar and past Commissioner of Internal Revenue, focuses on the United States tax implications of changing currency values. While four …

John W. Wade: Friendly Critic And Sensitive Scholar, Wex S. Malone

Vanderbilt Law Review

The teacher could boast only three or four years of maturity over his students; hence, he was vulnerable and was often at-tacked with considerable spirit. From the beginning John Wade faced me with the kind of challenge that can be both the delight and the despair of a beginning law teacher. His characteristic mode of attack by way of imperturbable but relentless prodding will be recalled with admiring pleasure by more than a generation of his own law students. This role of the friendly, reflective skeptic, which is so fundamental a part of the intellectual make-up of John Wade, has …

Some Implications Of The Constitutional Privilege To Defame, Robert E. Keeton

Vanderbilt Law Review

In this issue of the Vanderbilt Law Review we honor an extraordinary scholar, teacher, and Dean. It is a happy circumstance that the editors have offered us this opportunity at a time when we can confidently predict that Dean Wade will continue to serve us with great distinction in years ahead. The present article concerns some pending problems in the law of defamation that have already attracted Dean Wade's active interest. This seems a particularly fitting subject for inclusion in a symposium celebrating not only his distinguished past service but also a commencement incident to his release from decanal responsibility.