Law Commons^™

Ethical And Value Issues In Population Limitation And Distribution In The United States, Martin P. Golding, Naomi Holtzman Golding

Vanderbilt Law Review

Any discussion of the ethical issues in population limitation and redistribution must begin by focusing upon the definition of "the problem," because how one views the problem, and its urgency and gravity, inevitably determines whether there is something that ought to be done and what it is that ought to be done.

As laymen in many of the areas that are relevant to the population problem, we are forced to rely on the expert knowledge of others. It would be highly salutary if there were a body of received opinion that could be used without hesitation. Unfortunately, on many crucial …

The Securities Investor Protection Act Of 1970: A New Federal Role In Investor Protection, Allan Gates

Vanderbilt Law Review

It has long been a matter of common knowledge that securities, investment involves an element of financial risk. In addition to the obvious hazards of injudicious investment, such as market decline and failure of the corporate venture, there is an appreciable risk of financial loss to the investor due to the potential insolvency of his broker-dealer. Until recently it had been the policy of the federal government to restrict its protection against this latter risk to measures designed to prevent broker-dealer insolvencies and, when an insolvency did occur, to an ordering of the priorities of customer claims in bankruptcy. In …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--False Conflicts--Federal Court Sitting in Diversity Action May Find "False Conflict" and Ignore Forum State's Choice of Law Rule When One State Has Clearly Predominant Interest

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Constitutional Law--Creditors' Rights--Civil Arrest Statutes that Promote Valid State Objectives and Provide Procedural Fairness Do Not Violate the Due Process Requirements of the Fourteenth Amendment

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Constitutional Law--Supremacy Clause--State Supreme Court Not Bound To Follow Federal District Court Decision on Constitutionality of Municipal Ordinance

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Securities Regulation--Franchises--Franchise Agreement that Permits Active Participation by the Franchisee in the Operation of the Business and Does Not Provide the Franchisor with Risk …

The Taxation Of Stock Dividends And The Tax Reform Act Of 1969--Foreboding Implications And Constitutional Uncertainties, John A. Pickens

Vanderbilt Law Review

Federal income taxation of stock dividends has followed a diverse course. Since the introduction of a federal income tax on all stock dividends in 1916, five major changes have occurred in this area. The most recent of these changes is embodied in section 421 of the Tax Reform Act of 1969, which amends section 305 of the Internal Revenue Code of 1954. When the 1969 Amendments are compared with the treatment of stock dividends under the Internal Revenue Code of 1954, they can be viewed, in conjunction with the regulations issued in 1969 under the 1954 Code, as initiating a …

Criminal Law And Population Control, Kent Greenawalt

Vanderbilt Law Review

Several important questions can be asked about criminal law and the population problem. One is how greatly overpopulation, with its contribution to poverty and urban crowding, is a cause of crime, and, obversely, the extent to which population control would be a form of crime control. Another question is how much population growth increases the range of behavior that is and should be covered by criminal sanctions.' Although these and other questions deserve attention, the purpose of this article is more modest-to consider possible changes in criminal law that could help ease the population problem.

Population Control: Multidimensional Task, Joseph J. Spengler

Vanderbilt Law Review

For several thousand years two demographic problems have periodically dogged man, population explosion and population implosion or, in less rhetorical terminology, too many people and too many people concentrated at points in space. The ineffectiveness of the solutions proposed for each of these problems has demonstrated that man's propensity for "progress" has continued to swamp his capacity to adapt to the changes he has produced. In sum, man remains confronted with the need to achieve balance between the costs of change and the costs of arresting change. Attempts at solving population problems are conditioned by the means believed available, by …

Book Reviews, Charles Galbreath, George F. Shinehouse, Jr., Norman A. Coplan

Vanderbilt Law Review

How Harmless is Harmless? The Riddle of Harmless Error.

By Roger J. Traynor Columbus: Ohio State University Press, 1970. Pp. ix, 117. $6.00

reviewer: Charles Galbreath

This book is based on the author's experience of more than 30 years on the California Supreme Court and his exhaustive research into the enigma of harmless error. The overriding message is simply that there is no clear explanation for the Supreme Court's preferring the Chapman test of "harmless beyond reasonable doubt" over the California test,which allows the judgment to stand if the particular error did not result in a "miscarriage of justice" in …

Book Notes: International Protection Of Human Rights, Alessandra Luini Del Russo

Vanderbilt Journal of Transnational Law

Until the Nuremburg Tribunal, international thought concerning human rights conformed to the idea that the guarantor of these rights was the national sovereign. With the birth of the United Nations and the Universal Declaration of Human Rights, the need for international guarantees of human rights within a state was formally recognized; that individuals have certain inalienable human rights is a proposition which few nations will dispute today. Furthermore, despite wide ideological differences, most states have found it possible to agree on the scope and consequences of man's fundamental freedoms.

The Lawyer And The Private Legal Process, L. Ray Patterson, Elliott E. Cheatham

Vanderbilt Law Review

Private law--particular rules created for and applied to particular individuals to govern their relationships with each other--is a marked characteristic of society. People in a nation of free enterprise with a developing, malleable economy must have the freedom and the power to shape their legal relations with one another through the use of rules of law suited to their goals. Most of this law--contracts, wills, and trusts--has only temporary effect. The terms are limited, and all of it is for a private, rather than a public purpose. The limited scope of private law, however, is not a good measure of …

Probable Cause To Arrest, Joseph G. Cook

Vanderbilt Law Review

Probable cause to arrest is an exceedingly difficult concept to objectify.' The traditional definition was stated in Beck v. Ohio as follows: [W]hether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Judicial opinions frequently manifest empathy with the policeman's plight in attempting to apply this vague standard. While the standard does not mean that the arresting officer must have evidence that would satisfy a fact finder of guilt beyond a reasonable …

Creditors' Ability To Reach Assets Under A General Power Of Appointment, Roy L. Steers, Jr.

Vanderbilt Law Review

Originally conceived prior to the enactment of the Statute of Uses as a means by which freehold legal interests in land might be devised, the power of appointment has maintained its prominent position in American society because of its utility in minimizing death taxes and injecting into dispositions of property an element of foresight otherwise unobtainable. Due to the immense popularity of powers of appointment as estate planning devices, statutory developments in the law of powers have been confined primarily to the tax field, with a resultant neglect of those areas of the law more tangentially related to powers of …

Extending Standing To Nonresidents--A Response To The Exclusionary Effects Of Zoning Fragmentation, Kent H. Mcmahan

Vanderbilt Law Review

This Note is premised on the belief that courts must recognize the standing of adversely affected nonresidents to contest local zoning ordinances in order to insure appropriate consideration of the issues raised by exclusionary zoning practices in the nation's suburbs. To support this premise, the Note surveys the current fragmented status of zoning, the problems attributable to this fragmentation, and then on judicial attempts to resolve the problems. In addition, the Note analyzes the judicial approach to zoning fragmentation, with special scrutiny given to the law of standing as an obstacle to efficacious judicial review. Against this background, the Note …

Declaratory Remedies And Constitutional Change, David L. Dickson

Vanderbilt Law Review

The Federal Declaratory Judgment Act' has now been law for more than 36 years. The debates over whether a purely declaratory judgment can be the product of a justiciable "controversy" in the constitutional sense have long since passed away, set to rest by the language of the Act itself and by the Supreme Court's decision that the Act was authorized by the judiciary article of the Constitution. The last edition of Professor Borchard's great work, Declaratory Judgments, was published in 1941,and the most recent article analyzing the constitutional significance of the Act was published shortly before Chief Justice Warren took …

Civil Liability For Causing Suicide: A Synthesis Of Law And Psychiatry, Victor E. Schwartz

Vanderbilt Law Review

If suicide is a deliberate, intentional act by an individual, how can one person be "civilly liable for causing the suicide of another"? The paradox suggested by this question has caused many courts to shy away from imposing civil liability for causing suicide.' In certain situations,however, a growing number of courts are permitting recovery. Since suicide is on the increase both in numerical terms and in rank as a cause of death in the United States it can be expected that even more tort claims will be brought by parties attempting to fix civil responsibility on someone other than their …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administrative Law--Judicial Review of SEC Decisions--No-Action Letter Under Commission's Proxy Rules Procedures Has Sufficient Finality and Formality to be Reviewable

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Creditors' Rights--Section 77 Railroad Reorganization--Federal Priority Under Section 191 Denied; Interline Balance Claims Granted Priority Under Equitable Six-Months Rule

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Criminal Procedure --Breach of the Peace--State Peace Bond Statute Establishes Criminal Proceedings and Must Satisfy Requirements of Due Process and Equal Protection Clauses

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Criminal Procedure--Presumption of Innocence--Cautionary Instruction to Jury that Presumption of Innocence is Not Intended To Aid the Guilty To Escape is Not Misleading or Erroneous

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Landlord and Tenant Law--Warranty of Habitability Implied by Law …

Admiralty--Choice Of Law--Ship Owner With Substantial Business Contacts In The United States Is An Employer Within Meaning Of Jones Act, Journal Staff

Vanderbilt Journal of Transnational Law

Plaintiff, a Greek seaman, sought relief in federal court under the Jones Act for injuries suffered aboard ship while docked in a United States seaport. Defendants, corporations, controlled by a permanent resident alien of the United States, contended the Court was without jurisdiction since they were not employers within the meaning of the Jones Act and because the contract of employment with plaintiff provided for the application of Greek law. The District Court found for the plaintiff. The Fifth Circuit affirmed.

On certiorari to the United States Supreme Court, held, affirmed. A shipowner with substantial business contacts in the United …

Workmen's Compensation At Sea, Charles D. Evens

Vanderbilt Journal of Transnational Law

At the present time there are three possible remedies available to seamen who are injured in the course of their employment. In order to maintain any of these actions, the injured party must of course qualify as a seaman. The traditional tests used to determine whether a maritime worker is a seaman are as follows: 1) the vessel must be in navigation, 2) the worker must have a more or less permanent connection with the vessel, and 3) the worker must be aboard the vessel primarily to aid in navigation. These standards have been somewhat modified by Offshore Company v. …

Internationally Uniform Probate Law--A Method For Improving Administration Of Multinational Estates, John G. Webb, Iii

Vanderbilt Journal of Transnational Law

The need to coordinate succession laws of different nations was recognized as early as 1893 at the first Hague Conference where attempts were begun to coordinate the laws of succession on death through multilateral conventions. Notwithstanding so early an effort, however, the administration of multinational estates has remained plagued by diversity of national laws governing succession on death. The resulting confusion and inefficiency of administration has often frustrated the testamentary intentions of decedents of many nationalities. While no viable uniformity has been attained among nations, the need for consistency increases. Half a million United States civilian citizens live abroad, and …

Recent Cases, Journal Staff

Vanderbilt Journal of Transnational Law

Plaintiff, a West German foundation, sued to enjoin infringement of United States trademarks by defendant, an East German "peoples-owned enterprise." The original Carl Zeiss Stiftung was created at Jena in 1889 with the required approval of the Duchy of Saxe-Weimar-Eisenach for the purpose of owning and operating an optical business for profit. In 1945, before Jena became part of the Soviet Zone, United States military authorities evacuated all members of the Zeiss Board of Management, as well as key personnel, to Heidenheim, Wuerttemberg, in the United States zone. In 1948, the Soviet Union expropriated all Zeiss assets in Jena, including …

Maritime Jurisdiction Over Fishery Resources, Gilbert T. Davis

Vanderbilt Journal of Transnational Law

Economic necessity and recent developments in marine technology have caused man to begin his move into the sea on a grand scale, occupying and exploiting it for recreation, minerals, food, waste disposal, and possible living space. These new technological advances and the increased need for the traditional fishery resources have precipitated the interests of nations in expanding their exclusive jurisdictions further into an ocean space where it had been traditionally free for all to use. Though this move for exclusive jurisdiction is motivated by the uniform desire of all nations to more efficiently utilize and conserve the resources and to …

Coastal Zoning, James H. Ewalt, Robert H. Deaderick

Vanderbilt Journal of Transnational Law

In today's atmosphere of environmental awareness, protection of the coastal wetlands seems appropriate for many reasons. The wetlands include much of the most aesthetically pleasing areas in the United States, while also being a source of recreation and enjoyment. Man has long had an economic interest in the valuable natural resources, minerals and fish which the wetlands yield. The result is a conglomerate of conflicting demands upon the wetlands. The situation begs for definition and control of these interests so that the full potential of the coast can be realized.

Zoning has often been suggested as a means to protect …

Representation For The Poor In State Rulemaking, Allan Ashman

Vanderbilt Law Review

After a violent summer of urban unrest and civil disorder, President Johnson established the National Advisory Commission on Civil Disorders in 1967 to find out what happened in our nation's cities, why it happened, and to suggest ways to prevent it from occurring again. One of the findings of the Commission was that from the vantage point of the poor ghetto resident, local government was distant and unconcerned.For the poor person, particularly the poor black ghetto resident, the possibility for effective change either in his personal life style or in the political system appeared remote.' Reflecting upon this gulf between …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Monopolies--Merger of Firm with a Potential Competitor that May Enter the Market by Toe--Hold Acquisition Violates Section 7 of Clayton Act

Antitrust--Private Antitrust Actions Against Air Polluters--Commercial Relationship Between Litigants Not Necessary to Maintain an Action for Violation of Section 1 of Sherman Act

Constitutional Law--Establishment Clause--Tax Exemption for Property Used Solely for Religious Purposes Held Constitutional

Constitutional Law--Voting--Durational Residency Requirement Violates Equal Protection Clause

Creditors' Rights-Attachment-Prejudgment Attachment of Chattels Without Prior Notice and Hearing Violates Due Process Clause of Fourteenth Amendment

Criminal Procedure--Probation Revocation-Revocation of Probation Without a Limited Hearing Violates Due Process Clause of the Fourteenth Amendment

Criminal …

Law Reform And Legal Education, Robert E. Keeton

Vanderbilt Law Review

Painfully slow as the mills of law reform grind, they have moved faster in our generation than in most. This appraisal may seem overly generous to our own day when we reflect on the difficulties and delays encountered in achieving some particular reform. But if we measure progress in another way--comparing what has happened in the last dozen years with what happened in other time periods of similar length--differences emerge. The most easily documented difference concerns the performance of appellate courts of last resort in reforming private law by candidly overruling precedents. In the last dozen years, there have been …

The Right To Be A Recalcitrant Union Member, Neil F. Castaldo

Vanderbilt Law Review

In 1954, the United States Supreme Court considered the problem of union discipline in the case of Radio Officers' Union v. NLRB. The Court clearly stated that the policy of the National Labor Relations Board (NLRB) insures the right of each employee who chooses to join a union to be a "good, bad, or indifferent" member. Although the validity of this phrase seems to be generally accepted, it has never been enforced as an affirmative right. The purpose of this Note is to analyze the embryonic right to be a recalcitrant union member. Since most studies have examined this area …

Boys Markets And National Labor Policy, Stephen C. Vladeck

Vanderbilt Law Review

In 1962, the Supreme Court held in Sinclair Refining Co. v.Atkinson' that section 4 of the Norris-LaGuardia Act barred federal courts from enjoining union violations of no-strike clauses in collective bargaining agreements. Since Sinclair, violations of this type have been the subject of considerable discussion, but have resulted in little litigation. The number of man days lost as a result of no-strike clause violations is minimal and the frequency of these violations is so small that it is difficult to imagine that they have any great influence on the course of industrial relations. Nevertheless, lovers of symmetry have argued that …

"Fair Market Value," "Just Compensation," And The Constitution: A Critical View, W. Harold Bigham

Vanderbilt Law Review

It has become almost an article of faith that "fair market value"constitutes the only fair and workable measure of damages for a landowner whose real property has been taken for public use. The courts apply it woodenly;' the magic words are solemnly intoned to jurors, commissioners, and arbitrators. Even the learned scholars in the field give it at least implicit recognition. Moreover, it continues to flourish despite widespread public dissatisfaction with both the substantive test for damages and the procedures through which the land is obtained. The taking of private property for the federal interstate highway and urban renewal programs, …

Neither Pollyanna Nor Cassandra, But Positive Commitment To Human Values, Jefferson B. Fordham

Vanderbilt Law Review

To me the positive message of the paper is that we should view our condition with a sense of history and a sense of humor and, in that perspective, dwell more upon the good that we perceive in ourselves, our institutions, and our performance. That is fine, but it does not tell us enough. We know that in all ages man has been in no wise more conspicuous than in his inhumanity to man. The record of torture and slaughter during the Crusades and the Inquisition, movements associated with religion, darkens the pages of history.What must be noted is that …

The Future Of America And The Role Of Law, Ray Forrester

Vanderbilt Law Review

On August 22, 1970, Dean Ray Forrester of the Cornell Law School presented this paper to the Southeastern Conference of the Association of American Law Schools and the American Association of Law Libraries meeting in Nashville, Tennessee. Because the question of negativism in the academic community seldom has been raised by a highly respected legal educator, the Vanderbilt Law Review felt that these remarks were particularly significant. To test the reaction of other prominent legal educators to Dean Forrester's position, the Vanderbilt Law Review solicited the comments of the deans of various law schools. This paper and the comments that …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Personal Injury--Intent to Injure Is Not a Prerequisite to Recovery for Police Abuse Under Section 1983

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Constitutional Law--Abortion--Statute Prohibiting Abortion of Unquickened Fetus Violates Mother's Constitutional Right of Privacy

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Constitutional Law--Obscenity--State Statute Allowing Injunction Against Dissemination of Allegedly Obscene Material Prior to Adversary Hearing Not Violative of First Amendment

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Constitutional Law--Right of Privacy--State Statute Requiring Disclosure of All Substantial Financial Interests of Public Officials is Overbroad and an Unconstitutional Invasion of Privacy

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Constitutional Law--Sixth Amendment--Admission of Prior Inconsistent Statements as Substantive Evidence Does Not Violate Right of Confrontation

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Criminal Procedure--Search and Seizure--Warrantless Search of …