Law Commons^™

State Taxation Of Interstate Business-Looking Toward Federal-State Cooperation, Joseph W. Mathews

Vanderbilt Law Review

This note will review the historical setting of state taxation of interstate commerce and examine the problems created by the diversity of state tax laws. It will further discuss the two different approaches toward solving these problems, investigate the constitutional issues involved in the proposed solutions, analyze their inadequacy, and recommend a federal-state cooperative approach.

Law Students And A Constructive Approach To The Future Of America, John W. Wade

Vanderbilt Law Review

In years past, many intellectuals adhered to a theory of laissez faire. They believed that the way to maintain our economic system in good health was to keep our government and laws from interfering with its natural working. In those days, judges did not make law; they discovered through legal reasoning what the law was and what it had always been. In both fields the theory fell into decline and disfavor. As Justice Cardozo put it, the concept of laissez faire in law went the way of laissez faire in economics. Another theory, of more ancient origin, is that of …

On Dissent, Violence, And The Intellectual, Page Keeton

Vanderbilt Law Review

If I have properly assessed the meaning of Dean Forrester's comments, he stated that: (1) America is now in the midst of an attempted revolution, an attempt to create a new society by force and violence; (2) war, race relations, poverty, environment, and the other festers in our society, while great problems, are not the real causes of the discontent; (3) the attempted revolution is the product of a generation of university teaching and writing which has created the intellectual atmosphere and the state of mind that sustain the conflict. I respectfully dissent while recognizing at the same time the …

Legal Education: A More Optimistic View, Robert B. Mckay

Vanderbilt Law Review

While few would disagree with Dean Forrester's statement that"America is now in the midst of an attempted revolution," several questions naturally arise. Dean Forrester does not identify the nature and goals of the "attempted revolution," but the inference is that he disapproves. One wonders whether he objects to change because it challenges the status quo; whether he disagrees with the direction of the proposed change; or whether he opposes the method, particularly the abruptness, with which change is being forced upon us. Each possibility merits response.

Change Versus the Status Quo. It would be unfair to Dean Forrester to suggest …

Book Notes, Law Review Staff

Vanderbilt Law Review

CONGRESS AND THE PUBLIC TRUST Report of the Association of the Bar of the City of New York Special Committee on Congressional Ethics New York: Atheneum, 1970. Pp. xxvii, 351. $8.95.

How TO TALK BACK TO YOUR TELEVISION SET By Nicholas Johnson Boston: Atlantic Monthly Press, 1970. Pp. ix, 228. $5.75.

THE QUALITY OF THE URBAN ENVIRONMENT Edited by Harvey S.Perloff Washington: Resources for the Future, Inc., 1969. Pp. xiii, 332.$6.50.

WELFARE MEDICAL CARE: AN EXPERIMENT By Charles H. Goodrich, Margaret C. Olendzki, and George G. Reader Cambridge: Harvard University Press, 1970. Pp. viii, 343. $7.00.

Logic Vs. Value Judgment In Legal And Ethical Thought, Thomas R. Mccoy

Vanderbilt Law Review

Drugs. Abortion. Race. War. Dissent. Civil disobedience and disruption. Air, water, noise pollution. The standard fare with which we are assaulted by the daily news. American society is swamped in a sea of questions that appear to defy answer. It is the thesis of this paper that the unanswerability of many social questions persists because of the inadequacy of the thought patterns through which they are approached. These thought patterns fail because they reflect the structure of our language rather than the structure of reality. This thesis is not new; it has been set forth several times in different forms …

Mental And Nervous Injury In Workmen's Compensation, Arthur Larson

Vanderbilt Law Review

"[H]ow could it be real when. . .it was purely mental?" This poignant judicial cry out of the past, which I occasionally quote to put down my psychiatrist friends, contains the clue to almost all of the trouble that has attended the development of workmen's compensation law related to mental and nervous injuries. This equation of "mental" with "unreal," or imaginary, or phoney, is so ingrained that it has achieved a firm place in our idiomatic language. Who has not at some time, in dismissing a physical complaint of some suffering friend or relative, airily waved the complaint aside by …

The Collateral Consequences Of A Criminal Conviction, Thomas R. Mccoy, Walter Matthews Grant, John Lecornu, John Andrew Pickens, Dean Hill Rivkin, C. Roger Vinson

Vanderbilt Law Review

As a general matter [civil disability law] has simply not been rationally designed to accommodate the varied interests of society and the individual convicted person. There has been little effort to evaluate the whole system of disabilities and disqualifications that has grown up. ...As a result, convicted persons are generally subjected to numerous disabilities and disqualifications which have little relation to the crime committed, the person committing it or,consequently, the protection of society. They are often harsh out of all proportion to the crime committed.

Special Project

Vanderbilt Law Review

No abstract provided.

An Evaluation Of Changes In The Medical Standard Of Care, John K. Johnson, Jr.

Vanderbilt Law Review

When a layman is charged with negligence, his conduct is compared with the conduct to be expected from that familiar fictional person-the reasonable and prudent man under the same or similar circumstances.' The defendant's special knowledge or skill is only one of the circumstances to be considered; another is the customary practice of those similarly situated. In the field of medical negligence, however, the conduct of other physicians becomes extremely important. The standard of care to which doctors will be held is determined to a large extent by fellow practitioners.

Failure To Inform As Medical Malpractice, Stephen L. Edwards

Vanderbilt Law Review

It has long been recognized in American law that a proper patient-physician relationship is founded upon the technical competency of the physician. Before the advent of cases dealing with informed consent, a patient who had given his consent to proposed treatment could recover for injuries only when the physician had acted incompetently in the administration of the treatment. Within the past fifteen years, however, the courts have recognized that the maintenance of a proper patient-physician relationship depends not only upon the technical competency of the physician, but also upon the presence of effective communication between the two parties. Therefore, recent …

Private Annuities: Revenue Ruling 69-74-Its Significance,Effect,' And Validity, Robert A. Sams

Vanderbilt Law Review

The private or noncommercial annuity may be defined as the transfer of property from an annuitant-transfer or to a person or organization (referred to as the transferee or obligor) that has not"from time to time"' issued annuity contracts, in exchange for the transferee's unsecured promise to make periodic payments of money for a fixed time or for the life of the annuitant-transferor. Prior to the issuance of Revenue Ruling 69-74,3 both the Internal Revenue Service and the courts had given the private annuity transaction favorable income tax treatment, making it an extremely useful estate planning device. In J. Darsie Lloyd, …

The Williams Amendments: An Evaluation Of The Early Returns, M. Douglas Dunn

Vanderbilt Law Review

The purpose of this note is to examine the judicial interpretation of the Williams Amendments to the Securities Exchange Act. The background of the legislation is outlined to direct attention to its general purpose and to isolate its intended beneficiaries.' A discussion of the actual amendments will provide the informational base necessary for consideration of the recent cases. The critical discussion of the first few cases interpreting the amendments provides the foundation for a suggested approach in applying the available remedies to violators of the Williams Amendments.

Statutes Of Limitations: Their Selection And Application In Products Liability Cases, Larry T. Thrailkill

Vanderbilt Law Review

The development of products liability law has followed an arduous course, especially during the past 70 years.' Many serious problems have arisen out of consumer attempts to obtain redress from manufacturers of defective products. Many of these problems have been resolved, but the problem of selecting and applying the appropriate statute of limitations persists, causing confusion among jurists, legislators, and practitioners and yielding inconsistent and inequitable results. A hypothetical will illustrate the problem and provide a factual context within which the problem may be discussed.

In 1970, Plaintiff is injured and his home destroyed when a gas water heater explodes. …

The Supreme Court And Fundamental Rights--A Problem Of Judicial Method, James H. Wildman

Vanderbilt Law Review

Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when "liberty" will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy …

Book Reviews, Samuel A. Bleicher, Nat. T. Winston, Jr., Dan B. German

Vanderbilt Law Review

Law-Making in the International Civil Aviation Organization By Thomas Buergenthal Syracuse University Press, 1969. Pp. viii,247. $10.50.

reviewer: Samuel A. Bleicher

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The Role of Psychiatry in Law By Manfred S. Guttmacher, M.D. Springfield: Charles C. Thomas, 1968. Pp. ix, 170. $7.50.

reviewer: Nat. T. Winston, Jr., M.D.

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The Development of Political Attitudes in Children By Robert D. Hess & Judith V. Torney Chicago: Aldine Publishing Co., 1967. Pp. xviii, 288. $9.75.

reviewer: Dan B. German

Recent Cases, Law Review Staff

Vanderbilt Law Review

Accountants--Auditors--Compliance with General Accounting Principles Not a Complete Defense To Criminal Fraud

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Administrative Law--Standing to Challenge Administrative Actions--Anyone Arguably Protected by Statute May Sue

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Constitutional Law--Abortion--Standard Excepting Abortions Done as "Necessary for the Preservation of the Mother's Life or Health" Held Unconstitutionally Vague

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Constitutional Law--Civil Rights--Discrimination by a Third Party in Connection with the Rental of Property Entitles the Injured Party to a Private Right of Damages Under Section 1982

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Constitutional Law--Double Jeopardy--Benton v. Maryland Applies Retroactively to State Criminal Convictions

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Copyright--Unfair Competition--Unauthorized Reproduction of Another's Recording for Resale Violates State Unfair Competition Doctrine

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Book Notes, Law Review Staff

Vanderbilt Law Review

Book Notes --

The Strength of Government--By McGeorge Bundy Cambridge:Harvard University Press, 1968. Pp. xii, 107. $3.75.

Towards a Global Federalism-- By William 0. Douglas. New York: New York University Press, 1968. Pp. xi, 177, $7.95.

Democracy, Dissent, and Disorder: The Issues and the Law-- By Robert F. Drinan New York: The Seabury Press, 1969. Pp. 152,$4.95.

The End of Obscenity: The Trials of Lady Chatterly, Tropic of Cancer, and Fanny Hill --By Charles Rembar New York: Random House, Inc., 1968. Pp. xii, 528. $8.95.

Justice on Trial-- By A.L. Todd Chicago: The University of Chicago Press, 1964. Pp. ix, …

Judicial Creation Of Direct Actions Against Automobile Liability Insurers: Shingleton V. Bussey, Jason G. Reynolds

Vanderbilt Law Review

Elizabeth R. Bussey commenced a negligence action in a Florida state trial court against Frances R.B. Shingleton for damages sustained in an automobile mishap. The accident itself was a rather ordinary rear-end collision. Out of the ordinary, however, was the fact that the plaintiff joined as a party defendant Shingleton's liability insurer, Nationwide Mutual Insurance Company. The trial judge, following the insurance policy's non-joinder provisions' and the weight of authority in Florida and elsewhere, granted Nationwide's motion that it be dismissed as a party defendant. Plaintiff appealed this order to the Florida District Court of Appeal on the theory that, …

Introduction To Symposium On Securities, Manuel F. Cohen

Vanderbilt Law Review

Students of the securities markets, and of relevant law and regulation, will wonder whether another symposium is worthwhile. Recent years have seen a proliferation of symposia, meetings, conferences, taped messages, books, pamphlets, and other materials designed to educate the uninitiated or to provide an opportunity for debate among the sophisticated concerning the important issues of the day. This, of course, assumes that there are important issues, and merit in the continued effort at education...This symposium does not reach all the issues. It does, however, deal with certain important ones and suggests quite emphatically the need for re-examination of all. To …

Reform Of The Blue Sky Laws, James S. Mofsky

Vanderbilt Law Review

Some constructive recommendations can be made to generate meaningful reform of the blue sky laws within the states themselves. In this regard, it is important to separate those persons who would be in favor of revision as discussed in this article from those who would be opposed. As previously mentioned, corporate officials and businessmen associated with small firms directly affected by the blue sky laws would probably advocate reform, as would the investment bankers who underwrite such firms. These persons and firms must have substantial political muscle if they are to achieve significant results in the state capitols. Such strength …

The Case Against Insider Trading: A Response To Professor Manne, David Ferber

Vanderbilt Law Review

Professor Manne's article appears to be largely an attack on critics of his book Insider Trading and the Stock Market. I must confess I have not read his book. I did, however, read an earlier article by Professor Manne attacking the position of the Commission in the Texas Gulf case, and I once participated in a forum at which Professor Manne expressed his view that inside information should be something that a corporate official might sell. I disagree with Professor Manne's basic position that "[t]he debatable aspects of insider trading are capable of resolution through tools of economic analysis,"' as …

A Rejoinder To Mr. Ferber, Henry G. Manne

Vanderbilt Law Review

No congressman would tell his constituents, "you may be losing money by SEC regulation, but that is irrelevant, since the men down there are serving a higher moral order." The truth of the matter is that there need be no conflict between good economics and good morality. The confusion arises when the attempt is made to substitute superficial ideas of morality for fundamental economic doctrine. Clearly every decision has an economic impact just as it has moral implications. But how can one judge the moral content or desirability of an act of economic regulation without knowing the effects of it?

Book Reviews, Maurice H. Merrill, Tom C. Clark, Anthony Platt

Vanderbilt Law Review

Discretionary Justice: A Preliminary Inquiry

By Kenneth Culp Davis Baton Rouge: Louisiana State University Press. 1969. Pp. xii,233. $8.50

reviewer: Maurice H. Merrill

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Gambling and Organized Crime

By Rufus King Washington:Public Affairs Press, 1969. Pp. viii, 239. $6.00

reviewer: Tom C. Clark

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The Throwaway Children

By Lisa Aversa Richette New York:J.B. Lippincott, 1969. Pp. x, 342. $6.95

reviewer: Anthony Platt

Codification And Rule 10b-5, Lewis D. Lowenfels

Vanderbilt Law Review

One of the most interesting as well as controversial areas of the securities laws has been the growth of implied liabilities under section 10(b) of the Securities Exchange Act of 1934 and Rule l0(b)-5 promulgated there under. Any attempt to codify the securities laws would probably include an attempt to codify this entire l0b-5 area.' Once the codifiers move into this area, however, there is a strong likelihood that codification will result in reform and revision, and the present scope as well as the future growth and development of "federal corporation law" under Rule l0b-5 will be profoundly altered.' Thus …

Insider Trading And The Law Professors, Henry G. Manne

Vanderbilt Law Review

When Insider Trading and the Stock Market' appeared in November, 1966, I was fully prepared for a goodly amount of disagreement. I was not prepared however for the emotional, almost hostile response my book received from some members of the academic community. This is not to say that all the reviews by law professors were unsympathetic and emotional in tone. Indeed the majority of them were not, and while critical reviews outnumbered favorable ones, most were in some degree mixed, and the tone was generally scholarly, impersonal, and in many cases constructive But the response to my book in the …

The Warren Court: Completion Of A Constitutional Revolution, William F. Swindler

Vanderbilt Law Review

In the final weeks of its sixteen year history, the subject matter of the Warren Court's opinions ranged over most of the major constitutional issues with which it had concerned itself since 1953, and out of which it developed the seminal decisions for which it will be remembered. For example, it upheld an Alabama desegregation plan which provided for proportional racial representation on public school faculties,' and found a snack bar in a privately owned recreational facility to be within the "public accomodations" definition of the Civil Rights Act of 1964. It rejected a North Carolina county's request to reinstate …

The Supreme Court: Viable Fallibilism Or Fatal Infallibility, Bernard Goodwin

Vanderbilt Law Review

The recent growth in the importance and apparent power of the Supreme Court has been one result of our rapidly changing twentieth century society. In the social ferment of the last two decades, the Court, more than Congress, has expressed the conscience and intellectual consensus of American culture. Speaking as a practicing attorney and concerned citizen, the author of this article does not criticize the Court for stepping into this gap in our governmental structure, but he feels that the possibility of increased activism on the part of the Court indicates a serious breakdown in governmental checks and balances and …

The Haynsworth Affair Reconsidered: The Significance Of Conflicting Perceptions Of The Judicial Role, Edward N. Beiser

Vanderbilt Law Review

Between 1900 and 1968, the Senate had refused to confirm an appointee to the Supreme Court on only one occasion. Then, within a two year period, the Senate twice refused to confirm an appointment: Associate Justice Abe Fortas, nominated as Chief Justice in 1968, was never acted upon because of a Senate filibuster,and his name was withdrawn; and Judge Clement Haynsworth, whose nomination provoked a great deal of debate and controversy, was ultimately rejected by the Senate by a vote of 55 to 45. These two incidents marked a distinct change from the traditional custom of Senatorial acquiescence to Presidential …

Condominiums: Incorporation Of The Common Elements--A Proposal, John H. Bailery, Iii, Lawrence C. Ashby

Vanderbilt Law Review

Although the establishment of a common element corporation will provide the unit owners with some relief from major legal problems,close examination clearly reveals that such a proposal is not a ready cure for the condominium's many drawbacks. Among the proposal's chief benefits is the elimination of unlimited, joint and several liability for the unit owners. At the same time, responsibility for liability and casualty insurance coverage will be more clearly defined with the consequent elimination of double coverage. A variety of procedural questions will also be resolved since the corporation will be directly responsible for the common areas and facilities …