Law Commons^™

Foreign Corporations And Local Corporate Policy, Stanley A. Kaplan

Vanderbilt Law Review

This article will not attempt to document the thesis that there are corporate abuses or that an enabling act is less desirable than a regulatory type of statute. It is sufficient to assert or presume that there may be internal corporate abuses and that it may be desirable for some states, if they so choose, to have corporation statutes which are more than enabling acts and which limit or regulate specified aspects of corporate conduct. The question of whether it is feasible for a state to maintain a corporation statute which attempts closely to regulate the internal affairs of the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Significant Interest Doctrine Extended to Marital Property Litigation

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Constitutional Law-Search and Seizure--Fourth Amendment Restrictions Apply to Electronic Eavesdropping When Conversations Are Private--Physical Trespass Test Discarded

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Constitutional Law-Section 5(a) (1) (D) Prohibiting Members of Communist-Action Organizations from Employment in Defense Facilities Held Unconstitutional Infringement Upon Freedom of Association

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Criminal Law--Evidence-Unauthorized Juror View Violates Sixth Amendment Right to Confrontation

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Domestic Relations--Intentional False Representation of Pregnancy Grounds for Annulment

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Income Tax--Corporations--Attorneys' and Accountants' Fees Incurred in Sale of Assets Pursuant to a Section 337 Liquidation Are Not Deductible

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Interest--Usury--Charging Debtor with Statutory Maximum Loan Fees …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Unincorporated Divisions of a Corporation May Be Separate Entities for Purposes of Antitrust Laws

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Constitutional Law--One-Year Residence Requirement as Condition of Eligibility for State Welfare Aid Held Unconstitutional

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International Law--Sovereign Immunity and Act of State--Hickenlooper Amendment Precludes Assertion of Act of State Where Act Is Violative of International Law

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Products Liability--Lender Held Liable for Gross Defects in Housing Development It Had Financed

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Taxation--Constructive Ownership Rules Automatically Applied to Section 302(b) (1)Dividend Equivalency Test

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Taxation--IRS Rules Organization Which Discriminates on Basis of Race Not Charitable

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antitrust, constitutional law, international law, products liability, taxation

Collective Bargaining: A Management View, Robert Abelow

Vanderbilt Law Review

In the area of grievance and arbitration machinery, unions are demanding protection against damage claims and court actions and insisting that arbitration be the sole and exclusive remedy for all disputes. Not only are unions insisting upon arbitration of grievances arising under the contract, but they are also insisting upon arbitration of other types of disputes growing out of the relationship between the parties, whether covered by the contract or not. Unions also seek immunity from damage claims in the event of so-called "wildcat strikes" and fiercely resist provisions which would enable management to obtain relief from courts when "no-strike" …

The Choice Among State Laws In Maritime Death Cases, David P. Currie

Vanderbilt Law Review

This article is about choice of law, not jurisdiction. Suffice it that the court of appeals was prepared to equate a damp Convair with a Cunarder. It is a very interesting fact that in admirality cases, unlike diversity cases, the governing substantive law, in whatever court, is predominantly federal; the Supreme Court has consistently held that the grant of admiralty jurisdiction to federal courts by the Constitution gives federal judges power to create federal decisional law, although the similarly worded diversity grant does not. If this distinction is justifiable, it must be because of the different purposes the Court has …

Joint Business Ventures In The Central American Common Market, Michael W. Gordon

Vanderbilt Law Review

The European Economic Community's Treaty of Rome was referred to by Paul Monet as the first great anti-trust law in Europe. This view is undoubtedly predicated on the belief that the Treaty of Rome would break up the large cartels existing in the individual European nations by providing relatively uninhibited competition from other nations. However, this has not proved true since many of the old cartels remain strong. Conversely, other individuals expressed concern about the proposed EEC and feared that giant European cartels might develop. These concerns equally proved to be erroneous. With respect to the CACM, at least one …

Legal Problems In Donations Of Human Tissues To Medical Science, Author Unidentified

Vanderbilt Law Review

On December 3, 1967, the first human heart transplant was performed by Dr. Christian Barnard in Capetown, South Africa.' Although the achievement received a great deal of attention, it is clear that its principal import is in the perfection of new surgical techniques, rather than in conceptual innovation. Organ transplants have been performed for many years, from the simplest, a blood transfusion,to more complex and hazardous therapeutics, such as skin grafts and kidney transplants. Anatomically, the heart is no more important or necessary an organ than the kidney or the liver, but common subjective notions of the heart's central function …

Presumptions, Burden Of Proof And The Uniform Commercial Code, W. Harold Bigham

Vanderbilt Law Review

The Uniform Commercial Code' represents an attempt to codify,to clarify and to improve the substantive law of commercial transactions. Even a summary examination of the Code impresses one with the magnitude of this ambitious undertaking to reform so huge a body of substantive law. Inevitably, such a project must shade over into areas of adjective law and problems of proof. Whether through inadvertence or failure of the draftsmen to solicit the aid of persons whose expertise is outside the substantive law of commercial transactions, it is precisely at the points where substantive and procedural law meet in the Uniform Commercial …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Torts--Law of Jurisdiction with Predominant Interest in Resolution of Issue Applied

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Constitutional Law--Owner of Private Subdivision May Refuse To Sell to Negroes

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Eminent Domain--Compensation for Substantial Impairment of Riparian Owners' Right of Access Denied

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Taxation--Professional Service Corporations--Kintner Regulations Held Invalid

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Taxation--Recovered Charitable Contributions, Previously Claimed as Deductions, Are Gross Income In Year of Receipt

Tax Problems In Sales To Controlled Corporations, Brian C. Ellis

Vanderbilt Law Review

Mr. Ellis examines the tax consequences arising when a taxpayer sells appreciated property to a controlled corporation in order to realize a capital gain for himself as well as to increase the basis of the property. He points out the dangers inherent in such a transaction and suggests precautions which should be taken to obtain favorable tax treatment. The author concludes that a taxpayer transferring appreciated property to a controlled corporation may achieve substantial tax benefits because of the relative ineffectiveness of sections 351 and 1239; however, it will be almost impossible for a taxpayer to recognize a loss on …

Headnotes, Journal Editor

Vanderbilt Journal of Transnational Law

This issue marks the close of the first year for the Vanderbilt International. What it will become in the future is anyone's guess with General Hershey threatening a drastic reduction in the number of law students next year. In the long run, however, the publication can probably fill a very useful role as either an interdisciplinary magazine with a legal bias or as a law journal with an interdisciplinary bent. The former goal has been, by choice and necessity, the object of this year's Editors. Next year's staff will do as they like.

Regardless of emphasis, however, the increasing importance …

Case Comments, Journal Staff

Vanderbilt Journal of Transnational Law

Sovereign Immunity and Act of State -- A Foreign Sovereign instituting Suit in a United States Court waives Immunity to a Set-off arising from an Act of that Sovereign

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International Law--Nuremburg Doctrine invoked in Domestic Court-Martial

The Use Of Tests In Promotions Under Seniority Provisions, Aubrey L. Coleman, Jr.

Vanderbilt Law Review

The testing requirements enunciated by the 1964 Civil Rights Act and the Equal Employment Opportunity Commission to eliminate certain types of discrimination through tests will assuredly have application in the further development of sound, overall testing programs for all employees. While at present very few contracts have provisions with respect to testing, undoubtedly most future agreements will. This development should reduce the number of disputes, since requirements now imposed by arbitrators will be written into bargaining agreements. While there will still be disagreements over whether the tests were properly evaluated, controversies as to whether the tests are specifically related to …

State Legislative Services: An Overview, Law Review Staff

Vanderbilt Law Review

Increasing awareness of the critical needs of the state legislatures has stimulated a number of groups to study these needs and suggest reforms. As a result of these efforts, the problems in this area are well-defined. However, all too often the states have failed to take an overview of the needs of the legislative branch; instead most efforts in this area have been directed towards the solutions of specific problems. The result has been as follows: a specific service agency will be created in response to a felt need; subsequently the agency will assume additional duties under the force of …

Book Reviews, Edward W. Kuhn

Vanderbilt Law Review

Lawyers and Their Work; An Analysis of the Legal Profession in the United States and England. By Quintin Johnstone and Dan Hopson, Jr. Bobbs-Merrill Company, 1967. Pp. x, 604. $10.

Federal Regulation Of Independent Natural Gas Producers, Joe H. Foy

Vanderbilt Law Review

In describing and evaluating area rate-making, Mr. Foy concentrates on its historical context. His discussion shows how conventional utility and railroad regulatory methods grew to fit the economic characteristics of the regulated industries. He traces the fluctuating standards of the federal "fair value" era and the modern "end-result" era, with emphasis on the Hope case, and analyzes the use of typical or representative costs in various types of group proceedings. Concluding that natural gas producers occupy a unique factual position, he warns that the FPC must continue to devise ingenious, pragmatic methodology, untrammelled by conventional regulatory concepts, if its regulation …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Agency Franchise Agreements Are Reasonable Trade Restraints Under Sherman Act While Restraints Following Sale Are Per Se Unlawful

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Antitrust--Product Extension Merger in Violation of Section 7 of the Clayton Act

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Constitutional Law--Reapportionment-Principle of "One Man, One Vote" Not Applicable to Appointed County School Board Performing Administrative Function

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Labor Law--Union Empowered To Expel Member for Failure To Exhaust Union Appellate Remedies

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Taxation--Federal Estate Taxation-State Trial Court Judgments on Property Rights Not Conclusive on Federal Courts Adjudicating Federal Tax Consequences

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Taxation--Federal Income Tax--Effect of Close Corporation Voting Trust on Right to Subchapter S Election

Federal Tax Rulings: Procedure And Policy, Saul C. Belz

Vanderbilt Law Review

The rulings program of the Internal Revenue Service was designed to meet the need for predictability of the tax consequences of any given financial transaction. Though the rulings program is not particularly important to the average taxpayer, it has become increasingly crucial both to the financial community and to the Service itself. As the tax laws become more complex, and tax risks become increasingly important to the success of business ventures, the need for confirmation before entering into a transaction is intensified. Thus parties to a transaction will generally request a ruling...

"whenever the answer is uncertain or when the …

The Desegregation Opinion Revisited:Legal Or Sociological?, Morris D. Forkosch

Vanderbilt Law Review

It is the thesis of this article that the Supreme Court, regardless of its decision for or against the state laws, had the judicial ability and jurisdiction to render the opinion in the Desegregation Case of 1954. A distinction is drawn here between the judicial power to decide a case regardless of any attendant consequences, and the reasons given for that decision. When reasons which were supposedly valid seventy years ago are now rejected, there is nothing illogical in this rejection so long as the Court still adheres to the identical procedure used earlier; but when the substance within the …

Severance -- A Means Of Minimizing The Role Of Burden And Expense In Determining The Outcome Of Litigation, Warren F. Schwartz

Vanderbilt Law Review

This article is divided into two main parts. First, it is assumed that the controlling question is how severance affects the likely outcome of litigation by altering the normal incidence of expense and burden. Then the article examines the question of whether there are overriding considerations (particularly the need for "tempering" by reference to the entire controversy) which require that severance be withheld even if dictated by considerations of economy.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Labor Law-Exemption of Union from Antitrust Laws Is Lost When It Imposes Minimum Price Levels on a Member-Employer Acting on their own initiative, the plaintiffs, union member'

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Civil Rights--Desegregation--School Authorities Have Afirmative Duty To Integrate School System Negro children in six Louisiana and three Alabama school systems

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Constitutional Law--Citizenship--Stripping Congress of Its Right To Expatriate

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Constitutional Law--State Constitutional Amendment Guaranteeing Discretion to Seller of Real Estate Violates Fourteenth Amendment

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Criminal Law--The "Mere Evidence" Rule Is Expressly Abolished

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antitrust, civil rights, constitutional law, criminal law

Book Reviews: The Lawyer And His Community, Elliott E. Cheatham

Vanderbilt Law Review

This volume is a product of the first careful study of one professional community, the bar, within a small American city, it being directed to the practicing lawyer in an anonymous middle western city of about 100,000 population. All of us concerned with the welfare and responsibilities of the American bar are in debt to Professor Handler for this book.

Burden Of Proof And Choice Of Forum In Tax Litigation, George L. Whitfield, Charles E. Mccallum

Vanderbilt Law Review

Since the burden of proof may be a decisive factor in tax litigation, it is important that the taxpayer be aware of the different rules in the various forums to which he may take a tax controversy, and it is essential that those rules operate fairly and consistently to enable the taxpayer to choose his forum intelligently. It is the purpose of this article to examine the burden of proof in tax litigation as it affects the choice of forum problem.

Corporate Securities As "Business Property", Thomas G. Bost

Vanderbilt Law Review

Inadequacies of the statutory definition of "capital asset" have led the courts to develop the concept of "business property," which serves to distinguish everyday business activities from investment activities.This concept is now being applied by courts in a wide variety of factual situations involving corporate securities. However, unless objective, easily ascertainable limits to the "business property" concept are found, confusion and inconsistency may mark the development of future case law. The rules developed by the American Law Institute's Discussion Draft Study of Definitional Problems in Capital Gains Taxation appear to provide these objective limits. Because they are consistent with the …

The Practice Of Law By Out-Of-State Attorneys, William E. Flowers

Vanderbilt Law Review

Multi-state legal problems are commonplace for the American attorney. In meeting the legal needs of the business and personal lives of his clients, he is confronted daily with laws of the several components of our federal system. Out-of-state litigation and office work situations constantly demand his presence in jurisdictions in which he is not admitted to practice. Yet present admission rules make his appearance in such litigation difficult at best, and render such office work virtually impossible. These restrictions on the interstate practice of law have become intolerable--in a legal, if not always a practical, sense--in the context of our …

Abortion Legislation: The Need For Reform, Law Review Staff

Vanderbilt Law Review

Widespread national publicity and recent state legislative activity have focused a significant degree of national concern on a serious problem of public health and morals--the question of abortion.Surveys indicate that between 1,000,000 and 1,500,000 abortions take place annually--or, one abortion for every four to five pregnancies. The so-called "back-street abortionists," whether amateur or professional, each year cause the death of 5,000 to 10,000 women who are forced to seek their services. Because of the highly controversial nature of abortion, statutes attempting to deal with the problem stubbornly resist amendment despite widespread disregard of their provisions. Many hospitals permit abortions under …

Attorney's Fees: Where Shall The Ultimate Burden Lie?, James H. Cheek, Iii

Vanderbilt Law Review

Unfettered access to the courts is the cornerstone of the American concept of justice, yet even today we are far from achieving this ideal. Recently much progress has been achieved in improved legal services for the poor;' but the poor will never have completely free access to the courts unless the American rule that each litigant must bear the burden of paying his own attorney's fees is changed...

Since the first note of protest in 1925, a few writers, recognizing the intimate relationship between attorney's fees and full relief for the wronged party, have urged the adoption of some form …

Rights And Obligations In The Mutual Fund: A Source Of Law, James M. Anderson

Vanderbilt Law Review

The proposals of this note, the thrust of statutory regulation, the trend of the case law and the direction of recent developments are all consistent. In a practical sense, the suggestions here attempt to provide a reasonable source of law for the men of the industry and for the courts in search of an authoritative system of behavioral standards. If, for example, a mutual fund has enjoyed such vigorous growth that the percentage fee now charged by the advisers has lost its relevance to the actual cost of management, the disgruntled shareholder or the apprehensive director would seek information on …

The Department Of Consumers, W. E. Forte

Vanderbilt Law Review

In 1872, Congress began protecting the American consumer by enacting legislation to prevent mail fraud. From this modest beginning, the consumer protection activities of the federal government have proliferated until today there are at least 33 government agencies engaged in 296 consumer protection activities. In 1961, the estimated annual expenditures by the federal government for direct consumer protection activities totaled 272 million dollars and the number of full-time federal employees engaged in such activities was almost 22,000. Expenditures for consumer advancement, a broader concept, were estimated at 681 million dollars in 1961 and the number of full time federal employees …

The English Law Commission: A New Philosophy Of Law Reform, R. J. Sutton

Vanderbilt Law Review

Mr. Sutton discusses the newly formed English Law Commission in an effort to present constructive suggestions for the establishment and maintenance of effective law revision programs for other jurisdictions. He examines the structure of the English commission and points out that the qualities of flexibility, independence, and opportunity for early compromise of its proposals with legislators are essential for a successful law revision commission. The author concludes that the major value to be gained from the English commission is its adoption of a new philosophy of law reform--give the commission sufficient latitude to enable it to stimulate advanced legislation.