Law Commons^™

Basis Of Property Transferred At Death Under The Tax Reform Act Of 1976, Jefferson D. Collins

Mercer Law Review

One of the more important provisions of the Tax Reform Act of 1976 and one that will tend to grow in importance with each passing day is §2005(a), which provided for the virtual replacement after December 31, 1976, of §1014 by §1023. Section 1014 provides that the basis of property acquired from a decedent is its fair market value at the applicable estate tax valuation date. Section 1014 could produce a decrease in the basis of property which had declined in value. As property has generally tended to appreciate over time, however, and as people have tended to make sure …

Remembering 1965: Abe Fortas And The Supreme Court, Larry M. Roth

Mercer Law Review

With 1965 an era both ended and began. That year the American consciousness over the Vietnam War was truly awakened to the sound of far off howitzers. Also that year, Abe Fortas was nominated and confirmed by the Senate for the Supreme Court seat vacated by Arthur Goldberg. The reverberations of both phenomena still exist although the former permeates our social order much more than the latter. Quite recently, however, we witnessed a positive by-product of the Fortas appointment: the appointment of John Paul Stevens to the Supreme Court. With Stevens' nomination the appointive process witnessed a selection procedure that …

Civil Rights, Alfred L. Evans Jr.

Mercer Law Review

During the course of 1976, the U.S. Court of Appeals for the Fifth Circuit rendered approximately 125 opinions in cases dealing with the myriad ways in which the Constitution of the United States affects the civil relationships between citizens and their government and between each other. In view of the impossibility of going beyond a rather pointless two or three sentences per case, should it be attempted to cover all or even the bulk of these cases, I have once again selected but a few of those areas in which the Court has acted for a somewhat more detailed analysis.

Bankruptcy, W. Homer Drake Jr., James E. Massey

Mercer Law Review

The Court of Appeals for the Fifth Circuit decided few cases involving the Bankruptcy Act in 1976. Of these, only nine merit special attention. The right to file a bankruptcy petition without being fired was the subject of McLellan v. Mississippi Power & Light Co. Nothing in the U.S. Constitution or the Bankruptcy Act prohibits an employer from firing an employee who files a voluntary bankruptcy petition. The McLellan case, however, held that a plaintiff states a claim for relief under the Civil Rights Act of 1861 by alleging that his employer deprived him of his civil rights by firing …

Admiralty, George H. Chamlee

Mercer Law Review

A commentator recently had the temerity to suggest that the reasons for the existence of admiralty law and the admiralty jurisdiction as a separate system of jurisprudence "are not immediately apparent." Certainly the survival of admiralty as a largely unique body of law serving the needs of a single industry must be considered remarkable in this era of judicial reform and modernization. Admiralty is one of the few areas of legal specialization still left where law can frequently be justified on the basis of history rather than reason.

If the work of the Fifth Circuit Court of Appeals is any …

Antitrust, Michael Eric Ross, John C. Staton Jr.

Mercer Law Review

In broadest terms, the performance of the Court of Appeals for the Fifth Circuit' in the antitrust area ' during 1976 might best be characterized as solid. Although demonstrating little of the innovative yet well-reasoned analysis which distinguished several 1975 decisions, none of this year's antitrust opinions appear to be as susceptible to criticism as were, for example, Eastex Aviation, Inc. v. Sperry & Hutchinson Co. and Cooper Liquor, Inc. v. Adolph Coors Co. Indeed, a substantial portion of the "development" of the substantive law in 1976 consisted of the court's attempts to "clarify" some of the implications …

Labor Law, Robert W. Ashmore, Michael H. Campbell

Mercer Law Review

During 1976, the Fifth Circuit Court of Appeals again issued a substantial number of decisions interpreting and applying the growing number of federal statutes governing employer-employee relationships.' It is noteworthy that of nearly 60 cases reviewed, 29 were reversed, vacated or modified, at least in part. Factors such as the high percentage of unorganized employees in the circuit and the consequent active union organizing efforts provided the court with a wide variety of labor cases and with, perhaps, greater familiarity with the law in this area than some other circuits have. For whatever reasons, the court's decisions this term indicate …

Practice And Procedure, R. Neal Batson, Ben F. Johnson Iii

Mercer Law Review

This article opened last year with a discussion of McGovern v. American Airlines, Inc. and the principle that it is the plaintiff's burden to allege and invoke federal jurisdiction. McGovern was undercut somewhat by the 1976 case of Skidmore v. Syntex Laboratories, Inc. Indeed, one dissenting judge argued that the Fifth Circuit was permitting jurisdiction even though the plaintiff had failed to make even a prima facie showing of essential jurisdictional facts. The plaintiff, a Texas citizen, brought a products-liability diversity action against one Delaware corporation and one Panamanian corporation. The plaintiff, even after substantial discovery, was unable to demonstrate …

Denying Maternity Benefits Is Not Sex Discrimination Under Title Vii, Dewey Ray Mckenzie Jr.

Mercer Law Review

The U.S. Supreme Court, in General Electric v. Gilbert, held that the exclusion of pregnancy benefits from General Electric's general coverage disability plan for employees did not violate Title VII of the Civil Rights Act of 1964. General Electric's disability plan provided sickness and accident benefits for all employees, including those who became disabled as a result of a non-occupational sickness or accident. The plaintiffs in the initial suit were hourly paid production workers in General Electric's Salem, Virginia, plant, each of whom had become pregnant and had filed a claim for disability benefits. Each had been denied payment …

Federal Common Law, Not State Law, Controls Interpretation Of Federal Bail-Bond Contracts, William T. Wingfield Jr.

Mercer Law Review

The U.S. Court of Appeals for the Fifth Circuit, in United States v. Miller, held that the liability of a surety on a federal bail-bond contract depends on the wording of the contract as interpreted under general federal common-law principles of suretyship and contract law.

Resolute Insurance Company was surety for Thomas Miller on two identical appearance bonds. Miller was found guilty of assaulting an FBI agent, had pleaded guilty to interstate transportation of stolen goods, and was sentenced to a total of three years and three months of imprisonment. The trial court, at Miller's request and in the …

If Coverage Of 'No-Strike' Clause Is Only Issue For Arbitrtor, Strike May Not Be Enjoined, Robert C. Clark Jr.

Mercer Law Review

In Buffalo Forge Co. v. Steelworkers of America, the U.S. Supreme Court held in a 5-4 decision that §4 of the Norris-La Guardia Act' prevents a federal court from enjoining a sympathy strike while an arbitrator is deciding whether the strike is covered by a no-strike clause. The Court's decision settled the sole question left unanswered by Boys Markets, Inc. v. Retail Clerks Union.

Post-Judgment Garnishment Without Notice And A Hearing Is Constitutional, Robert L. Porter Jr.

Mercer Law Review

In Brown v. Liberty Loan Corp., the Court of Appeals for the Fifth Circuit held that Florida's post-judgment garnishment statutes satisfy due process requirements even though they fail to provide the judgment debtor with notice and an opportunity for a hearing on his entitlement to a statutory wage exemption before wages are attached.

Lease Or Security Interest: A Classic Problem Of Commercial Law, Joseph Epps Claxton

Mercer Law Review

Article 9 of the Uniform Commercial Code was drafted in such a manner as to cover almost all consensual security interests in personal property. With relatively few exceptions, the Article expressly applies "to any transaction (regardless of its form) which is intended to create a security interest in personal property." Therefore, in any consideration of the possible application of Article 9 to a particular set of facts, the first and most basic question to be resolved is whether a security interest exists. Ordinarily, the result of such an inquiry is not particularly elusive, but this fact should not obscure the …

Secured Lending, Ken L. Lott, Robert G. Myers

Mercer Law Review

This article makes an attempt to reduce the broad and diverse subject matter of secured lending into some of its simplest common denominators and, from these, to develop some practical guidelines that can be applied to most secured transactions. The following topic will be discussed at some length: loans secured by inventory, accounts receivable, and stocks, bonds and similar collateral. Loans secured by cash value of life insurance, petroleum, ship mortgages and aircraft will be discussed briefly.

Capital Gains As Well As Ordinary Income Absorb Net Operating Loss Deductions, Neal Weinberg

Mercer Law Review

In United States v. Foster Lumber Co., the U.S. Supreme Court, in a 5-4 decision, held that a § 1722 net operating loss deduction is absorbed by both ordinary and capital gains portions of taxable income, even though it does not reduce capital gains subject to tax in the §1201 alternative tax method.

The Description Of Collateral In Security Agreements And Financing Statements, Joseph J. Beard

Mercer Law Review

Perhaps the Bard of Avon was correct in his assertion that misdescription of a rose dims its fragrance not one whit; but a misdescription in a security agreement or financing statement may have the most profound consequences, mostly unpleasant, for the "secured" party. The purpose of this article is to explore what constitutes an adequate description of collateral under the Uniform Commercial Code and the judicial decisions interpreting the description requirements of the Code. The discussion is organized by type of collateral as defined in Article 9: inventory, accounts receivable, equipment and consumer goods, as well as an all-encompassing discussion …

Seller Vs. Secured Party: Searching For An Intangible Something, Allen R. Kamp, Ronald L. Solove

Mercer Law Review

This article will discuss the resolution of conflicting claims to goods between an unsecured seller of goods and a creditor of a buyer claiming under an after-acquired property clause. The problem is complicated by the lack of a coherent relationship among the rules of the Uniform Commercial Code' relevant to the problem. The U.C.C. has abandoned the concept of title in personal property,2 but has failed to replace the concept with a comprehensive system that can definitively and convincingly resolve controversies arising out of conflicting claims.

The Status Of A Creditor As A 'Controlling Person', Joseph W. Bartlett, Philip S. Lapatin

Mercer Law Review

The growing ingenuity of plaintiffs' counsel in security regulation matters and the current legal trend toward redistributing the burden of loss to those best able to absorb it have together reopened the frontiers of legal liability and introduced much uncertainty to areas which were once securely governed by the individualistic philosophy of the early common law. One of the liveliest and most troublesome questions to appear in this regard concerns the obligations of a creditor to protect the public from his debtor's misconduct. The nature of this problem can usefully be illustrated by the following hypothetical situation:'

The Creditor, The Debtor And The Fourteenth Amendment, Elwin Griffith

Mercer Law Review

There has been much commentary on the rights and liabilities arising out of the debtor-creditor relationship. Much of that discussion has centered on the constitutional issues related to the use of such remedies as garnishment, attachment, replevin and repossession. The controversial issue in repossession has been the propriety and constitutionality of the self-help provision of §9-503 of the Uniform Commercial Code. These remedies have provoked discussion when creditors have used them without giving notice and a hearing to debtors.

Shareholders And Informed Voting: How Much Information Do They Need?, A. Mitchell Powell, Laurence Joseph Shapiro

Mercer Law Review

This article will examine attempts by the federal courts to establish standards for materiality, causation and culpability under the federal proxy-solicitation provisions, §14(a) of the 1934 Securities and Exchange Act' and Rule 14a-9.1 This analysis is made difficult by the failure of the courts to clearly delineate the elements of the 14a-9 cause of action. An examination of the major cases in the area will be helpful in unravelling the various strands of analysis followed by the courts.

Antitrust And State Action: Lights Out For A Regulated Utility, Richard W. Pierce

Mercer Law Review

In Cantor v. Detroit Edison, the U.S. Supreme Court held that a power utility regulated by the State of Michigan is not immune from federal antitrust liability, even though the Michigan Public Service Commission had approved the utility's activity under attack-a light-bulb program for customers-and the utility by state law had to maintain the program until it filed a new tariff with the Commission.

Seller Alone Is Liable For Failure To Make 'Credit-Sale' Disclosures, Douglas W. Smith

Mercer Law Review

In Manning v. Princeton Consumer Discount Co., the U.S. Court of Appeals for the Third Circuit held that in a credit sale, only the dealer is responsible for making the required credit sale disclosures, even though both a finance company and an automobile dealer are creditors under the Truth in Lending Act.

Exclusionary Rule Need Not Be Applied In Federal Habeas Reviews Of State Convictions, Jann Johnson

Mercer Law Review

In Stone v. Powell, the U.S. Supreme Court held that if a state "has provided an opportunity for full and fair litigation of a Fourth-Amendment claim, a state prisoner may not be granted federal habeas-corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."

Respondent Powell was convicted of second-degree murder in a California state court. A police officer had found the murder weapon on Powell during a search incident to his arrest for violation of a vagrancy ordinance, and the officer's testimony was admitted at trial over Powell's objection. Powell …

The New Anti-Intellectualism In American Legal Education, Francis A. Allen

Mercer Law Review

Legal education in the United States is passing through its winter of discontent. Those who are new to the law schools-students and young instructors-are likely to be unaware of how recently and precipitously the present mood developed. Even those who have known the law schools longer may by now have forgotten the confidence and euphoria that were characteristic attributes of the schools until no more than a decade ago.

Jurisdiction, Shipowner Negligence And Stevedore Immunities Under The 1972 Amendments To The Longshoremen's Act, David W. Robertson

Mercer Law Review

Prior to major changes effective November 27, 1972,' the jurisprudence under the 1927 Longshoremen's and Harbor Workers' Compensation Act 2 had developed a well-defined system for dealing with injuries to employees covered by that statute. Three entities are routinely involved in such injuries: the vessel in connection with which the victim was working at the time of his injury; the independent contractor hired by the vessel to load, unload, repair, or perform some other service to the vessel; and the injury victim himself, who is an employee of the independent contractor. It is customary to refer to these three entities …

The State Vs. The Family: Does Intervention Really Spare The Child?, Susan R. Rogers

Mercer Law Review

Courts all across this country are attempting to balance the interests of children and parents. It has long been the general rule that natural parents, if considered fit, have the right to the custody of their children, uninterrupted even by a state exercising its parens-patriae power. This right of the natural parent has traditionally taken precedence over the interests of everyone else, including the best interests of the child.

There has been a recent trend, however, toward paying more attention to what the court feels is in the best interests of the child. Although the law is still weighted in …

Consent Of 'Unfit' Parents Needed For Adoption—Unless Their Rights Are First Terminated, Susan W. Gibson

Mercer Law Review

In Johnson v. Eidson, the Georgia Supreme Court held that "moral unfitness" of natural parents is not an exception to the statutory prerequisite that natural parents consent to their children's adoption.

The maternal grandparents of Lewis and Jimmy Lynn Johnson had petitioned the court to allow them to adopt their grandchildren without the consent of the natural parents. Their petition was based on (1) their temporary custody of the children, which was granted by a juvenile court after the children had been found in a condition of neglect; (2) abandonment by the natural parents; and (3) the unfit and …

Amendments May Relate Back To Validate Service Of Process, Michael G. Gray

Mercer Law Review

Leniston v. Bonfiglio is worthy of inspection not only because of the proposition for which the case stands but also because of the manner in which the Georgia Court of Appeals chose to convey this proposition to the reader. Mrs. Alice Bonfiglio filed her complaint in the State Court of DeKalb County for $200 in damages to her automobile, allegedly precipitated by the negligence of defendant, Mrs. Leniston. Service of process was effectuated by a deputy marshal's tacking the summons to the door' of Mrs. Leniston's most notorious place of abode in DeKalb County, pursuant to C.P.A. § 4(d)(6).1 Contending …

Expert Witnesses And The Federal Rules Of Evidence, James W. Mcelhaney

Mercer Law Review

Brainerd Currie was already a legend when he came to Duke from the University of Chicago. I was a third-year law student then and took his course in Conflicts in the spring of 1962—a dazzling intellectual display centered around the hard practicalities of complex litigation. But Currie was more than just a great teacher and scholar. Too busy to take a vacation ("How can you talk about taking a trip to Europe, McElhaney? I'm too busy to go to Europe, and you're going to be practicing. "), he had time to talk with us after class; to drink a cup …

Conflict Of Laws In Damage Suits Related To Workmen's Compensation Cases, Arthur Larson

Mercer Law Review

Conflicts questions can arise as to two categories of damage suits related to workmen's compensation cases. The first category is that of suits against the injured worker's own employer. The second is that of suits against third parties whose negligence contributed to the causation of the compensable injury