Law Commons^™

Group Homes, Families, And Meaning In The Law Of Subdivision Covenants, Robert D. Brussack

Scholarly Works

Part I of this Article discusses two questions central to a general account of the problem of meaning in the law of subdivision covenants. First, whose meaning ought to count? The answer to this question is developed principally by contrasting the meaning problem in covenants law with the related problem in other legal realms such as contractual and statutory interpretation. Second, what should be the role in contemporary covenants law of the traditional rule requiring that ambiguity in covenant language be resolved in favor of the free use of land. Here the Article explores the nature of ambiguity and critiques …

Rawls, Justice, And The Income Tax, Charles R.T. O'Kelley

Scholarly Works

To the extent the primacy of justice is acknowledged in tax policy debate, such acknowledgment is coupled with the assertion that, of course, questions of justice cannot be meaningfully debated. The discussants then attempt to resolve the issue in question by use of ad hoc arguments of fairness and efficiency. The major purpose of this article is to show that not only is justice the primary issue, but that questions of justice can be meaningfully addressed. First, I will examine some of the ad hoc arguments of fairness and efficiency which have been made by proponents of a consumption base …

Society's Choice And Legal Change, Alan Watson

Scholarly Works

This Article is one of a continuing series of writings by the author on both the connection between a society and the legal rules and institutions that operate within it and on the forces that control legal change. My aim is to express more clearly than I have previously the role of lawyers and the legal tradition in changing the law, and the implications of this role for social choice theory in the realm of law.

Local Government Law And Liquor Licensing: A Sobering Vignette, R. Perry Sentell Jr.

Scholarly Works

An earlier effort in this Review [8 Ga. L. Rev. 614 (1974)] sought to probe the general topic of local government power and its exercise in Georgia. Although perhaps not the most exciting of subjects, the exercise of power assumes pivotal practical prominence for both the local government and the citizen. It was somewhat surprising, therefore, to find few settled legal guidelines for approaching the issue and to discover that power problems frequently must be litigated in a jusicial vacuum. Although a great deal of the earlier effort remains fairly accurate, subsequent developments quickly dated the treatment of local government …

Mason Ladd--In Memoriam, Ronald L. Carlson

Scholarly Works

Mason Ladd's life in the law of evidence will never be stilled. The contributions are too thoughtful, too productive, too filled with impact for that ever to happen. In the galaxy of great figures that includes Wigmore, Clearly, Morgan, Maguire, Weinstein, McCormick, Louisell, and others, Dean Ladd's star shone brightly. The mix of insight, humor, and good will that he brought to teaching and scholarly writing is unmatched. The influence of Mason Ladd is perhaps best summarized by this tribute: You can lose a man like Dean Ladd by your own death, but not by his.

Criminal Law In Tennessee In 1980 - A Critical Survey, Joseph G. Cook

Scholarly Works

No abstract provided.

State Taxation In The Federal System: Perspectives On Louisiana's First Use Tax On Natural Gas, Walter Hellerstein

Scholarly Works

The Louisiana First Use Tax is presently the subject of no less than eleven judicial proceedings in state and federal courts, including an original action pending before the Supreme Court and the Special Master to whom the case has been assigned. Any attempt to evaluate in detail the merits of these various challenges to the Louisiana levy in light of the myriad and complex issues they raise would hardly be possible in this forum. Indeed, at this junction, any such undertaking would probably be premature in light of the fact that many of the legal and evidentiary issues raised by …

Publicity Never Dies; It Just Fades Away: The Right Of Publicity And Federal Preemption, David E. Shipley

Scholarly Works

This Article explores the nature and developing boundaries of the state law doctrine of the right of publicity. It investigates the doctrine's conflict with the 1976 Copyright Act and federal policy concerning intellectual property, and concludes that the 1976 Act precludes publicity actions aimed at protecting certain types of publicity interests. In other situations, the overriding objectives of federal copyright policy preempt the right to the extent that the right defined as perpetual; moreover, such protection in perpetuity violates the supremacy clause of the Federal Constitution. Many types of publicity actions, however, should escape preemption either because the asserted rights …

Contribution In Civil Antitrust Litigation: The Emerging Consensus In Legal Literature, James F. Ponsoldt, Benjamin H. Terry

Scholarly Works

The United States Supreme Court recently has agreed to consider the issue of whether contribution among multiple defendants and coconspirators should be allowed in private civil antitrust litigation. Three circuit courts of appeal recently have handed down decisions on the issue of contribution and the result has been disagreement over whether such a right exists or should exist in antitrust law. Legal commentators have responded to these developments with a spate of “solutions” to the problem containing proposals for and against contribution. This article will survey the current status of the literature expressing these opinions. Then, assuming the establishment of …

The Expansion Of Horizontal Merger Defenses After General Dynamics: A Suggested Reconsideration Of Sherman Act Principles, James F. Ponsoldt

Scholarly Works

Logic suggests that if an agreement between two direct competitors to end a price war, allocate customers or refuse to deal with a third party is plainly anticompetitive and forbidden under applicable federal antitrust laws, then a complete integration between those same two direct competitors is equally anticompetitive and similarly should be forbidden. At one point, Congress thought so and the Supreme Court so held, notwithstanding the obvious business advantages enjoyed by the integrated company. In recent years, however, Congress, the Supreme Court and many commentators have changed their view of horizontal integration, and it is now reasonably possible for …

The Transfer Of Technology To Latin America, Gabriel M. Wilner

Scholarly Works

The transfer of technology to Latin America has taken place through both the licensing process and direct investments by foreign enterprises that are often transnational corporations. National law has concerned itself first with the creation of rights in technological knowledge and the protection of these rights by law. The regulation of these rights as set out in contractual relationships and the regulation of direct investment, particularly the technological component thereof, were dealt with thereafter. Other matters such as the repatriation of profits (exchange control), customs controls, and various taxes have also become a part of the national regulatory scene today. …

Civil Procedure - Res Judicata - Effect Of Dismissal With Prejudice, Judy Cornett

Scholarly Works

No abstract provided.

Child Custody And Parental Authority In France, Louisiana And Other States Of The United States: A Comparative Analysis, Christopher L. Blakesley

Scholarly Works

No abstract provided.

The Practice Of Extradition From Antiquity To Modern France And The United States: A Brief History, Christopher L. Blakesley

Scholarly Works

In order to understand the perceptions of extradition’s function and purpose in modern France and the United States, it is important to consider the evolution of thought regarding extradition. This article will focus on the history of extradition law as it has influenced contemporary law in the United States and France. The purpose of the article is to provide insight into the development of the “modern” extradition. Although the process has not always been executed by use of a treaty agreement, treaty authorized extraditions have existed since antiquity. Moreover, a treaty authorized extradition for common crimes, as opposed to political …

Corporate Distributions And The Income Tax: A Consideration Of The Inconsistency Between Subchapter C And Its Underlying Policy, Charles R.T. O'Kelley

Scholarly Works

This Article suggests that although one part of a corporate distribution may be analogous to a sale and the remainder to a dividend, there is no overlap of, or competition between, analogies. This lack of overlap is apparent when one realizes that a dividend and a sale are methods of realizing different types of gain, rather than alternative methods of realizing the same type of gain. This Article examines the basic conceptual model underlying the present system of taxing corporate distributions, describes the appropriate treatment of corporate distributions that is suggested by an understanding of the underlying concepts, and indicates …

The Role Of Comity In The Law Of Federal Courts, Michael L. Wells

Scholarly Works

Considerations of comity often require federal courts to defer to state courts when federal issues could be raised in state proceedings. Contexts in which such deference is required include Younger abstention, habeus corpus exhaustion and procedural default, and Pullman and Burford abstention. In this Article, Professor Wells demonstrates that the Supreme Court's opinions fail to make a distinction between cases where comity requires restraint and those where it does not. The Court's motive in invoking comity is not to decrease access to federal courts, but instead to strike a compromise between the individual's interest in a federal forum and the …

An Inventory Of The Criminal Justice Curriculum Of American Law Schools, Paul M. Kurtz

Scholarly Works

The purpose of this study is to examine the structure of the criminal justice curriculum in the American law school. This entails an analysis of what courses are being offered, how many hours of classroom instruction (both required and elective) are available, and when during the educational process the student is exposed to criminal law courses. The reason for undertaking the study is to provide at least a gross picture of what the present situation is as a guide to what we as a profession or as individual schools might like to do by way of improving the structure. Hopefully, …

Final Report On The Establishment Of An International Criminal Court For The Implementation Of The Apartheid Convention And Other Relevant International Instruments, Daniel H. Derby, M. Cherif Bassiouni

Scholarly Works

No abstract provided.

The Uniting For Peace Resolution On The Thirtieth Anniversary Of Its Passage, Harry Reicher

Scholarly Works

No abstract provided.

Compound Discrimination: The Interaction Of Race And Sex In Employment Discrimination, Elaine W. Shoben

Scholarly Works

The courts have not yet clearly resolved whether Title VII of the Civil Rights Act of 1964 prohibits compound discrimination, that is, discrimination based on a combination of protected characteristics—such as race and sex-rather than single protected characteristics—such as race alone or sex alone. Professor Shoben argues that both the logic and the legislative history of Title VII support the view that compound discrimination is separately protected. She then offers a systematic method for statistically determining whether an employer is discriminating on the basis of a combination of characteristics. Finally, Professor Shoben considers whether single plaintiffs can, consistently with rule …

State Income Taxation Of Multijurisdictional Corporations: Reflections On Mobil, Exxon, And H.R. 5076, Walter Hellerstein

Scholarly Works

The state tax field is experiencing a renaissance of sorts. The Supreme court has displayed a renewed interest in the area, handing down an unusual number of significant decisions addressed to the constitutional restraints on state tax power. State courts have exhibited a similar revival of interest in these problems through an outpouring of uncharacteristically thoughtful opinions concerning state taxation of multistate and multinational enterprise. Congress, whose concern with state taxation of interstate and foreign commerce has been sporadic, is again considering legislation that would limit state taxing authority in these domains. Even the executive branch, which seldom intervenes in …

State Income Taxation Of Multijurisdictional Corporations: Reflections On Mobil, Exxon, And H.R. 5076, Walter Hellerstein

Scholarly Works

The state tax field is enjoying a renaissance of sorts. The Supreme Court has displayed a renewed interest in the area, handing down an unusual number of significant decisions addressed to the constitutional restraints on state tax power. State courts have exhibited a similar revival of interest in these problems through an out-pouring of uncharacteristically thoughtful opinions concerning state taxation of multistate and multinational enterprise. Congress, whose concern with state taxation of interstate and foreign commerce has been sporadic, is again considering legislation that would limit state taxing authority in these domains.

Even the executive branch, which seldom intervenes in …

Criminal Law In Tennessee In 1979 - A Critical Survey, Joseph G. Cook

Scholarly Works

No abstract provided.

The Governmental-Proprietary Distinction In Constitutional Law, Michael L. Wells, Walter Hellerstein

Scholarly Works

The governmental-proprietary distinction has led a stormy life. Courts have characterized it as “illusory,” a “quagmire,” a “rule of law that is inherently unsound,” and as a “talismanic formula” that results in “unenlightening characterizations of States’ activities.” Commentators have branded the distinction as “probably one of the most unsatisfactory known to the law,” have questioned its internal coherence, and have dismissed it as irrelevant in constitutional decisions. The distinction, however, clings stubbornly to life, appearing in a remarkably wide range of cases. The United States Supreme Court itself appears ambivalent about its worth. In some cases, the Court has rejected …

Workers' Compensation In Georgia Municipal Law, R. Perry Sentell Jr.

Scholarly Works

For the last sixty years, workers' compensation has constituted a distinct subject of administration in Georgia municipal government and, consequently, a distinct subject of controversy in Georgia municipal law. Of course, many of the problems, issues, and solutions ar ethe same, whether the covered employment be municipal or private in nature. Still, municipal law possesses its own quagmires, quandaries, and conundrums; some of those peculiarities can yield unique questions regarding workers' compensation. Whether general or unique, the appellate courts have rendered a number of decisions on the subject, and those decisions make for yet another compact chapter in Georgia municipal …

Dispensing With Administration, Estates Of Absentees, Simultaneous Death, Appointment And Qualification Of Domestic And Foreign Personal Representatives: A Critique Of Statutory Requirements, Verner F. Chaffin

Scholarly Works

This Article will survey certain aspects of decedent's estate administration, including the situations where administration may be avoided, the administration of estates of absentees and missing persons, and the problems involved where simultaneous death occurs. The various types of personal representatives, their appointment and qualification, and the distinctions between foreign and local personal representatives will be considered. Georgia law will be given a critical appraisal, its shortcomings will be delineated, and suggestions will be made for improvement in areas where the need is greatest.

Codification And Consequences: The Georgian Motif, R. Perry Sentell Jr.

Scholarly Works

For roughly the last 45 years, the Georgia statutory scene has featured both codification species--a statutorily sanctioned code of 1933, and a supplemented and "annotated" code of private publication. For many purposes this situation was of little interest or importance; on occasion, however, the point could become one of ominous significance, particularly for lawyers (and their clients). Perhaps a brief account of a few of those occasions and a summary description of the current codification effort--itself already the subject of litigation--will prove of general interest.

Civil Rights--Federal Jurisdiction--Exhaustion Of Adequate And Appropriate State Administrative Remedies Is A Prerequisite For Judicial Review Under Section 1983, Camilla E. Watson

Scholarly Works

Georgia Patsy, a white female secretary, brought a civil rights action under section 1983 of title 42 of the United States Code against Florida International University in the United States District Court for the Southern District of Florida, alleging employment discrimination in violation of the Constitution and laws of the United States. The district court dismissed the action for failure to exhaust state administrative remedies. The Court of Appeals for the Fifth Circuit reversed on the ground that failure to allege exhaustion of state remedies did not preclude a section 1983 cause of action. On rehearing en banc, the court …

The Myth Of Conditional Relevancy, Vaughn C. Ball

Scholarly Works

[This article is intended to supersede and replace an article with the same title published by the Arizona State Law Journal. That article, in its printed form, was disapproved by me prior to publication, and did not correctly state my views on the subject.] It is the thesis of this article, which may as well be stated first as last, that: (1) the received learning of the doctrine of conditional relevancy is erroneous, being based from the start on an incorrect analysis of relevancy; (2) the doctrine is inconsistent with the definitions of relevancy adopted in the Model Code, the …

A Model First-Party Insurance Excess-Liability Act, Eric M. Holmes

Scholarly Works

The purpose of this article is to study the various statutes concerning first-party, excess-liability in an effort to compose a model act. The primary issues affecting this problem are two-fold: First, what type of extra-contract damages should be available (e.g., attorney fees, litigation expenses, consequential losses, emotional distress, punitive damages); and second, should these extra-contract damages be based on an equitable standard of good-faith conduct (fault) or on strict liability principles (no fault)? These are crucial questions as the division between contract and tort becomes ever more blurred in modern law.