Law Commons^™

Book Review: Louis D. Brandeis And The Progressive Tradition; Brandeis, Paul Brickner

Vanderbilt Law Review

Urofsky has captured the essence of Brandeis in his excellent and informative volume. Urofsky often demonstrates a fine facility for clarifying points and positions with meaningful factual details.His book reveals the depth of scholarship that one would expect from a co-editor of the five volume collection of Brandeis' letters."He recognized the importance of the relationship between Brandeis and Frankfurter and devoted an entire small chapter to their efforts to promulgate their views as described by Bruce Murphy. For a concise but telling biography of Brandeis, from the "people's attorney" to one of the Supreme Court's " nine old men", Urofsky's …

Concealing Legislative Reform In The Common-Law Tradition: The Advancements Doctrine And The Uniform Probate Code, Mary L. Fellows

Vanderbilt Law Review

This essay first sets forth the doctrine of advancements and includes a discussion of its suitability for a study of statutory reform and the purpose and origin of the doctrine. The essay then demonstrates how a presumption against finding an advancement that can be rebutted only by a writing showing a contrary intent operates as a practical repeal of advancements. Next, the essay explores the rationales of the drafters of the Uniform Probate Code(UPC) in repealing the advancements doctrine by subterfuge and analyzes the costs of reform by subterfuge. Finally, the essay recommends an alternative approach to reforming the advancements …

Relatives By Blood, Adoption, And Association: Who Should Get What And Why, Jan E. Rein

Vanderbilt Law Review

This Article explores the questions that courts and legislatures must address in order to integrate the social phenomenon of adoption into our succession laws, monitors the progress that has and has not been made in dealing with these questions, and proposes a comprehensive approach to the treatment of adoptees in matters of succession. Specifically, part I introduces the traditional approach to relationship by adoption, while part HI compares the past and present goals of adoption. Part IV discusses the legal status of adoptees in the context of intestate succession. This discussion explores past and present trends and examines the special …

Dying With The "Living" (Or"Revocable") Trust: Federal Tax Consequences Of Testamentary Dispositions Compared, C. Douglas Miller, R. Alan Rainey

Vanderbilt Law Review

The purpose of this Article is to examine the federal tax consequences of the revocable trust to the grantor and to his estate.Principally due to the grantor's power to revoke the trust and re-vest the trust assets in himself the federal tax consequences to the grantor are in effect, if not in cause, insignificant. The perception that creation of a revocable trust has no federal tax consequences,therefore, is at least to that extent essentially correct, and the discussion herein is merely a summary review of the tax consequences to the grantor upon the trust's creation and during its administration. Perhaps …

Self-Help: Extrajudicial Rights, Privileges And Remedies In Contemporary American Society, Douglas I. Brandon, Melinda L. Cooper, Jeremy H. Greshin, Alvin L. Harris, James M. Head, Jr., Keith R. Jacques, Lea Wiggins

Vanderbilt Law Review

This Special Project examines the myriad forms of self-help currently available to persons in American society. It groups and discusses notable self-help rights, privileges, and remedies under topical classifications that parallel traditional jurisprudential categories. Parts H through VI of the Special Project sketch the legally fashioned contours and explore the legal, social, and political consequences of self-help methods in tort law, criminal law and law enforcement, commercial transactions, landlord-tenant relations,and family law matters. Part VII explores the attorney's role in the development and implementation of curative self-help procedures such as mediation. Special Project concludes by examining the function, mechanisms, and …

Book Reviews, David E. Kendall

Vanderbilt Law Review

The "violent human-interest story,"" that is, the crime story,has always been a great popular favorite: it is "news which appeals to the average person as the most interesting and exciting in the paper and on television."' In the past two decades, reporting on crime and the criminal justice process has ensnarled the press in a number of running battles with the courts. J. Edward Gerald's News of Crime: Courts and Press in Conflict recounts some of these conflicts. Gerald, who has taught journalism at a number of different universities, assays a short history of the controversies over prejudicial pretrial publicity, …

The Taxation Of Defamation Recoveries: Toward Establishing Its Reputation, David D. Willoughby

Vanderbilt Law Review

This Recent Development advocates that courts adopt the Ninth Circuit's Roemer approach to determine the nature of dam-ages for injury to reputation by focusing on the attack rather than the effects of the injury, but suggests that courts replace the Ninth Circuit's reliance on state law with a uniform standard. Part II of this Recent Development traces the evolution of the personal in-jury exemption and the confusing judicial treatment that courts have accorded economic damages which result from personal injuries. Part III of this Recent Development discusses the most recent treatment of economic damages by examining the Tax Court's decisions …

Rule 10b-5-Application Of The In Pari Delicto Defense In Suits Brought Against Securities Brokers By Customers Who Have Traded On Inside Information, Mark G. Strauch

Vanderbilt Law Review

This Note advocates that courts should permit tipper defendants to assert the in pari delicto defense in private 10b-5 cases against tippee plaintiffs unless one of the first three exceptions to the analytical framework applies. Part II of this Note discusses the purpose and application of the in pari delicto defense and the four situations in which courts have rejected it. Part II also illustrate show courts analyze the in pari delicto defense in contract, anti-trust, and non-10b-5 securities cases. Part III provides a general background on the purpose of the Securities and Exchange Act of 1934 and rule 10b-5, …

Judicial Review Of Agency Deregulation: Alternatives And Problems For The Courts, James T. O'Reilly

Vanderbilt Law Review

This Article takes a preliminary look at how deregulation has fared in the courts and at the significance of the evolving federal appellate and United States Supreme Court case law for future agency rule making decisions.

Part II of this Article examines the various categories of regulation and the aspects of each category that may be subject to deregulation.

Part III defines deregulation and explores some of the reasons why an agency may wish to deregulate. Part IV examines the utility of judicial oversight of deregulation, and part V then discusses the mechanics of deregulation, focusing on the various means …

Forced Disclosure Of Academic Research, J. Graham Matherne

Vanderbilt Law Review

This Note advocates that courts follow the procedures that rule 45 and its progeny provide to evaluate the special concerns of academic researchers, rather than rely on the Constitution to shield the academic researcher under the mystical guise of academic freedom. Part II of this Note examines the four cases in which federal courts have decided whether to force an academic to disclose his research. Part III focuses on the guidelines that the relevant Federal Rules establish for forced disclosure. Part IV discusses the academic freedom approach to forced disclosure and the common law and constitutional arguments that favor academic …

The Measure Of Recovery Under Rule 10b-5: A Restitution Alternative To Tort Damages, Robert B. Thompson

Vanderbilt Law Review

The thesis of the Article is that much of the confusion about rule 10b-5 remedies turns on the courts' failure to recognize adequately that the rule derives from two separate and independent sources at common law. Rule 10b-5 draws primarily on tort concepts that focus on harm to the plaintiff and limit recovery by principles of legal causation. In addition, the rule, like common-law fraud, traces its lineage to principles based on unjust enrichment. This second source focuses on the defendant's gain and requires the defendant to return all benefit received through the fraudulent transaction, even if that gain exceeds …

Lifting The Cloud Of Uncertainty Over The Repo Market: Characterization Of Repos As Separate Purchases And Sales Of Securities, William F. Hagerty, Iv

Vanderbilt Law Review

In light of the actual and potential financial harm that repo investors faced after failures of several repo market participants,this Note proposes a new legal characterization of repos and argues for adoption of proposed Bankruptcy Code amendments pertaining to repos. Both of these suggestions would give repo investors significant future financial protection without destroying the financially attractive characteristics of repurchase agreements.

Part II of this Note begins laying the foundation for this proposal by discussing current repo market problems that the failures of several repoissiers have exposed.

Part II discusses new policies concerning the appropriate uses of the collateral securities …

Efficiency Justifications For Personal Property Security, James J. White

Vanderbilt Law Review

It is always more interesting to challenge the received wisdom than to defend it. Yet in this case, a careful analysis of the facile assertions about the expansion of credit by the granting of security and about the other presumed efficiencies of security produces arguments and evidence that strengthen rather than weaken the efficiency arguments. In the first place, it appears that the granting of security does in fact expand the credit granted to risky debtors and thus that any efficiency equation must consider the probable benefits of such expansion. Second, a close examination of the actual experience not only …

Some Order Out Of Chaos In Wrongful Death Law, T. A. Smedley

Vanderbilt Law Review

In this Article, the author endeavors to outline a fair and manageable uniform law on wrongful death. Part II of this Article summarizes the historical development and inadequacies of the diverse types of wrongful death and survival laws in the United States.Part III explores the damages recoverable under the existing statutes. Part IV examines two significant proposals for reforming this area of the law. Finally, parts V and VI contain the author's suggestions for a fair yet manageable wrongful death statute that may serve all jurisdictions.

The Tort Liability Of Investigative Reporters, John W. Wade

Vanderbilt Law Review

One of the most significant developments in recent years, in both constitutional and tort law, began with the holding in New York Times v. Sullivan that the first amendment places substantial restrictions on the common law tort action for defamation. Although the ramifications of New York Times are still developing,that continuing reform of the law of defamation will result is to be expected. The readjustment of the balancing of conflicting interests that New York Times represents came about at the behest of the press,and the press have been the primary beneficiaries of these developments. Indeed, some commentators contend that the …

The Policy Implications Of Granting Patent Protection To Computer Software: An Economic Analysis, Jeffrey S. Goodman

Vanderbilt Law Review

This Note analyzes the propriety of granting patent law protection to computer software by viewing this problem from economic, legal, public and technological policy perspectives. Part II explains the relationship between computer hardware and software, discusses the role of algorithms in software development,and traces the development of the computer software industry.Part III analyzes the economic policies underlying the patent system. Part IV identifies the patent law principles that are relevant to the software patentability issue and discusses their underlying policy foundations. Part V examines the Supreme Court's application of these principles in the leading software patent cases and concludes that …

A Brave New World For Personal Jurisdiction: Flexible Tests Under Uniform Standards, Harold S. Lewis, Jr.

Vanderbilt Law Review

This Article accepts the challenge to unify personal jurisdiction theory by proposing an approach that accommodates both the contacts-based and noncontacts-based tests under uniform jurisdictional standards. The analysis builds on the major assumption,elaborated in part II, that the Supreme Court's decision in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee removed the principal barrier to a unified theory by ousting governmental interests from their long held place in personal jurisdiction decisions. The principal thesis is that International Shoe has made two general, lasting contributions to jurisdictional theory.First, International Shoe recognized, although less clearly than Ireland, that the goal …

Dbs Under Fcc And International Regulation, Paul B. Larsen, Ilise L. Feitshans, Loretta J. Garcia, Julie Kitser, Richard Heindle, Judith R. Larsen, Gerald Musarra, Kathleen A. Mcgill, Joan M. Mcgivern, Patrick Schmidt, Barbara L. Waite

Vanderbilt Law Review

This Article examines the legal and technological development of DBS in both the domestic and international fora. Part II examines the development of DBS and information policy concerning DBS in the United States. The Article then in part III discusses the international positions of the developed nations, the developing countries, and the Soviet bloc on the DBS issues and reveals the results thus far in the policy debate among these nations and the United States. Part IV concludes the Article with a brief outline of the possibilities for international cooperation to solve the DBS controversy.

Blanket Licensing Of Music Performing Rights: Possible Solutions To The Copyright-Antitrust Conflict, Mary K. Kennedy

Vanderbilt Law Review

This Recent Development compares Buffalo Broadcasting with other blanket licensing decisions and predicts the reversal of Buffalo Broadcasting on appeal. Part II of this Recent Development discusses the organization and operation of the performing rights societies. Part III focuses on the pertinent antitrust principles and the history of antitrust litigation between the performing rights societies and various licensees. Part IV examines recent decisions addressing blanket licenses in which courts have used similar analyses yet reached differing results. Part V analyzes possible solutions to the conflict between antitrust and copyright laws in the blanket licensing context and concludes that resolution of …

Constitutional Limitations On State Taxation Of Corporate Income From Multinational Corporations, Paul J. Hartman

Vanderbilt Law Review

This Article explores the Supreme Court's treatment, leading up to and including the Container decision, of state taxation of corporate income from multinational operations. Part II highlights the Court's development, prior to 1982, of the basic principles of federal limitations on the states' taxing powers that guided its decision in Container. Part III takes a more detailed look at two 1982 Supreme Court cases, ASARCO, Inc. v. Idaho State Tax Commission and F.W. Woolworth Co. v. Taxation and Revenue Department, in which the states suffered a setback in their efforts to extend the reach of their taxing powers over income …

A Tax Policy Analysis Of Bob Jones University V. United States, Charles O. Galvin, Neal Devins

Vanderbilt Law Review

This Article questions the tax policy model that the Court articulated in Bob Jones University. The authors believe that the Court's recognition of the primacy of IRS rule making is undesirable because the IRS, as an executive agency, is susceptible to the influence of the incumbent administration's policy objectives. Further, even though the life-tenured status of judges insulates the courts from external political pressures, significant problems a real so present in a model in which the courts occupy a primary role in formulating tax policy. In sum, Congress is better suited than either the courts or the IRS to determine …

The Parol Evidence Rule: Promissory Estoppel's Next Conquest?, Michael B. Metzger

Vanderbilt Law Review

The parol evidence rule, at first glance, seems to be such a candidate for many reasons. The parol evidence rule has confused" and dissatisfied legal scholars for a long time; for example, Professor Wigmore condemned the rule as "the most discouraging subject in the whole field of evidence."' Bringing the rule within estoppel's domain could simplify the application of the rule,' and legal scholars should appreciate anything that could clarify and rationalize its application. Furthermore, that promissory estoppel already has made substantial incursions into the province of the Statute of Frauds may portend a similar role for promissory estoppel in …

Human Leukocyte Antigen Testing: Technology Versus Policy In Cases Of Disputed Parentage, Patricia B. Blumberg

Vanderbilt Law Review

This Note assumes that the judicial trend of using HLA test results as affirmative evidence" will continue, and accepts the proposal that these results are scientifically reliable.' The Note will focus on the policy considerations and arguments that should affect the admissibility of the HLA blood test as affirmative evidence in various disputed parentage cases.This Note first examines the use of HLA test results to determine the paternity of illegitimate children who do not have a legal father, and concludes that courts should admit the results unconditionally in these circumstances. Second, the Note analyzes the use of the HLA blood …

The First Amendment And Nonpicketing Labor Publicity Under Section 8(B)(4)(Ii)(B) Of The National Labor Relations Act, Lee Goldman

Vanderbilt Law Review

This Article attempts to provide the appropriate constitutional analysis of restrictions on nonpicketing labor publicity. Part II describes the relevant statute and illustrative cases, including the Supreme Court's DeBartolo decision, that have raised but not resolved the first amendment issues concerning nonpicketing labor publicity. The cases focus attention on two restrictions the courts have imposed on nonpicketing labor publicity-the "producer-distributor" and the "for the purpose of" requirements. Part III analyzes the protected status of the nonpicketing labor speech by comparing nonpicketing labor publicity with labor picketing and commercial speech-two areas that bear superficial similarity to nonpicketing labor publicity and that …

Twisting The Purposes Of Discovery: Expert Witnesses And The Deposition Dilemma, Steven D. Parman

Vanderbilt Law Review

The system of discovery that the Federal Rules establish theoretically entitles all parties in civil actions, prior to commencement of trial, to disclosure of all relevant nonprivileged information in he possession of any person. Thus, federal discovery rules should not force litigants to choose between failing to depose a party-opponent's expert witness and thereby preparing inadequately for trial, and deposing the expert witness and consequently risking that opposing counsel will use the deposition against him at trial without the benefit of cross-examination. Part H of this Note reviews common law disagreement over the appropriateness of expert witness discovery and the …

Defending The Citadel: The Dangerous Attack Of "Reasonable Good Faith", Stanley Ingber

Vanderbilt Law Review

This Article presents arguments that are designed to influence the Court's deliberations, to create a basis for critiquing the Court's opinions once rendered, and to provide guidance for state courts, which soon may need to decide whether a good faith exception is consistent with their state constitutions and procedures. To place the subsequent discussion in context, part I of the Article briefly sketches the historical development of the exclusionary rule. Part II develops the general arguments against the exclusionary rule and the specific arguments in favor of a good faith exception. Part III exposes the conceptual flaws of the exception …

Federal Supervision Of State Water Quality Standards Under The Clean Water Act, Jeffrey M. Gaba

Vanderbilt Law Review

Renewed interest in an expanded role for water quality standards in the regulatory scheme has developed recently. This inter-est is due in part to the perception that the use of water quality standards is a particularly "cost-effective" approach to pollution control. At least in theory, water quality standards are set no higher than necessary to achieve the desired environmental goal.Further, as more and more industrial facilities achieve compliance with technology based requirements, attention has begun to focus on additional techniques including water quality standards, for imposing more stringent limitations." Finally, since states set water quality standards a regulatory scheme centered …

Rulemaking Under Section 14(E) Of The Exchange Act: The Sec Exceeds Its Reach In Attempting To Pull The Plug On Multiple Pro Ration Pools, David J. White

Vanderbilt Law Review

This Recent Development first considers the problems that gave rise to the adoption of revised rule 14d-8, the rationale that three members of the Commission articulated in support of the rule,' and the rationale of the two members who opposed it. The Recent Development then examines two judicial decisions, one that considers the validity of the current tender offer practices under the Williams Act and rule 14d-8'8 and another that analyzes the rule making authority of the SEC under sections 14(e) and 23(a) of the Exchange Act. Relying primarily upon congressional hearings and debates,' the Recent Development next discusses the …

Substantial Similarity Between Video Games: An Old Copyright Problem In A New Medium, Steven G. Mcknight

Vanderbilt Law Review

Courts have faced a variety of imaginative arguments advocating that video games not receive copyright protection but unanimously have rejected them. A more difficult copyright issue for courts has been deciding whether one video game illegally has copied another. Of the cases involving illegal video game copying that courts presently have decided, only Atari, Inc. v. North American Philips Consumer Electric Corp." has found copyright infringement by a video game that was not virtually identical to the original game.

Part II of this Recent Development discusses the requirement in copyright infringement actions that, in proving copying, a defendant's allegedly infringing …

First Amendment Protection Of Artistic Entertainment: Toward Reasonable Municipal Regulation Of Video Games, John E. Sullivan

Vanderbilt Law Review

This Note proposes that video game software, the driving force of all video game entertainment, is an artistic creation of a video game designer. Because the United States Supreme Court repeatedly has recognized that artistic expression and entertainment are forms of expression that the first amendment protects, video game software deserves first amendment protection. Video game software is the "heart and soul"" of the video game, and first amendment protection, therefore, also should blanket the game itself. Accordingly, free "speech" liberties give video game manufacturers, distributors, and operators a fundamental right to purvey the protected expression; and the public a …