Law Commons^™

The Uniform Product Liability Act--A Brief Overview, Victor E. Schwartz

Vanderbilt Law Review

There are many important aspects of the Uniform Act that have not been discussed herein including provisions on assumption of risk, punitive damages," and contribution among joint tort feasors. Nevertheless, the examples that have been given show that it is a law that attempts to balance the interests of product users and sellers. It is the Department's hope that state legislatures will give it serious consideration and that it will help bring about uniformity in the key areas of product liability law. As long as courts can retroactively create new and unprecedented product liability law, the specter of future product …

Defining The Parent's Duty After Rejection Of Parent-Child Immunity: Parental Liability For Emotional Injury To Abandoned Children, Reid H. Hamilton

Vanderbilt Law Review

Child neglect and abandonment are serious problems in the United States. The number of children in foster care in the United States has risen from a third of a million in 1971 to over 750,000 in 1979. A significant number of these children have been abandoned voluntarily and permanently by their parents. Abandoned children suffer marked psychological consequences; even after receiving the best available foster care, such children suffer adverse emotional effects throughout their adult lives.' Due to the traditional American rule granting parents immunity from personal injury suits by their minor children, abandoned children generally have been uncompensated for …

Defining The Government's Duty Under The Federal Tort Claims Act, Thomas A. Varlan

Vanderbilt Law Review

This Recent Development traces the Supreme Court's development of the analogous private liability test and examines the recent cases applying this test. The Recent Development then analyzes the divergent approaches taken in these cases and attempts to determine when an actionable duty arises under the Act.

Rethinking The Policies Of Strict Products Liability, David G. Owen

Vanderbilt Law Review

In the evolution of products liability law, therefore,should be the time for doing what usually comes late in the common-law process: to develop a system of fundamental social values and goals to be protected and advanced by the law in this area. Broadly stated, an appropriate balance between individual liberty and social welfare needs to be struck within a fair and workable adjudicatory system. Once a jurisprudential basis of this type has been set, we may then begin to develop a consistent set of principles tailored to this area of the law. It will then be possible to construct one …

Products Liability And Safety, Cases And Materials / Law, Intellect, And Education, Richard E. Speidel, Gene R. Shreve

Vanderbilt Law Review

Reviewed by Richard E. Speidel

In this brief review, I have attempted to determine whether this casebook makes the case for installing products liability and safety as an integral part of the law school curriculum. Admittedly, defective products pose an important social and legal problem with which lawyers are deeply involved. The question is, however, whether the casebook is, within the broader framework of contemporary legal education, both professionally relevant and educationally sound to a sufficient degree.

Reviewed by Gene R. Shreve.

This small book by a former dean of the University of Michigan Law School is the most confident …

American Trends In Private International Law: Academic And Judicial Manipulation Of Choice Of Law Rules In Tort Cases, Willis L.M. Reese

Vanderbilt Law Review

The Restatement attempts to provide as much guidance as it is believed the current state of the authorities will permit. Hard-and-fast rules of choice of law are stated in the few situations in which this was deemed possible . Elsewhere formulations of varying degrees of specificity are employed." Nevertheless, it cannot be denied that the principal weakness of the Restatement is the relatively little guidance that it affords. Properly viewed, it is a transitional document. It was written during a time of change and chaos when there was little indication of the direction that would betaken by future developments in …

On Product "Design Defects" And Their Actionability, John W. Wade

Vanderbilt Law Review

This Article has tried to explain and discuss these developments, to evaluate them, to show their relationship to the general state of the law, and to make suggestions on how far they should affect its future development. At present, the question of "design defects" and the determination of when a product is actionable because of the nature of its design appears to be the most agitated and controversial question before the courts in the field of products liability. I hope that this Article can be of some help to the courts in seeking to develop the most suitable answer to …

Liability For Proceeding With Unfounded Litigation, John R. Jones, Jr.

Vanderbilt Law Review

The important issues for this Note are the meaning of "good ground" and the nature of the sanctions available in a given case.One can conceive of many ways in which a pleading could lack good ground. At one extreme, -the attorney might know that the facts alleged were untrue."' Alternatively, the facts alleged, though not positively known to be untrue, might be based solely on speculation--as when the plaintiff, unsure who assaulted him, picked a name from the telephone directory on a hunch and sued that person." Between these egregious cases and the case in which the allegations have good …

Reconsidering Plaintiff's Fault In Product Liability Litigation: The Proposed Conscious Design Choice Exception, Vincent S. Walkowiak

Vanderbilt Law Review

The Uniform Comparative Fault Act, drafted by the National Conference of Commissioners on Uniform State Laws, was approved by the Commissioners in 1977. Dean John W. Wade was Chairman of the special committee that drafted the Act. The Act is a comparative-fault, rather than a comparative-negligence, act; it applies to all nonintentional torts, including products liability actions, whether they are based on negligence, breach of warranty,or strict tort liability. The Act seeks to address the problem of the relationship between the doctrines of comparative negligence and strict liability for products by permitting plaintiff's fault to effect a proportional reduction in …

Unmasking The Test For Design Defect: From Negligence [To Warranty] To Strict Liability To Negligence, Sheila L. Birnbaum

Vanderbilt Law Review

This Article will consider the problems engendered by imprecise judicial analysis of the notion of design defect. The central issues informing this investigation are as follows: (1) Can the notion of manufacturer fault or negligence be rationally eliminated in a design defect case? and (2) Should the term "unreasonably dangerous" be retained in the definition of defect in a design case, and if so, how should it be defined?

The Racketeer Influenced And Corrupt Organizations Act: An Analysis Of The Confusion In Its Application And A Proposal For Reform, Whitney L. Schmidt

Vanderbilt Law Review

This Note will first discuss the technical elements of a RICO violation and set forth the four separate crimes that constitute the statute's central provisions. After then examining RICO's crucial statutory definitions and the confusion reflected in their application, this Note will evaluate the various judicial interpretations of the statute and propose a solution for amending the statute that is harmonious with legislative intent and accommodates the needs of both society and the individual.

Let Them Be Judged: The Judicial Integration Of The Deep South / Federal Taxation Of Trusts, Grantors And Beneficiaries/, Steven F. Lawson, John H. Martin

Vanderbilt Law Review

Let Them be Judged: The Judicial Integration of the Deep South Frank T. Read and Lucy S. McGough

The manner in which federal judges in the South both retarded and promoted first-class citizenship rights for Black Americans is the topic of Frank Read's and Lucy McGough's 1978 work Let Them Be Judged: The Judicial Integration of the Deep South. The authors, law professors at the University of Tulsa and Emory University respectively, review in great detail the operation of the United States Court of Appeals for the Fifth Circuit in adjudicating the rapidly increasing volume of civil rights litigation after …

A Simplified Approach To Tying Arrangements: A Legal And Economic Analysis, Joseph P. Bauer

Vanderbilt Law Review

This Article will first examine the legal and economic theories applicable to tying arrangements. The Article will then examine the present confused state of the law, and will conclude by proposing a simplified test for evaluating future conduct. The Supreme Court has stated that "tying arrangements serve hardly any purpose beyond the suppression of competition."' If this is true, there is no logical justification for the two separate steps of the analysis, distinguishing the "existence" and "liability" issues; therefore, it is proposed that they be combined. In determining whether there is a tie,it may be relevant to determine whether the …

State Motor Vehicle Franchise Legislation: A Survey And Due Process Challenge To Board Composition, Gary M. Brown

Vanderbilt Law Review

This Note briefly traces the rise of the franchise as the primary automobile distribution device, the problems that confronted early dealers, and their subsequent inability to secure judicial relief. After examining dealers' efforts in the legislatures and the resulting statutes this Note points out several infirmities that exist regarding state automobile franchise regulation. The Note then focuses upon a particular constitutional challenge to state automobile franchise legislation. Finally, the Note concludes that such legislation is either genuinely ineffective or leads to the anomalous result that dealers assume more powerful positions with respect to their manufacturers through unconstitutional means. Based upon …

A Door In The Illinois Brick Wall - A Functional Equivalent To The Cost-Plus Contract Exception, David K. Herzog

Vanderbilt Law Review

In Mid-West Paper Products Co. v. Continental Group, Inc., I" the Third Circuit took the position that it would "not extend the exception beyond the limited circumstances recognized by the Supreme Court."" Accordingly, the court held that the use of passing-on theory is impermissible unless its proponent can show preexisting, fixed-quantity, cost-plus contracts at every level of the distribution chain, with the result that he absorbed the illegal overcharge in its entirety. In In re Beef Industry Antitrust Litigation, however, the Fifth Circuit declared that if the exception is confined to "cases involving literal cost-plus contracts," then it "is a …

Judicial Restrictions On Attorneys' Speech Concerning Pending Litigation: Reconciling The Rights To Fair Trial And Freedom Of Speech, Sally R. Weaver

Vanderbilt Law Review

The constitutionality of restraints on attorneys' speech has been considered by only two federal circuit courts: the Seventh Circuit, in Chicago Council of Lawyers v. Bauer,' and, more recently, the Fourth Circuit, in Hirschkop v. Snead.' Relying on many of the same precedents, the circuits nevertheless developed seemingly contrary standards. This Recent Development compares the analyses of these recent cases and suggests an appropriate standard for the accommodation of the conflicting rights of free speech and a fair trial.

Recent Publications, Unidentified Author

Vanderbilt Law Review

Beating a Rap? Defendants Found Incompetent to Stand Trial

In this book, Henry Steadman, Director of the Special Projects Research Unit of the New York State Department of Mental Hygiene, addresses the common suspicion that defense attorneys enable their clients to escape criminal charges by having the clients declared incompetent to stand trial. Such suspicion, he argues, results both from public confusion over the legal and psychiatric issues in a competency hearing and from a lack of understanding (even among experts) about the practical results that flow from a determination of incompetency.

Law and Order in American History Edited by …

Limited Partners' Derivative Suits Under The Revised Uniform Limited Partnership Act, Edwin W. Hecker, Jr.

Vanderbilt Law Review

The purpose of this Article is to examine the provisions of the 1976 Act that authorize limited partners' derivative suits. This examination necessarily must begin by tracing the development of derivative suits under the 1916 Act. With this background established the Article will proceed to analyze the relevant provisions of the 1976 Act.

Execution Without Trial: Police Homicide And The Constitution, Lawrence W. Sherman

Vanderbilt Law Review

This analysis of police homicide and the Constitution leads to the conclusion that the present state laws are unconstitutional, not just in the common-law states, but in the Model Penal Code and"forcible felony" states as well.' The present laws of every state in the union deny police homicide victims fifth and fourteenth amendment rights to due process, allow the punishment of death to be imposed in a cruel and unusual fashion, and appear to deny equal protection to blacks. The only constitutional alternative apparent is to remove police homicide from the realm of punishment and confine justification for it to …

There Is A Fountain: The Autobiography Of A Civil Rights Lawyer / Legal Regulation Of The Competitive Process, Leonard B. Boudin, Kenneth B. Germain

Vanderbilt Law Review

There is a Fountain: The Autobiography of a Civil Rights Lawyer Reviewed by Leonard B. Boudin --

This book is unlike other good legal autobiographies, such as those of D.N. Pritt,' Clarence Darrow, and more recently Charles Morgan," for Lynn throughout his life was very poor, a radical and,most importantly, Black. Those portions of his autobiography that recount his political life in college and in later years make exciting and important reading. Lynn was the only member of the Young Communist League at Syracuse University in the early 1930s, and was a member of the American Communist Party in his …

The Fiduciary Responsibilities Of A Surviving Partner Acting As Executor Of The Deceased Partner's Estate, Sandra L. Randleman

Vanderbilt Law Review

This Note examines the nature of the fiduciary duty in the situation in which an executor/surviving partner must decide whether to consent to a continuation of the partnership business after dissolution and in the situation in which the surviving partner has an option to purchase the deceased partner's interest in the partnership under the terms of a partnership agreement. After separately considering the nature of the fiduciary duties of an executor and a surviving partner, the Note discusses the degree to which the fiduciary loyalty that an executor/surviving partner owes the deceased partner's estate governs his decision on whether to …

Usury Legislation - Its Effects On The Economy And A Proposal For Reform, Mark B. Riley

Vanderbilt Law Review

This Note examines both the original and current purposes of general usury ceilings and evaluates the success of the ceilings in achieving these purposes. In addition, the Note considers the impact of the present form of usury legislation on the economy of those states that have such ceilings and proposes a model usury statute that attempts to accomplish the social policy objectives of the current legislation while also minimizing detrimental and unintentional effects on the economy...

This Note suggests that the proposal outlined above would solve the majority of the problems created by the present statutory form. The proposal recognizes …

Relative Value Guides And The Sherman Antitrust Act, David R. Simonsen, Jr.

Vanderbilt Law Review

The skyrocketing costs of health care services for the American people constitute a crisis of national importance.' The seriousness of this crisis is reflected in the attention that antitrust enforcement agencies of the federal government are giving to the health care industry. The agencies are responding, at least in part, to the common perception that these skyrocketing costs result as much from the restrictive trade practices of the health care industry as from the growing use of sophisticated technology and inflation. Competition is viewed as an antidote to increasing prices and antitrust laws as the vehicle by which federal agencies …

Recent Publications, Paul Heng-Chao Chen, Paul Hoffman, Gilbert Sharpe, Glenn Sawyer, Leon Friedman, Catharine A. Mackinnon, Edward Dumbauld

Vanderbilt Law Review

Chinese Legal Tradition Under the Mongols: The Code of 1291 as Reconstructed. By Paul Heng-chao Ch'en

The author's analysis of the "New Code" leads him to two conclusions: that the Yuan penal system was more lenient than its predecessors in imposing lesser punishments for minor offenses, and that the Mongol-Chinese partnership of the Yuan dynasty developed one of the most impressive and mature judicial systems that imperial China ever had for the administration of justice. He therefore argues that Chinese law in the time of Marco Polo was much less barbaric than has traditionally been thought.

Courthouse. By Paul Hoffman. …

Agencies In Conflict: Overlapping Agencies And The Legitimacy Of The Administrative Process, Louis J. Sirico Jr.

Vanderbilt Law Review

This Article demonstrates how multi-agency decision making can enhance the legitimacy of the administrative system. After discussing the meaning of legitimacy in a highly stable society, it analyzes multi-agency decision making process from the perspective of the political scientist. I particularly emphasize "partisan mutual adjustment" analysis, which views the system as adjusting continually to the conduct of interacting participants. This theory comports not only with the pluralistic, pressure politics model of American government, but also with the methodology of classical economics, which celebrates the product of competing, conflicting interests.The Article concludes by demonstrating that the multi-agency process can increase legitimacy …

General Laws, Neutral Principles, And The Free Exercise Clause, G. Michael Mccrossin

Vanderbilt Law Review

This Note examines several recent Supreme Court decisions considering the first amendment's free exercise clause to determine whether, collectively, the decisions are results of principled decision making. During the past two decades the Court has had four significant opportunities to deal with the free exercise clause. In all but one, the Court made important statements about the constitutional protection afforded the free exercise of religious belief. In each case the basic issue was the same: was interference with the exercise of religion unconstitutional when that interference resulted from the application of a general law that promoted a valid public policy …

The Reclaiming Seller Under The Bankruptcy Reform Act: Resolution Or Renewal Of An Old Conflict?, Richard A. Mann, Michael J. Phillips

Vanderbilt Law Review

This Article will assess the impact of the Bankruptcy Reform Act upon the conflict of the Code cash and credit sellers with the trustee in bankruptcy. The article will begin by discussing the legal position of the reclaiming seller at common law, both because the new Act's interaction with the Code cannot be understood without reference to such doctrines, and because these doctrines are often likely to be of continued applicability under the new Act. It will then examine the seller's rights under the U.C.C., and will discuss his relations with certain bankruptcy-relevant Code third parties. Following this, the Article …

Federal Estate And Gift Taxation Of Joint Interests: Planning And Policy Perspectives, Hugh D. Brown

Vanderbilt Law Review

This Note will first provide a brief background outlining the incidents of joint tenancy which make it an attractive form of co-ownership under state law. This background section also will place joint ownership in the overall perspective of federal estate and gift taxation by pointing out the impossibility of achieving certain basic federal estate planning objectives in an estate composed primarily of jointly held assets. The Note will then analyze the specific provisions of the Internal Revenue Code governing federal estate and gift taxation of joint interests. This analysis will: first, focus on some of the legal problems generated by …

Book Reviews, Morris L. Cohen, Judith T. Younger

Vanderbilt Law Review

Dictionary of Legal Abbreviations Used in American Law Books by Doris Bieber

The proliferation of legal sources and abbreviations poses two related problems--first, the need for standardized citation forms,and second, the need for guides to commonly used abbreviations. The first problem has been difficult to solve, and universal acceptance of standard citations is unlikely to be achieved. A Uniform System of Citation, published by the Harvard Law Review Association, in collaboration with the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal, has attained wide acceptance and has become the authoritative guide for legal citations …

Inconsistency In The United States Courts Of Appeals: Dimensions And Mechanisms For Resolution, Stephen L. Wasby

Vanderbilt Law Review

This Article is based on an extensive study of the United States Courts of Appeals for the Eighth and Ninth Circuits that focused on two interrelated questions. The first question was how judges in geographically large circuits communicate with each other when they are not all stationed in the same city.' The focus of this Article is on the second question-the problem of intracircuit inconsistency. The study is based on largely open-ended interviews with the Ninth Circuit's active-duty and senior circuit judges and with some active-duty and senior district judges who had sat most frequently with the court of appeals …