Law Commons^™

Justice On The Tennessee Frontier: The Williamson County Circuit Court 1810-1820, Cornelia A. Clark

Vanderbilt Law Review

This Note examines the history of one early nineteenth-century circuit court and the caliber of its bench and bar. To analyze the workings of that court, this Note applies the analytical framework adopted by Friedman, Blume, and other historians to the raw data provided by a study of the Williamson County Circuit Court records. In each of several substantive areas for which the court's records provide information, the Note first considers Friedman's generalizations about nineteenth-century law and then interprets the Williamson County data in the light of those generalizations and the results of other case studies. This Note proceeds on …

Book Review -- Federal Courts In The Early Republic, Randall Bridwell

Vanderbilt Law Review

FEDERAL COURTS IN THE EARLY REPUBLIC: KENTUCKY 1789-1816.

By Mary K. Bonsteel Tachau.

Princeton, New Jersey: Princeton University Press, 1978. Pp. ix, 234. $16.50.

Reviewed by Randall Bridwell

Southern Violence-Regional Problem Or National Nemesis?: Legal Attitudes Toward Southern Homicide In Historical Perspective, Richard M. Brown

Vanderbilt Law Review

Both inside and outside the South, was the law a cause of the high incidence of homicide, or was it an effect? It was probably more effect than cause, for despite the anti-homicide rigor of its supreme court, on the whole the incidence of killing in Alabama seems to have been no lower than elsewhere in the South. Thus, the conservative Alabama court apparently failed to stem not only the legal trend of the Americanization of the common law of homicide but also the trend of blood-letting in Alabama. In one way this is not surprising, for after all, the …

Comment: Law And Disorder In Nineteenth-Century Kentucky, Mary K. Bonsteel Tachau

Vanderbilt Law Review

Robert M. Ireland's Article, "Law and Disorder in Nineteenth-Century Kentucky," centers on the state constitutional conventions of 1849 and 1890-1891, spiced with newspaper accounts, statutes,court cases, and legislative records. He has said that his Article presents a preliminary overview of some of the principal problems of the criminal justice system of nineteenth-century Kentucky. I hope this means he intends to continue his study so that soon we can expect a full examination of the criminal justice system in that state. I also hope that other scholars then will be inspired by his example to examine other contemporary state criminal justice …

Foreword, James W. Ely, Terry Calvani

Vanderbilt Law Review

In the hope of giving some direction for a regional approach to the legal past of the South, Vanderbilt Law School, with the generous assistance of the University Research Council, sponsored a two-day Symposium on this important topic in the spring of 1978 and invited leading scholars to participate. Principal papers by Richard Maxwell Brown, Maxwell H. Bloomfield, Robert M. Ireland, A. E. Keir Nash, and Robert J. Haws and Michael V. Namorato discussed diverse aspects of southern legal history.

Reason Of Slavery: Understanding The Judicial Role In The Peculiar Institution (Part One), Robert B. Jones

Vanderbilt Law Review

This brief survey has superficially touched upon the most prominent works of the historiography of slavery and has ignored the large mass of work on subjects such as slavery in the various states, slave rebellions, slave reminiscences, and the anti-slavery crusade. With the exception of the Civil War, perhaps more has been written about slavery than any other aspect of southern history. Despite the great amount of scholarship devoted to the study of slavery, however, there has been, as Keir Nash points out, little scholarly work done on the legal history of slavery. One hopes this gap will be bridged …

Comment: Southern Violence-Regional Problem Or National Nemesis?: Legal Attitudes Toward Southern Homicide In Historical Perspective, Dennis R. Nolan

Vanderbilt Law Review

The preceding pages should indicate that Southern Violence is a disappointment to those of us whose expectations had been raised by Professor Brown's earlier works and to those who are interested in his stated topic. It is a thoroughly unfocused, loose collection of facts and incidents that will interest only those with a curiosity about Alabama's Chief Justice Stone or the Texas law of self-defense. The paper does contain several seeds of thought that might,if given adequate attention, grow into testable hypotheses. Those hypotheses will be hard to evaluate, but they are of immense importance because they concern the fundamental …

Comment: The Texas Bar In The Nineteenth Century, Mary K. Bonsteel Tachau

Vanderbilt Law Review

Maxwell H. Bloomfield's Article, "The Texas Bar in the Nineteenth Century," presents an ingenious collage of information derived from more or less standard kinds of secondary works, interspersed with excerpts from the diary of a Texas lawyer and the brotherly correspondence of another, and highlighted with statistical data from the manuscript censuses of 1850, 1860, and 1900.Although the evidence centers on Galveston, the careers of William Pitt Ballinger and Alfred Howell, and the Texas Bar Association movement, Professor Bloomfield's skill in creating a series of vignettes leaves us with impressions of the entire bar for fifty years of what was …

Reason Of Slavery: Understanding The Judicial Role In The Peculiar Institution, A. E. Keir Nash

Vanderbilt Law Review

The results most relevant to the concerns of this Article are of course the effects upon how we judge the judges-for almost always we are sufficiently Whiggish to attempt such a judgment, either explicitly or implicitly. At times the consequence of so summing can be to imagine that one catches the judicial conscience by asking questions phrased as Sentence D's query, whether the judges"collaborated" in a system of racial oppression. When we put the question this way, two unfortunate things happen. First, we create a verbal and historical muddle, for if anything ought to be clear by now it is …

Comment: Race, Property Rights, And The Economic Consequences Of Reconstruction, Robert B. Jones

Vanderbilt Law Review

Professors Haws and Namorato are to be praised for their pioneer work in studying the operation of a county court system in the Reconstruction era. They break new historical ground in this effort that has the potential for greatly contributing to the study of the legal history of the South. More scholars must engage in this endeavor if the field of legal history is to reach its full maturity. While their efforts are to be complimented it must be pointed out, however, that they generally fail to make their case in this Article. They do not show a significant link …

St. George Tucker, John Marshall,And Constitutionalism In The Post-Revolutionary South, Charles T. Cullen

Vanderbilt Law Review

A study of Marshall's early career suggests several reasons for constitutionalism fundamentally different from that of Tucker, a constitutionalism that became law in the early Republic because of Marshall's position on the Supreme Court. The writings and careers of southern constitutionalists like Tucker also merit further study in order to fully appreciate the growing divergence between the views originally expressed by him and those embraced by the nationalists, who decreased in number in the South after Marshall's time. Finally, we should develop a better understanding of the influence of southerners on the formation of legal and constitutional systems in other …

The Tennessee County Courts Under The North Carolina And Territorial Governments: The Davidson County Court Of Pleas And Quarter Sessions, 1783-1796, As A Case Study, Theodore Brown Jr.

Vanderbilt Law Review

This Note will attempt to provide the framework for a more extended institutional examination of the post-revolutionary courts that functioned in the counties of western-most North Carolina and,beginning in 1790, the Territory South of the River Ohio before their organization into the new state of Tennessee in June 1796. The Note initially will set forth the jurisdiction and the regulatory authority of the county courts of pleas and quarter sessions under the North Carolina and territorial governments, will describe the jurisdiction and authority of the courts' individual justices, and will examine the role of the petit jury in exercising a …

Race, Property Rights, And The Economic Consequences Of Reconstruction: A Case Study, Robert J. Haws, Michael V. Namorato

Vanderbilt Law Review

In assessing the problems of race and debtor relief in Mississippi during Reconstruction, it is clear that, on the local level, the Lafayette County court system, as represented by the Lafayette county court, effectively carried out an institutional framework established by the Mississippi legislature and the Mississippi Supreme Court in which the freedman was denied any meaningful role and/or opportunity in the economic environment of the community.In doing so, the county court system, by allegedly protecting the rights of private property, helped stifle the economic recovery of Lafayette County and, inferentially, the State as a whole. Moreover, by quickly acting …

The Texas Bar In The Nineteenth Century, Maxwell Bloomfield

Vanderbilt Law Review

As the twentieth century approached, bar leaders increasingly complained that the open bar, like the open range, had outlived its usefulness. In 1899 the Texas Bar Association began a vigorous lobbying effort for more restrictive regulation of attorneys. The state legislature responded four years later with a bill that required all future bar candidates to take a standardized written examination.The results of this new approach were immediate and gratifying to those who clamored for a more exclusive profession. While approximately four hundred candidates had applied for, and obtained, a license between August 1, 1896, and August 1, 1897, only ninety …

Law And Disorder In Nineteenth-Century Kentucky, Robert M. Ireland

Vanderbilt Law Review

Nineteenth-century Kentuckians responded paradoxically to their criminal justice system. Although they complained constantly about the inadequacies of their constabulary, they refused to appropriate funds necessary to establish more efficient police forces. And while they carped continually about the ineffectiveness and ineptitude of prosecutors, the slowness and timidity of judges, the permissiveness of juries, and the leniency of governors, they also expressed equal concern about the rights of the accused and the convicted. By their ambivalence, nineteenth-century Kentuckians reflected an internal conflict that historically has characterized the response of Americans to the problem of crime. A free and dynamic society inevitably …

Essays On Problems And Prospects In Southern Legal History, Kermit L. Hall

Vanderbilt Law Review

Justice Oliver Wendell Holmes, Jr., once urged historians to study the law because it offered a magic mirror whose reflections divulged fundamental social values.' Holmes' plea on behalf of the utility of legal history has relevance for southerners intrigued by the possibility of their historical distinctiveness. Without a basis of comparison, however, the search for southern exceptionality becomes a quest after the arcane. As C. Vann Woodward observed,southern history ought to tell all Americans, not southerners alone,something about their common pasts. Woodward argued that attaining this goal was entirely feasible, since certain aspects of the southern past, such as slavery …

Corporal Punishment In Public Schools: Constitutional Challenge After Ingraham V. Wright, Charles L. Schlumberger

Vanderbilt Law Review

Corporal punishment has been employed to maintain discipline and order in American schools since the colonial period.' During that era, the practice was not restricted to the classroom: corporal punishment was the generally accepted mode of correction for practically every civil and criminal offense. Attitudes toward correction did not begin to change until after the American Revolution. Since then, corporal punishment has been steadily discarded as a method of correction in both prisons and the military. Despite discontinuance in these areas, corporal punishment remains a well-established facet of the American educational process. Only a few states and municipalities have legislative …

State Buy-American Laws - Is There A Judicial Solution?, George C. Lamb, Iii

Vanderbilt Law Review

State buy-American statutes are among the most peculiar of legislative responses to problems of unemployment and low levels of economic growth in the United States. Designed to decrease unemployment among American workers by promoting the development of American industry, the statutes typically require that purchasers of goods to be used in state-subsidized projects prefer products manufactured in America over those made in foreign countries, often regardless of price or quality.' State buy-American statutes are presently in effect in a number of states, despite criticism that they constitute devices of economic protectionism for domestic goods and barriers to a unified United …

Proposed Legislative Solutions To Tax Shelter Partnership Abuses - The End Of The Aggregate Concept?, Thomas E. Settles

Vanderbilt Law Review

This Note first will set forth the Treasury Department's perception of the present abuses of tax shelter partnerships and will analyze existing procedural rules, the Treasury Department's proposed amendments, and the House of Representatives' proposed amendments in light of these abuses. Next, the Note will examine the substantive law of Subchapter K and will attempt to point out the probable effects of the proposed amendments on the aggregate concept of partnerships, on substantive partnership tax law, and on the viability of the partnership form of business. Finally, this Note will propose a solution to the problem of tax shelter partnership …

Implied Private Right Of Action Under Section 17 Of The Securities Exchange Act Of 1934, Andrew Bor

Vanderbilt Law Review

The Securities Exchange Act of 1934 created the Securities and Exchange Commission (SEC) and vested it with broad regulatory and enforcement powers. While one of the purposes of the Act is to protect investors, the SEC has long recognized that it lacks the resources to fully accomplish that goal. Consequently, plaintiffs injured by actions in violation of the Act have sought remedies in the federal courts that have been willing to imply private rights of action under the securities laws. Recently, however, the Supreme Court has indicated that it will restrict the scope of remedies available to private litigants, thus …

Recent Publications, Journal Staff

Vanderbilt Law Review

Bar Admission Rules and Student Practice Rules

Edited by Fannie J. Klein with contributions by Ms. Klein, Steven H. Leleiko, and Jane H. Mavity

In this single volume, the Council on Legal Education for Professional Responsibility provides the first comprehensive collection of state and federal bar admission and law student practice rules. - - - - - - - - -

Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies

By Stephen Wasby, Anthony D'Amato,and Rosemary Metrailer.

In 1954, the United States Supreme Court in Brown v. Board of Education (Brown I) held that "separate" education for blacks …

Post-Dissolution Liabilities Of Shareholders And Directors For Claims Against Dissolved Corporations, D. Gilbert Friedlander, P. Anthony Lannie

Vanderbilt Law Review

This Article initially will explore the nature and extent of shareholders' and directors' liabilities for contingent claims against the dissolved corporation by examining section 105 of the Model Business Corporation Act and the case law of those states that have adopted the Model Act.' Two purposes underlying the Model Act are uniformity and progressive resolution of issues inadequately resolved by the common law or earlier statutes. An exhaustive analysis of the case law under section 105 of the Model Act, however,reveals that both purposes have been frustrated, if not defeated. First, uniformity among jurisdictions, as well as within each Model …

Denial Of Standing To Private,Noncommercial Consumers Under Section 4 Of The Clayton Act, David L. O'Daniel

Vanderbilt Law Review

The Sherman Act and the Clayton Act are efforts by Congress to promote a free and competitive economy and to compensate those injured by anticompetitive activities. To supplement government enforcement, section 7 of the Sherman Act provided a means of combating antitrust violations through private treble damage actions. Section 4 of the Clayton Act, which superseded section 7 of the Sherman Act with only slight modification, provides for treble damage actions by "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws"....

In light of the uncertainty regarding private consumer …

Plaintiff's Standard Of Care After Hochfelder: Toward A Theory Of Causation, Robert P. Bryant

Vanderbilt Law Review

The extended debate by the Institute illustrates the logical and even emotional difficulty of dealing with the victim of an admittedly intentional deception who has acted foolishly in his own behalf and does not seem to deserve recovery. The crux of the controversy in the common law deceit cases mirrors that in the 10b-5 cases:should the victim have to investigate, and what might trigger an obligation to investigate? As this discussion demonstrates, tort principles provide some guidance. In deceit cases, the obligations placed on the plaintiff arise from the requirement that his reliance be justified. To the extent that his …

Reference Guides To State Legal Bibliography: A Composite Review, Marvin R. Anderson

Vanderbilt Law Review

At present, the curriculum at almost all law schools includes a first-year course teaching the fundamentals of the legal method.The practical value of these courses, however, has been questioned. One criticism of the current course structure is the overemphasis placed on the basics of legal research and legal writing to the detriment of legal bibliography.More pertinent to this review is another practice of these classes-the use of certain national-in-scope legal research texts that cannot treat fully the many special characteristics of published legal materials in the various states. To know that states have similar publishing practices for codes, session laws, …

Alternatives To Absolute Termination Of Parental Rights After Long-Term Foster Caret, Andre P. Derdeyn, Andrew R. Rogoff, Scott W. Williams

Vanderbilt Law Review

This Article will explore in detail the variety of child placement arrangements, both within and outside the system, which can be tailored to meet the needs of children and their biological or foster parents. This examination will reveal numerous statutory reforms and recent judicial decisions that promise increasingly flexible approaches to the traditional custodial alternatives following long-term foster care. Particular emphasis will be devoted to the termination of parental rights case that first united the authors and confronted them with the fact that none of the traditional legal alternatives available to those children could adequately meet their emotional needs.

Competing Merger Offers - Disclosure And Related Problems, Law Review Staff

Vanderbilt Law Review

An attractive company that makes known its desire to find a merger partner or announces an agreement in principle to merge with another corporation is likely to receive multiple inquiries or multiple offers from acquisition-minded corporations. This Note examines various problems and duties confronting a publicly held company' that receives multiple merger inquiries and offers. The starting point for this analysis is one court's directive that a proxy statement soliciting shareholder approval of a merger recommended by management must disclose competing merger offers from third parties if such offers are "definitive" and "may" be more advantageous to the shareholders than …

Natural Gas Rate Design: A Neglected Issue, Richard J. Pierce, Jr.

Vanderbilt Law Review

The theses of this Article are: (1) the present method of allocating natural gas costs among consumers produces significant allocative inefficiency that has contributed to the present problems in the natural gas market and is certain to create even greater problems in the future; (2) the new rate designs suggested over the past years in regulatory and congressional debates would do little to eliminate the allocative inefficiency inherent in present rate designs and would introduce unnecessary collateral problems; (3) several approaches to the rate design issue potentially could eliminate or greatly reduce allocative inefficiency at a tolerable cost; and (4) …

Section 243 And Bootstrap Sales: The Dilemma Of The Corporate Shareholder, Don B. Cannada

Vanderbilt Law Review

The differences in the tax treatment of dividends and redemptions, the tax goals of individual and corporate shareholders, and the characterizations given corporate distributions by the Internal Revenue Service and the courts have combined to create over-whelming confusion for corporate bootstrap sales. The purpose of this Note is to formulate a rational, consistent approach to the tax treatment of corporate bootstrap sales. Accordingly, this Note initially will discuss various lines of cases governing the possible tax treatment of the seller in a bootstrap acquisition. Special emphasis will be placed on the recent line of cases that deny section 243 intercorporate …

The Inheritance Of Economic Status - By John A. Brittain, Michael R. Olneck

Vanderbilt Law Review

The Inheritance of Economic Status - by John A. Brittain

In the- mid-1960's and in the early 1970's, research results appeared that challenged conventional liberal beliefs about the causes and consequences of poverty. In 1966 the federal government published Equality of Educational Opportunity, a report prepared by James Coleman and his associates.' The data used in the report contained the startling result that, with some exceptions, within regions, the provision of educational resources was substantially uniform across racial and socioeconomic groups. Moreover, the data showed that what measurable differences existed between the schools attended by disadvantaged and advantaged students did …