Law Commons^™

Theodore A. Smedley And The Race Relations Law Reporter, Paul H. Sanders

Vanderbilt Law Review

Beginning in 1959, Ted Smedley served with personal distinction and national recognition as Director of the Race Relations Law Reporter and as Director and Editor of the successor publications,the Race Relations Law Survey and the Race Relations Law Index. Professor Smedley, who joined the Board of Editors of the Race Relations Law Reporter in the fall of 1957 as one of three Associate Directors, engaged in editorial activities in this dynamic and sensitive area over a seventeen-year period, an era marked by tremendous ferment and revolutionary change. The quality of his work is evident in the words published within the …

The Old Order Changeth, Theodore A. Smedley

Vanderbilt Law Review

The publication of this Symposium in 1978 marks the tenth anniversary of the final publication of the Race Relations Law Reporter. The timing of the Symposium is particularly appropriate for another reason as well. In 1968, the National Advisory Commission on Civil Disorder, commonly known as the Kerner Commission,issued a report that had been requested by President Lyndon B.Johnson in July 1967. The Commission, which was to investigate the underlying causes of the riots that plagued America's larger cities during the 1960's, offered the pessimistic conclusion that "Our Nation is moving toward two societies, one black, one white-separate and unequal." …

The Implications Of "Resegregation" For Judicially Imposed School Segregation Remedies, Charles T. Clotfelter

Vanderbilt Law Review

This Article examines the implications of changing racial patterns--particularly those tending to resegregate schools--as they bear on the formulation of judicial remedies for school segregation. The Article considers both the effect of changing residential racial patterns upon racial patterns in schools and the effect of school desegregation upon the level of white enrollment. A third question that also may be relevant in this connection concerns the extent to which the possible existence of such resegregation constitutes a legitimate consideration in school desegregation cases. For example,fourteenth amendment requirements may render white flight a wholly irrelevant factor in some desegregation cases. This …

Individual Liability Of Agents For Corporate Crimes Under The Proposed Federal Criminal Code, Stephen D. Goodwin

Vanderbilt Law Review

In discussing the contours of individual liability under section 403, this Note has not attempted to criticize the section's draftsmanship or counsel against its adoption. The philosophy of liability reflected in section 403 wisely avoids the imposition of vicarious liability on corporate officials. The defendant's personal misconduct, failure to act, or reckless failure to supervise invoke the sanctions of the provisions. In addition, subsections (b) and (c) provide a theoretical underpinning for punishing omissions that is preferable to the indicia of artificial "participation" relied upon in former state and federal cases.

This Note has also attempted to establish some limitations …

Recent Cases, Daniel P. Smith, R. Michael Moore

Vanderbilt Law Review

Courts Split on the Necessity of Separate Authorization for a Covert Entry Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968

Daniel Paul Smith

Title III of the Omnibus Crime Control and Safe Streets Act of 1968,' which regulates the use of electronic surveillance, was designed to protect "the privacy of wire and oral communications,"and to delineate "on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized."' In general, communications may be intercepted only by law enforcement officers, who are engaged in the investigation of …

Simple Justice In The Cradle Of Liberty: Desegregating The Boston Public Schools, Ronald R. Edmonds

Vanderbilt Law Review

This Article provides a summary view of the desegregation of the Boston public schools. Some aspects of teaching and learning in the Boston schools clearly have improved as a direct consequence of Boston's desegregation, while others seem little affected. Teaching and learning are mentioned at the outset because later discussion will establish that black Bostonians seek desegregation as part of their larger and more general quest for improved schooling for their children.' The success or failure of desegregation therefore may fairly be judged partly on the basis of its effect upon the quality of schooling made available to black children. …

Ted Smedley And The Law School, John W. Wade

Vanderbilt Law Review

Ted Smedley had been a member of the faculty at Washington and Lee for eighteen years when he accepted our invitation to come to Vanderbilt. We wanted him to become Director of the Race Relations Law Reporter and to teach some of his customary courses. His coming may well have been the most felicitous occurrence for the school in the 1950's... Ted's work in the field of race relations extended beyond publishing the Reporter. He also taught a seminar on varying aspects of the field some five or six times and gave addresses and informal talks on the subject to …

The Interstate Agreement On Detainers: Defining The Federal Role, Janet R. Necessary

Vanderbilt Law Review

In 1970, Congress enacted into law the Interstate Agreement on Detainers Act, making the United States and the District of Columbia parties to the interstate compact already adopted by 37 states.' The purpose of the Agreement is to "encourage the expeditious and orderly disposition" of charges underlying detainers by providing procedures by which prisoners may request disposition of such charges and prosecuting jurisdictions may obtain the presence of prisoners for trial. Recently problems of interpretation have surfaced as the federal courts have endeavored to define the role of the United States under the Agreement. The courts of appeals presently disagree …

Civil Rights And Race Relations, Kevin J. Wolff

Vanderbilt Law Review

This Symposium honors both Professor Theodore A. Smedley and the publication he served as director, the Race Relations Law Reporter. As Professor Smedley's own introductory remarks point out, the publication of this Symposium in 1978 is particularly appropriate. First, it marks the tenth anniversary of the final issue of the Reporter, a journal whose importance and usefulness to the civil rights field is well known to all who have been active in the area. In publishing this Symposium, Vanderbilt Law School continues an important tradition in which Professor Smedley has played a major role.

Current State Action Theories, The Jackson Nexus Requirement, And Employee Discharges By Semi-Public And State-Aided Institutions, Thomas R. Mccoy

Vanderbilt Law Review

The purpose of this Article has been to reestablish the continued vitality of the several branches of the state action doctrine in the face of recent decisions that have strained noticeably to avoid implementation of one or more elements of the doctrine, often by an illogical insistence on the application of the Jackson nexus requirement. At least in the employment discharge cases, the regular findings of no state action should not be read as casting doubt upon the continued viability of the various elements of state action doctrine, much less as indications that all elements except state-action-by-state-regulation are so obviously …

Administrative Coordination In Civil Rights Enforcement: A Regional Approach, Charles M. Lamb

Vanderbilt Law Review

The failure of traditional coordinative efforts among federal agencies suggests that new and different approaches are imperative. This Article has emphasized a regional approach for solving these problems. Experience has shown that even well-intentioned and capable administrators in Washington cannot alone ensure compliance with the federal civil rights laws. They must have the full support of key regional officials of the federal government, and they must have a certain degree of cooperation from state and local officials. One means of gaining this support and assistance is through the Councils, which bring together in one forum high-level federal, state, and local …

A Comparative Review Of Public And Private Enforcement Of Title Vii Of The Civil Rights Act Of 1964, Robert Belton

Vanderbilt Law Review

The efforts of the EEOC, the Department of Justice, and other federal and state agencies during the first decade of enforcement have been the subject of a great deal of commentary and review. Much of this commentary has been critical. Private enforcement of Title VII has produced the major legal developments, but these efforts have received little attention in the literature. This Article therefore will present a comparative review of governmental and private enforcement efforts under Title VII. A brief overview of the historical efforts to eliminate employment discrimination prior to Title VII is necessary to place private enforcement efforts …

Some Intersections Of The Negative Commerce Clause And The New Federalism, James F. Blumstein

Vanderbilt Law Review

Much has been written about the change in the Supreme Court's judicial philosophy, as a new, ascendant majority has been able successfully to implement its emerging notions of judicial reticence and self-abnegation. This fundamental turnabout in judicial perspective is hardly coincidental, since it reflects the fulfillment of an oft-repeated campaign pledge of Richard Nixon, who in 1968 promised, if elected, to appoint so-called strict constructionists to the Court.' In a basic way his appointees have succeeded in modifying the activist stance that prevailed on the Court during much of the tenure of Earl Warren as Chief Justice. With notable exceptions …

Section 337 Sales As Part Of Reorganizations, James H. Lokey, Jr.

Vanderbilt Law Review

This Note demonstrates that by applying the meaning of "complete liquidation" developed in several liquidation-reincorporation cases to the obviously distinguishable facts of FEC, the Court of Claims has adopted an unnecessarily restrictive view of section 337's "complete liquidation" requirement...

This Note has demonstrated that although the liquidation-reincorporation cases appear to support the traditional view that a "complete liquidation" cannot occur during a reorganization, when taken in context they are weak authority for the holding in FEC.

Recent Cases, James S. Hutchinson, James R. Newson, Iii, Andrew W. Byrd, Judith Mi. Janssen, John E. Tavss

Vanderbilt Law Review

Civil Procedure--Attorney-Client Privilege-- Privilege Protects Communications Made by Corporate Employee To Secure Legal Advice and a Matter Committed to a Professional Legal Advisor Is Prima Facie Committed To Secure Legal Advice

James S. Hutchinson

attorney-client privilege, the "predominance" test, legal activities

In summary, courts have not yet resolved how to determine who may qualify as the corporate client for purposes of the attorney-client privilege...

- - - - - - - - - - - - - - - - - - - -

Constitutional Law-- Confrontation Clause-Admission at Trial of Slain Informant's

Prior Grand Jury Testimony Against Defendants Does …

Book Reviews, Stephen L. Wasby, Herbert A. Johnson

Vanderbilt Law Review

The Courts and Social Policy Author: Donald L. Horowitz

Reviewed by Stephen L. Wasby

Donald Horowitz's The Courts and Social Policy is a serious effort to deal with the question of judicial capacity. Horowitz talks first of the expansion of judicial responsibility, which he thinks is a departure from the traditional exercise of the judicial function, and then explores the sources of this growth, particularly expansive statutory interpretation. He believes that courts do not do well at interpreting the mixes of statutes, regulations, and local arrangements with which they are faced more and more frequently. "Griggs v. Duke Power Co.," …

Parker And Usery: Portended Constitutional Limits On The Federal Interdiction Of Anticompetitive State Action, Mark L. Davidson, Robert D. Butters

Vanderbilt Law Review

This Article examines in detail the policies underlying these recent Supreme Court decisions interpreting the Sherman Act and shows that they have equal applicability to FTC enforcement of the Clayton and FTC Acts. The Article identifies the factual criteria used by the courts for distinguishing state and private conduct that is subject to the antitrust laws, and to congressional commerce dictates, from sovereign state regulatory conduct that is immune from antitrust sanction. The Article then focuses on the impact of Usery, which provides constitutional support for the so-called state action doctrine that was originated in Parker v. Brown. Finally, we …

The Role Of Attempt To Monopolize In Antitrust Regulation: An Economic And Social Justification For A New Approach, Joel R. Tew

Vanderbilt Law Review

Attempt to monopolize is an elusive concept. The number of divergent views demonstrates the complexity the courts face in re-solving the controversy. The first step toward resolution requires are thinking of antitrust values. The many legal tangents have not produced a satisfactory result primarily because they are formulated on a value base that is incompatible with the functional requirements of the competitive process. While economic efficiency is a relevant goal of antitrust, it should not be and has not been the only goal. The evolving socioeconomic structure requires broadly based antitrust policy that acknowledges economic and noneconomic values and facilitates …

Horizontal Divestiture In The Petroleum Industry, Jesse W. Markham, Anthony Hourihan

Vanderbilt Law Review

"Divestiture" as applied to the oil industry has now clearly come to mean different things to different people, and often different things to the same people. On the one hand it has taken on all the attributes of a political slogan, very much like the "free silver"battle cry of the 1890's. It inspired the introduction of over twenty bills in the Ninety-Fifth Congress and served as a plank in the Democratic Party's platform of 1976, providing the one rallying point for the dozen or so candidates who sought the party's presidential nomination. In fact, during the autumn of 1976 political …

Is There Arbitration After Burns?: The Resurrection Of John Wiley & Sons, Sue J. Henry

Vanderbilt Law Review

The decisions of the United States Supreme Court in John Wiley & Sons, Inc. v. Livingston, NLRB v. Burns International Security Services, Inc.,' and Howard Johnson Co. v. Detroit Local Joint Executive Board' have raised, but left unanswered, two significant questions regarding the proper balancing of the parties' interests: (1) does the successor employer's duty to arbitrate with the union under the predecessor's contract survive a corporate change?;and (2) if so, does the arbitrator have the power to impose the substantive terms of the predecessor's labor agreement on the successor? To answer these questions, this Article initially will analyze in …

First Amendment Restrictions On The Ftc's, Robert D. Eckinger

Vanderbilt Law Review

The Supreme Court has suggested a "degree of protection"approach to reconcile the first amendment protection of commercial speech with the need to effectively regulate false or misleading advertising. In so doing, however, the Court has failed to establish clearly the judicial standard of review appropriate in examining regulative measures. In the absence of adequate guidance, several circuit court decisions have adopted an unjustified standard of strict judicial scrutiny. The continued use of this standard by the circuit courts in reviewing FTC decisions will present increasing institutional problems for the courts and will seriously undermine the Commission's ability to protect consumers …

Book Reviews, George A. Hay, H. Michael Mann, Teresa Amott

Vanderbilt Law Review

Book Reviews:

The Antitrust Penalties: A Study in Law and Economics By Kenneth G. Elzinga and William Breit

Reviewed by George A. Hay

The Antitrust Penalties was published in 1976. Its main mes-sage is that the only efficient antitrust penalty is a heavy fine and that incarceration comes out poorly by any benefit-cost standard.Later that year, in a celebrated and possibly unprecedented appearance, newly appointed Assistant Attorney General Donald I. Baker argued before a federal district judge that jail sentences were the appropriate penalty for a group of defendants who had just been convicted in one of the major price-fixing …

Recent Cases, Alan W. Duncan, Elton G. Snowden, William A. Holby, Joseph W. Gibbs

Vanderbilt Law Review

Constitutional Law -- Newsperson's Privilege - The First Amendment Guarantee of a Free Press Protects Against Compelled Disclosure of a Journalist's Exercise of Editorial Control and Judgment

Plaintiff, a former army officer who had achieved national prominence by claiming that his superiors ignored his reports of atrocities by American forces in Vietnam,' brought a libel suit against defendant television producer, reporter, and network for broadcasting a program that cast doubt upon plaintiff's allegations. Contending that defendant did not present available information corroborating plaintiff's claims, plaintiff sought discovery of the producer's beliefs, opinions, intent, and conclusions in preparing the program.

Alan …

Crisis In The Courts: Proposals For Change, Griffin B. Bell

Vanderbilt Law Review

The popular conception of the crisis in the courts focuses upon the condition of the courts and particularly upon the increasing volume of disputes that are presented for resolution. For example,Judge Ruggero J. Aldisert of the Third Circuit, one of the busiest federal circuits, has observed: "The reality is that today there is a mad rush to the Federal courts." The available statistics reflect Judge Aldisert's observation. For instance, according to the most recent report of the Administrative Office of the United States Courts, record numbers of cases have been filed in the circuit and district courts during the past …

Recent Cases, Robert E. Banta, Oby T. Brewer, Iii, Cornelia A. Clark, I. Terry Currie, Douglas W. Ey, Jr.

Vanderbilt Law Review

Constitutional Law-First Amendment-School Authorities May Prohibit High School Student's Distribution of Sex Questionnaire to Prevent Possible Psychological Harm to Other Students Robert Edward Banta

Plaintiff, editor of a high school publication,' brought suit in federal court seeking an order compelling defendant school officials to allow the student publication to distribute a sex questionnaire,to students in the high school and to publish the results. Plaintiff claimed that defendants had not shown that the planned distribution would disrupt school activities and that, therefore, defendants'prohibition of the questionnaire violated 42 U.S.C. § 19831 and the first and fourteenth amendments. Pointing to potential psychological …

Title Vii - Seniority - The Relevant Scope Of Inquiry For Determining The Legality Of A Seniority System, James D. Spratt, Jr.

Vanderbilt Law Review

Title VII of the Civil Rights Act of 1964, which became effective on July 2, 1965, was enacted to eliminate artificial barriers to employment that historically have deprived minorities and women of employment opportunities. Section 703 of the Act thus makes discrimination on the basis of race, color, religion, sex, or national origin an unlawful employment practice. In order to obtain relief from a discriminatory employment practice, an aggrieved party must demonstrate that the defendant intentionally engaged in the unlawful practice. Because the broad language of sections 703(a), 703(c), and 706(g) fails to define the terms "discriminate" and"intentionally," the effectiveness …

The Expansion Of Federal Jurisdiction And The Crisis In The Courts, Harry Phillips

Vanderbilt Law Review

Diversity jurisdiction has undergone intensive scrutiny and criticism for many years, with some commentators advocating repeal, and others urging retention. Among the critics of diversity jurisdiction are some of the legal profession's most prominent members. Roscoe Pound, Louis D. Brandeis, and Charles William Eliot were members of a committee that questioned diversity jurisdiction as long ago as 1914, and Senator George W. Norris of Nebraska led the Senate Judiciary Committee in recommending repeal of diversity jurisdiction in 1928. In 1954, Associate Justice Felix Frankfurter, an ardent foe of diversity jurisdiction, referred to "the mounting mischief inflicted on the federal judicial …

Discussion: Crisis In The Courts, Journal Staff

Vanderbilt Law Review

The Articles by Attorney General Griffin Bell, Chief Judge Harry Phillips, and Dean John W. Wade contained in this issue are based upon remarks made by the authors at the Cecil Sims Lecture Series, which was presented by the Vanderbilt Law School on November 4, 1977. The Sims Lecture Series was established in 1973 in memory of Cecil Sims, a 1914 graduate of Vanderbilt Law School and a preeminent attorney in Nashville, Tennessee. It was designed to foster discussion of issues of current significance to the legal community by bringing outstanding judges, attorneys, and public servants into close contact with …

Some Comments On The Litigation Explosion, John W. Wade

Vanderbilt Law Review

My comment must start with a strong commendation of Attorney General Bell for recognizing the crisis created by the current "litigation explosion" in our courts and for providing leadership in seeking means for alleviating and perhaps even solving it. I am sure that the Justice Department's new Section on Improvement in the Administration of Justice will prove invaluable, both as an originator and a clearinghouse for compiling and evaluating new ideas and as a means for putting them into effect. Dan Meador makes an ideal selection as assistant attorney general to head it. I also must commend the Justice Department …

Litigant Access Doctrine And The Burger Court, Tinsley E. Yarbrough

Vanderbilt Law Review

The decisions of potentially most far-reaching significance, however, are the Burger Court's pronouncements concerning the nature and application of the personal injury standard in the field of standing, the status of public action lawsuits, and the propriety of federal district court intervention in state judicial proceedings. This Article critically analyzes the Court's developing position in each of these areas and suggests that in each its doctrinal stance is conceptually weak, rarely serves the functions that it ostensibly was designed to perform, and is extremely vulnerable to capricious application.