Law Commons^™

Recent Cases, Sara P. Walsh, Don B. Cannada, Frances L. Adams, William T. Luedke, Iv

Vanderbilt Law Review

Civil Procedure - Appellate Jurisdiction - Orders Denying Disqualification of Counsel on Ethical Grounds Are Not Final Decisions Subject to Immediate Review Under 28 U.S.C. § 1291

Sara Porter Walsh

Petitioner,' an applicant for a Federal Communications Commission (FCC) broadcasting license, sought interlocutory review of a Commission order' denying a motion to disqualify the law firm that had represented competitor RKO for thirty years. Petitioner alleged that participation by the firm, which included an attorney who was chairman of the FCC while RKO's application was under consideration, constituted a violation of Canons Five and Nine' of the ABA Code of …

Antitrust Consequences Of United States Corporate Payments To Foreign Officials, James F. Rill, Richard L. Frank

Vanderbilt Law Review

This Article examines the feasibility and desirability of marshalling section 2(c)' of the Clayton Act as amended by the Robinson-Patman Act and sections 1 and 2 of the Sherman Act against a practice having deep legal, political, and emotional significance in the United States and overseas. Difficult questions of jurisdiction and coverage are presented, as are major issues of public policy on what the role, if any, should be for these provisions.

Judicial Impeachments And The Struggle For Democracy In South Carolina, James W. Ely, Jr.

Vanderbilt Law Review

Judicial tenure had become a sensitive issue in the colonies before the American Revolution. Although the Act of Settlement of 1701 guaranteed tenure during good behavior for judges in England, this statute did not extend to the colonies, and royal governors regularly were instructed to issue judicial commissions at the pleasure of the Crown. Judges in New York briefly secured appointments for good behavior during the 1750's, but in 1761 the King in Council directed that henceforth no commission could be granted except at pleasure. In 1759 the Pennsylvania Assembly passed a measure providing that judges in that colony would …

The Early Legal Career Of Howell Jackson, Terry Calvani

Vanderbilt Law Review

Felix Frankfurter observed in 1937 that "American legal history has done very little to rescue the [United States Supreme] Court from the limbo of impersonality."' Subsequently, numerous individual and collective works have focused on the more prominent figures in the history of that institution.' Unfortunately, there remain many justices of the Supreme Court who have received relatively little scholarly attention. Yet, as one political scientist has recently lamented, "[until] there is a fuller awareness of the inter-play between individual personalities and decision making, it is unlikely there will be 'an adequate history of the Supreme Court."

One such individual is …

Fiduciaries Under Erisa: A Narrow Path To Tread, H. Stennis Little, Jr., Larry T. Thrailkill

Vanderbilt Law Review

The Employee Retirement Income Security Act of 1974'(ERISA) introduced a new era for a broad spectrum of American society. The new Act had a startling impact not only upon pension plan sponsors, participants, and beneficiaries, but also upon the myriad group of individuals and institutions providing services,advice, and counsel to the pension industry. This article primarily will consider the new law as it affects the fiduciary, creating new responsibilities and increased liability. Several areas in which the new law creates special problems then will be considered.

Recent Cases, Samuel E. Stumpf, Jr., M. Carolyn Barefield, Robert S. Reder, Stephen C. Morton, Randolph C. Coley

Vanderbilt Law Review

Noerr-Pennington Immunity for Joint Efforts to Influence Governmental Action - Intent to Cause Competitive Injury, Evidenced by Repeated, Baseless Opposition Before an Adjudicatory Body, Does Not Result in Loss of Noerr-Pennington Immunity Absent Specific Allegations of Conduct External to or Abusive of the Adjutory Processes

Samuel E. Stumpf, Jr.

Constitutional Law - First Amendment - Student's Right to Receive Information Precludes Board's Removal of Allegedly Offensive Books from High School Library

M. Carolyn Barefield

Constitutional Law-Search and Seizure - Federal Courts Are Bound by Federal Wiretapping Statutes and Will Not Exclude Evidence Seized by State Agents in Violation of More …

Fiduciaries And Fairness Under Rule 10b-5, Thomas J. Sherrard

Vanderbilt Law Review

In Marshel v. AFW Fabric Corp., decided on February 13,1976, the court unanimously sustained a challenge to long-form merger under New York law for the sole purpose of "going private,"concluding that despite full disclosure, the merger itself constituted a fraudulent scheme because it represented an attempt by the majority stockholders, in violation of their fiduciary obligations, to utilize corporate funds strictly for personal benefit and for no legitimate corporate purpose...

It is the purpose of this article to analyze the Green and Marshel decisions against the backdrop of previous cases in the area of fraudulent mismanagement, to gauge their impact …

In Search Of A Standard Of Care For The Medical Profession: The "Accepted Practice" Formula, Joseph H. King, Jr.

Vanderbilt Law Review

American lawmakers and jurists are or soon will be confronted with a number of vital decisions affecting the professional liability of members of the healing arts. At issue is the continuing validity of the present system of fault based liability for medical malpractice, as well as the essential nature such a system should assume if it survives. Though often divorced, the two issues are inextricably wedded. The survival of the fault based system will assuredly depend in large measure on whether it can be made to work more efficiently and more consistently while meeting its espoused goal of loss redistribution …

Recent Cases, Theodore Brown, Jr., Janet R. Necessary

Vanderbilt Law Review

Responding to an increase in the number of habeas corpus petitions filed by federal prisoners in the district courts whose jurisdictions included federal prisons,, Congress in 1948 enacted 28 U.S.C. § 2255.1 The statute's purpose is to provide federal prisoners with an expeditious remedy for correcting erroneous sentencing without resort to habeas corpus.' In an effort to restrict the number of evidentiary hearings required, section 2255 provides for denial of petitions in which the motion, files, and records of the case conclusively demonstrate that the prisoner is entitled to no relief." Since approximately two-thirds of all federal criminal prosecutions are …

Book Reviews, Paul L. Murphy, Richard E. Ellis

Vanderbilt Law Review

Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality By Richard Kluger

Reviewed by Paul L. Murphy

Richard Kluger is a novelist and editor who retired to devote his full time to an extensive study of the landmark Supreme Court decision of Brown v. Board of Education.' Perceiving the Brown decision as a watershed with respect to America's willingness to confront the consequences of centuries of racial discrimination, Kluger set out to tell the entire story of the Brown decision. Kluger approaches the Brown case not as a study of the law and …

Private Copyright And Public Communication: Free Speech Endangered, Lyman R. Patterson

Vanderbilt Law Review

Copyright as it has developed is essentially a private copyright for private communications made public for profit. Theoretically,the right to copyright is derived from the act of creation, and the choice of making his creations public is that of the author. As the copyright clause makes clear, the purpose of the private monopoly of copyright is to encourage the author to make his creations available for public learning. Television, on the other hand, is primarily a medium of public communication that has as a major function the transmission of public information to the public. To apply the present law of …

Buckley V. Valeo, Its Aftermath, And Its Prospects: The Constitutionality Of Government Restraints On Political Campaign Financing, Brice M. Clagett, John R. Bolton

Vanderbilt Law Review

The Supreme Court's decision in Buckley v. Valeo' undoubtedly will be the forerunner of many future decisions dealing with the complex area of political campaign finance and thus will exert a profound influence on the structure of American politics. From a broader perspective, the decision significantly applies fundamental constitutional law doctrines concerning the first amendment and separation of powers. Accordingly, a clear understanding of what the Court did and did not do in Buckley is essential to any further legislative or judicial initiatives in the regulation of political activity. This article will examine the Court's holdings in Buckley, describe the …

Gasoline Marketing Divestiture Statutes: A Preliminary Constitutional And Economic Assessment, Hunter M. Meriwether, James C. Smith

Vanderbilt Law Review

This Note has traced the recent developments in the oil industry and in gasoline marketing that have led to the enactment of divestiture statutes in three states and their consideration by the legislatures in many others. The statutes are essentially of two types: those prohibiting the owning or leasing of marketing outlets by vertically integrated oil companies and those prohibiting or limiting the operation of retail outlets with company employees. Both types of statutes, however, have as their primary aim the exclusion of the majors as competitors at the retail level. This is thought to be necessary to prevent anticompetitive …

Recent Cases, Laurence M. Hamric, William G. Scott, Mitchell M. Purvis, George M. Kryder, Iii, Richard M. Pitt

Vanderbilt Law Review

Laurence M. Hamric

The instant decision demonstrates the inability of the Court, on its own or with the meager guidance provided by Congress, to discern a clear standard by which to measure the propriety of union organizational activity in light of current federal labor and antitrust law. Faced with a fact pattern that did not embody an apparent anticompetitive intent, a classic conspiracy between labor and non-labor entities, or activity clearly unrelated to the legitimate union interest in achieving better wages and working conditions, the Court was forced to abandon the "clear showing" test of Pennington," the"intimately related" test of …

State Court Reactions To Gertz V. Robert Welch,Inc.: Inconsistent Results And Reasoning, Charles W. Gerdts, Iii, Kevin J. Wolff

Vanderbilt Law Review

This Recent Development will examine the state court reactions to Gertz, describe the reasons for the lack of uniformity in their conclusions, and suggest an approach to balancing the first amendment and reputational interests.

The Private Action Against A Securities Fraud Aider And Abettor: Silent And Inactive Conduct, Clyde A. Billings, Jr.

Vanderbilt Law Review

This Note will examine the origins of the aiding and abetting cause of action and the development of a theory of liability based solely upon passive conduct. After an examination of the elements of the cause of action and defenses, a proposed definition of "aiding and abetting" will be offered. The effect of the recent Supreme Court decision Ernst & Ernst v. Hochfelder upon aiding and abetting liability, the scienter requirement, and the duties owed by potential aiders and abettors will be discussed. Treatment of aiding and abetting by the Federal Securities Code 19 also is mentioned.

240 Men: The Antebellum Lower Federal Judiciary, 1829-1861, Kermit L. Hall

Vanderbilt Law Review

Between 1829 and 1861 antebellum presidents nominated 200 judges to the federal lower courts. Earlier administrations had appointed another forty jurists who held their positions during part or all of the era. Of these judges, 108 served in the federal district courts, 126 in the territorial courts, five in the Court of Claims, and one in a special circuit court established in 1855 for the northern district of California. The number of appointments available to an administration involved fate and the pace of territorial expansion;thus, during the first eight years of the period, Jackson nominated thirty-two judges, while in the …

Health Maintenance Organizations And Federal Law: Toward A Theory Of Limited Reformmongering, Philip C. Kissam, Ronald M. Johnson

Vanderbilt Law Review

The purpose of this Article is twofold. First, we develop a theory for HMO legislation based on an assessment of past experience with HMOs, current problems with the delivery of health services, and different legislative theories that have been advanced by others. Secondly, we use this theory to help evaluate some major issues faced by legislators and administrators in regulating HMOs and to suggest a number of improvements. A recurring theme throughout this analysis is that policymakers have not considered fully all of the economic and political ramifications of the HMO phenomenon. This has helped produce theoretical conflict about HMO …

The Mccarran-Ferguson Act: A Time For Procompetitive Reform, Laurence M. Hamric

Vanderbilt Law Review

State insurance regulation may be broadly divided into two categories. The first generally encompasses those laws that are directed toward protecting the insurance fund so that a policy holder can be secure in his reliance on his insurer's ability to pay its obligations. An assumption underlying this Note is that such regulation, despite its imperfection and effect on competition, is both socially and economically desirable. Thus the problems with state regulation aimed at ensuring the financial reliability and solvency of insurance companies" will not be considered here. Rather, this section of the Note will outline the second category of state …

Petroleum Dismemberment, Stark Ritchie

Vanderbilt Law Review

This article endeavors to explain the rationale of vertical integration, to discuss some of the arguments surrounding divestiture,and to describe the consequences of divestiture if S. 2387 becomes law. The following discussion shows that careful examination of the structure and performance of the petroleum industry fails to yield any conclusive evidence of inordinate monopoly power. On the contrary, the economic indicia strongly suggest that at the very least the industry is "workably competitive" at all stages.' Further, the contention that divestiture would strengthen this nation's interests vis-a-vis the Organization of Petroleum Exporting Companies nations has been dispelled. Thus the grounds …

Book Reviews, Frank J. Remington, George B. Tindall

Vanderbilt Law Review

Fair and Certain Punishment

Review by Frank J. Remington

Punishing Criminals. By Ernest van den Haag. New York: BasicBooks, Inc., 1975. Thinking About Crime. By James Q. Wilson. New York: BasicBooks, Inc., 1975.

Times change. So also do opinions about important social problems such as crime and government's response to crime. The books of both van den Haag and Wilson reflect changing opinions on crime and on what to do about crime. Both urge that we abandon the view that social conditions are an important cause of crime and that an improvement in social conditions will reduce crime substantially.Both urge …

Neighborhood Housing Services: A Program With Promise, Charles L. Thiemann

Vanderbilt Law Review

Neighborhood Housing Services (NHS) is a concept concerned with the problem of neighborhood preservation and revitalization. It is also a program that has developed out of this concept which many believe has much promise as a means of dealing with these problems. What reasons do we have for believing that NHS is a program with promise? How is the concept of Neighborhood Housing Services germane to the problem of neighborhood preservation and revitalization? What is the nature of the problem of neighborhood preservation and revitalization? These are the questions addressed in this article.

Municipal Securities Rulemaking Board: A New Concept Of Self-Regulation, Roswell C. Dikeman

Vanderbilt Law Review

The municipal securities industry, an important segment of the national capital markets, directly affects both the quality of life and the pace of community development throughout the nation. Municipal securities, broadly defined to include all debt securities issued or guaranteed by the states and their political subdivisions,' are the vehicle by which states, their agencies, and local governments finance both long- and short-term debt requirements. In calendar 1975, for example, the municipal securities industry raised approximately 29.2 billion dollars in long-term issues. In 1973, 8,147 long- and short-term issues raised almost 48 billion dollars, or approximately one-quarter of all direct …

A Regulator's View Of Banks In Community Development, Frank Wille

Vanderbilt Law Review

By and large, the nation's banks have not publicized the story of their significant, sometimes crucial, role in community development. For this low-profile approach, they have paid a high price in lack of public understanding and legislative empathy. Their record,however, is impressive, particularly if "community development" is broadly defined to include the various forms of assistance that banks render to state and local governments that sponsor or finance community development projects.

Financial Institutions, Municipal Finance, And Community Development, J. Dewey Daane

Vanderbilt Law Review

An overview of the very complex aspects of community development as they relate to financial institutions may be put into context with a reiteration of one of the basic tenets of American philosophy as stated in the Housing Act of 1949; that it be the policy of the United States Government to provide every American family "a decent home and a suitable living environment." As we narrow our focus to the more specific problem of decaying urban neighborhoods, we are faced immediately with the question of responsibility.

Disclosure By Issuers Of Municipal Securities: An Analysis Of Recent Proposals And A Suggested Approach, Robert D. Tuke

Vanderbilt Law Review

The following considerations impacting on the disclosure issue have been developed in this Note: the uniqueness of the municipal securities industry, owing to the diverse natures of the securities, the wide variety of issuers, and the particular means of marketing the securities; the special circumstances created for underwriters by the competitive bidding process; the varied roles of other participants in the distribution process--fiscal agents, bond counsel, governmental accountants; the existing state machinery for regulation and control; the practical limitations on the SEC--both in staff capacity and expertise; the need for uniformity in disclosure to prevent weakened marketability of municipal securities …

Residential Mortgage Lending: Charting A Course Through The Regulatory Maze, William F. Earthman

Vanderbilt Law Review

One specific issue addressed by this symposium is the practice of "redlining." If what is meant by "redlining" is discrimination in residential mortgage lending, I am certainly opposed to such a practice. If, however, what is meant by "redlining" is the consideration and analysis of the effect of the surrounding neighborhood on the property which secures a particular residential mortgage loan, then there are other problems which must be addressed and focused upon. It has been stated that a lender redlines a specific geographic area located within the larger geographic area normally serviced by that lender when the lender refuses …

Recent Cases, David G. Russell, Thomas J. Hartland Jr.

Vanderbilt Law Review

David G. Russell -- Private Nuisance--Urban Redevelopment

Outside the realm of eminent domain and zoning, the law of private nuisance provides judicial response to problems of conflicting land uses. As the private landowner's legal weapon for eliminating a use incompatible in the neighborhood, private nuisance law affords an effective remedy because the unreasonable, nonconforming use can be enjoined or its perpetrator subjected to liability for damages. Nevertheless, indiscriminate application of existing doctrine might jeopardize fair and efficient resolution of problems of land use control. Considered in the light of equity and economics, a recent New York decision reveals the need …

Eliminating Redlining By Judicial Action: Are Erasers Available?, Paul A. Renne

Vanderbilt Law Review

This paper will consider one practice--mortgage disinvestment, commonly referred to as "redlining"--which has worked incontravention to the declared policy of Congress by contributing to the destruction of the urban housing inventory and has been partly responsible for the failure to meet our housing goals. This paper will discuss the concept and effects of redlining, the relevant statutes and administrative regulations, and the use of class action litigation as a means of eliminating the practice. Before turning to this discussion, however, it is important to emphasize that eliminating the practice of redlining will prove no panacea to our urban problems. It …

Recent Cases, Richard T. Hurt, Jay D. Christiansen, William J. Rees, William D. Gutermuth

Vanderbilt Law Review

Constitutional Law--Action Under Color of State Law--Legislative Authorization of Private Action Resembling Public Function Constitutes Action Under Color of State Law

The instant case creates a two to two split in the circuits on the question whether the seizure of a tenant's possessions under a land-lord lien statute is action under color of state law. The decisions in Davis and Anastasia provide the potential for abuse that Fuentes was designed to prevent-the indiscriminate entry into the debtor's home and seizure of his belongings without prior notice and hearing.Hall and the instant opinion, however, provide a more equitable result. While the …