Law Commons^™

Of Trumpeters, Pipers, And Swingmen: What Tune Is The Burger Court Playing In Right To Representation Cases?, David M. Thompson

Vanderbilt Law Review

The Burger Court has had to face a constant question in the right to representation cases: How best to balance the needs of society and the needs of individuals? At the time of this Note, the Burger Court has faced this question for six years, the same span of time in which the Warren Court after Gideon established its liberal legacy. As the accompanying chart reveals, the sixteen right to representation decisions of the Burger Court during this period have been split equally, eight extending and eight restricting the right. This split obviously has slowed the momentum of the Warren …

Recent Developments In Attorneys' Fees, W. Perry Brandt, Pendleton C. Waugh, Richard C. Stark Special Project Editor

Vanderbilt Law Review

Special Project--

Recent Developments in Attorneys' Fees

In recent years, the subject of attorneys' fees has become the focal point of pressures to improve the accessibility of legal services for those unable to pay large fees. Courts, scholars, and special interest groups have examined in detail the relationship between fees and the ability to assert legal rights. This increased scrutiny has led to the elimination of minimum fee schedules, the criticism of and possible relaxation of restrictions on fee advertising, and the establishment of maximum contingent fee schedules by court rule. Private enforcement of newly enacted federal statutes against private …

Membership Rights In Nonprofit Corporations: A Need For Increased Legal Recognition And Protection, Robert H. Brownlee

Vanderbilt Law Review

This Note has focused on three issues concerning membership in nonprofit corporations: whether members are entitled to increased protection of voting rights; whether state courts adequately have analyzed questions of membership standing to assert individual claims; and whether members should have standing to institute derivative actions on behalf of a nonprofit corporation. In each of these areas membership rights deserve increased legal recognition and protection.

Progress In The Art Of Social Accounting And Other Arguments For Disclosure On Corporate Social Responsibility, Douglas M. Branson

Vanderbilt Law Review

In the area of corporate social responsibility, where to go and how to get there are major questions facing corporations, their lawyers, investors, and governmental agencies alike.' Questions of "where to go" facing corporate executives and others include how much corporate social responsibility is enough and what forms social responsibility should take. Other questions concern which of the socially responsible measures corporations could take portend the greatest good for the greatest number, or on the more pragmatic scale, which measures will win the greatest amount of public or governmental acceptance. What roles government, citizen groups, or investors should play in …

The Educational Benefit Trust:Loophole Or Sinkhole?, John L. Van Cleave

Vanderbilt Law Review

This Note indicates clearly that the likelihood of the court's upholding the tax advantages claimed to be available under EBTs is far from certain. More than an "element of risk" is involved in recommending that a client adopt an educational benefit trust, but does this require an attorney to avoid such arrangements? On the other hand, does an attorney owe an obligation to the legal process and to society to challenge the Service whenever it, in his opinion,has taken a position more favorable to the Treasury than intended by Congress in enacting the legislation underlying the matter in controversy? While …

Book Review, R. Lawrence Ashe, Jr., Donald R. Stacy

Vanderbilt Law Review

This volume appears at first blush to fall into a freshet of recent writings on the limits of our capacity for effective social engineering. Among these writings are Daniel Patrick Moynihan's Maximum Feasible Misunderstanding, James Q. Wilson's Thinking About Crime, and James S. Coleman's qualifying affidavit in the Boston School case and subsequent articles. Upon full reading, however, Professor Glazer's attack is seen to be directed more at the dubious moral mandate for group statistical preferences than at their evidently doubtful impact on the social problems at which they have been aimed.

Out-Of-State Collection Of State And Local Taxes, Robert A. Leflar

Vanderbilt Law Review

Validly due and payable state and local taxes often go unpaid because the absent tax debtor chooses not to pay voluntarily and has no assets from which the tax debt can be collected in the taxing state. He often has assets elsewhere, but they may be difficult for the tax creditor to discover and to reach.

Only a few years ago out-of-state assets could not be reached at all, nor could the tax debtor himself be reached except within the taxing state, in its own courts, and by its own legal processes. Formerly, no state would use its law or …

Interstate Corporate Income Taxation-Recent Revolutions And A Modern Response, Eugene F. Corrigan

Vanderbilt Law Review

In recent years significant technical advances have enabled large corporations to sell into states from great distances and with a minimum of contact in those states. Nevertheless, the states and their political subdivisions are confronted with the claims of corporations that jurisdictional barriers to corporate income taxes should be raised, that improved enforcement techniques should be prohibited, and that certain classes of income should be immunized completely from state taxation. These revolutionary technical advances have created both major tax administration problems and tax administration opportunities for the states. Some of the latter, however, remain unexploited. This article examines the ramifications …

Book Reviews, Ernest Van Den Haag, James F. Neal

Vanderbilt Law Review

Consensual Government "The Morality of Consent" by Alexander M. Bickel

Reviewed by Ernest van den Haag

Bickel wanted to make the scope of the law comprehensive enough to proclaim the norms that are consensually perceived to be necessary to social life, yet to let individuals and groups pursue their choices without being forced to conform altogether to majority views or being strapped into judicial strait jackets. His work, and the unifying theme of this posthumous collection of essays, very largely consisted of elaborations of his answer to the question: how can we define the province of constitutional interpretation so as …

Paul J. Hartman And The Literature Of State And Local Taxation-An Appreciation, William R. Andersen

Vanderbilt Law Review

The editors of this symposium have asked me for a brief account of the contributions of Professor Hartman's published writings in the field of state and local taxation. In fairness, those contributions cannot be accounted in brief; what follows is more of a bibliography, and an appreciation...

As a final example of Hartman's concern for institutional relationships in tax policy, mention should be made of the 1959 piece on municipal income taxation.' Here, Hartman has changed lenses on his microscope and examines not the relationship between the nation and the states but that between the states and the cities. His …

"Solicitation" And "Delivery" Under Public Law 86-272: An Uncharted Course, Paul J. Hartman

Vanderbilt Law Review

In 1959, in response to pressure from multistate business and over the protest of state tax authorities and others, Congress passed Public Law 86-272 limiting the power of state and local governments to tax net income derived from interstate commerce.' The provisions of Public Law 86-272, briefly stated, prohibit state or local governments from imposing net income taxes on sellers of tangible personal property whose business activities in the state are limited to one or more of the following:. solicitation of orders for sales of tangible personal property by the seller or his own representative when the orders are sent …

Recent Cases, Walter S. Weems, Mary M. Schaffner, Ronald G. Harris

Vanderbilt Law Review

Constitutional Law-State and Local Tax-- Nondiscriminatory Ad Valorem Property Tax on Imports Stored in Warehouse Pending Sale Is Not Prohibited by Import-Export Clause

The framers of the Constitution enacted the import-export clause with the apparent intent that it remedy shortcomings of the Articles of Confederation and achieve specified national goals. Since the Articles of Confederation allowed individual states to regulate commerce as they saw fit, the seaboard stales, through whose ports goods in foreign commerce had to pass, were able to impose duties on imports destined for inland states. One reason for the import-export clause was to preserve harmony among …

The Constitutionality Of The Multistate Tax Compact, Robert M. White

Vanderbilt Law Review

It is now firmly established that states have the constitutional power to tax multistate businesses on net income reasonably attributable to activity within the taxing state. Within this legal frame-work, limited only by Public Law 86-272, the states have fashioned separate and diverse rules for the taxation of multistate corporations.'The recently formed Multistate Tax Compact provides an efficient alternative to both the present disarray of state statutes and possible federal regulation of interstate taxation. The principal purposes of the Compact are to establish uniform rules for determining state tax liabilities of multistate taxpayers, to eliminate ineffective tax administration and the …

Paul J. Hartman And The Vanderbilt Law Alumni, Wilson Sims

Vanderbilt Law Review

One of the greatest assets of the Vanderbilt Law School is Professor Hartman's obvious love and appreciation for the School. When the Dutchman gets serious, this comes across in a powerful way. His unending effort on behalf of the Law School in working with the alumni over these many years has resulted in numerous tangible benefits for the Law School, but even more importantly, in many intangible ways, including the great sense of loyalty held by many of these alumni, all of them the Dutchman's former students. The School has no better salesman. He and his wife Dorothy command the …

State Taxation Under The Commerce Clause: An Historical Perspective, Jerome R. Hellerstein

Vanderbilt Law Review

Although Congress has plenary power under the commerce clause to regulate state taxation of interstate commerce, that power remained virtually unexercised until 1959. As a consequence of the silence of Congress, the task of reconciling the competing interests of states, multistate businesses, and local businesses, and accommodating those interests to the needs of a national economy fell by default to the Supreme Court. The instrumentality available to the Court for dealing with the complex political, fiscal, and economic controversies inherent in state taxation of multistate business was the commerce clause (augmented by due process restrictions and,to a lesser extent, the …

Taxation Of Income From Intangibles Of Multistate-Multinational Corporations, William D. Dexter

Vanderbilt Law Review

In determining whether income from intangible investments should be subject to general apportionment rules or assigned to the commercial domicile or elsewhere the challenge to the states currently is to ascertain the true facts surrounding large corporate investments in intangible properties. The distinctions in UDITPA between business and nonbusiness income mandate this kind of factual inquiry. It is questionable, however, whether this distinction should continue to be given any significant effect, since it lacks substance and leads to endless conflict between large multistate and multinational corporations and each state in which they do business. Furthermore, in determining the state income …

Mass Immunization Cases: Drug Manufacturers'liability For Failure To Warn, Mary E. Mann

Vanderbilt Law Review

In recent years, the manufacturers of polio' vaccines, administered in mass immunization programs at public health clinics, have been beseiged with a flurry of cases in which they have been held liable for failing adequately to warn of the dangers inherent in the use of an otherwise pure, unadulterated drug. As a result of the relatively large judgments awarded in these cases and the almost insurmountable practical problems of preventing further liability, drug manufacturers have ceased, or are threatening to cease, production of these essential, life-saving vaccines. Consequently, these recoveries threaten the effectiveness of the nation's preventative health care programs …

The Commodity Futures Trading Commission Act: Preemption As Public Policy, Philip F. Johnson

Vanderbilt Law Review

On October 23, 1974, President Ford signed into law P.L. 93-463, bearing the breathless title "Commodity Futures Trading Com-mission Act of 1974"' [hereinafter the CFTC Act]. The CFTC Act followed a series of hearings, beginning in the summer of 1973, held first by a subcommittee of the House Committee on Small Business and followed rapidly by the more traditional oversight committees of the Congress-the House Agriculture Committee and the Senate Agriculture and Forestry Committee.' The result was a major over-haul of the Commodity Exchange Act, which had governed the commodity futures markets since 1922. More significantly, however,the Act has become …

Recent Cases, Susan E. Dominick, Robert D. Butters, Walter T. Eccard

Vanderbilt Law Review

The first amendment guarantee of free exercise of religion, although couched in absolute terms, has never been considered an absolute right. The first significant free exercise case, Reynolds v.United States,' upheld the conviction of a Mormon polygamist who claimed a religious exemption from the bigamy laws on the basis of the first amendment. The Court held that while Congress was left powerless to legislate in matters of mere opinion, it was nonetheless" left free to reach actions which were in violation of social duties or subversive of good order."'

Susan E. Dominick

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The instant decision appears to be the …

Judicial Policy-Making And Information Flow To The Supreme Court, Charles M. Lamb

Vanderbilt Law Review

This article is intended as an exploratory step toward filling the gap in the literature by synthesizing the fragmentary knowledge relating to judicial information flow. It attempts to advance the dialogue initiated by Professors Miller and Barron by providing a number of components necessary for an adequate model; it seeks also to suggest additional considerations necessary for a more useful model and thus for a continuing systematic inquiry into the information flow process. Results of the Miller-Barron article supply the background for the work reported here. Times, Roe, and Doe and the Miller-Barron findings are considered in the first two …

Front Pay--Prophylactic Relief Under Title Vii Of The Civil Rights Act Of 1964, Gregg N. Grimsley

Vanderbilt Law Review

This note will attempt to analyze the front pay award as it must exist within the general framework of section 706(g). After first defining the nature of the front pay award, this note will examine the interrelationship between back pay and the rightful place theory that creates the need for prospective relief. Next, the award shall be analyzed in light of both the legislative history of section 706(g)and the National Labor Relations Act, from which section 706(g) is copied. Finally, the cases that have addressed the issue shall be analyzed and the problems that will arise in the computation of …

Book Review, Henry P. Coppolillo

Vanderbilt Law Review

We often are startled when someone presents us with a new awareness of the significance of issues or phenomena at which we have been looking for years but have never really seen. Freda Adler will startle a number of people who read her book Sisters in Crime. She will also anger them. The only thing her book will not do is leave people unmoved. Sisters in Crime provides punch, provocation, revelation, promise, and explanation, as the author uses the central theme of the change in the rate and nature of crimes committed by women to explore women's roles and fortunes …

Special Project, Kenneth Harmon, Barbara Moss, W. Patrick Mulloy, Ii, Robert H. Brownlee, Walter T. Eccard, Michael D. Kelly, Timothy C. Maguire, Richard M. Pitt, Stephen K. Rush, Robert D. Tuke, Richard C. Stark Special Project Editor

Vanderbilt Law Review

The One Hundred and First Justice: An Analysis of the Opinions of Justice John Paul Stevens, Sitting as Judge on the Seventh Circuit Court of Appeals

This article will examine the opinions written by Mr. Justice Stevens while he served on the Court of Appeals for the Seventh Circuit. The areas examined are constitutional, antitrust, labor, securities, federal tax, administrative, and federal jurisdictional law. This article also will seek to reach some conclusions on Stevens' position in the several areas while he served on the Seventh Circuit and to suggest the factors he may consider important in deciding cases in …

Recent Equal Protection Decisions--Fundamental Right To Travel Or "Newcomers" As A Suspect Class?, Thomas R. Mccoy

Vanderbilt Law Review

The thesis of this article is two-fold. First, the Court's acceptance and application of the Shapiro-Dunn reasoning in Maricopa unintentionally demonstrated the intellectual inadequacy of that much-discussed line of reasoning. Read together, the Court's opinions in Shapiro, Dunn, and Maricopa establish a set of theoretical principles whose derivation is logically defective, whose consistent application would require unacceptable results in many other cases,and whose existence now forces the Court to distinguish arbitrarily other cases that, in terms of those theoretical principles, simply are not distinguishable from Shapiro, Dunn, and Maricopa. Secondly, despite the logical inadequacy and practical disutility of the theoretical …

The Great Section 38 Property Muddle, J. A. Cragwall, Jr.

Vanderbilt Law Review

Twelve full years have elapsed since section 38 property made its first appearance on the stage of tax law. In those twelve years, a complicated, confusing, ad hoc, and often inconsistent body of rulings and judicial decisions has grown up around the definitional regulation; words and phrases have acquired strange new meanings and connotations in the lush overgrowth of legal reasoning clinging to that regulation. The paradoxes in the regulation (such as that addressed in Weirick) and, more often, the ambiguities resulting from an almost universal failure by the regulations to define, instead of simply illustrate, its terms (such as …

The Role Of The Victim In The Prosecution And Disposition Of A Criminal Case, Donald J. Hall

Vanderbilt Law Review

A theoretical underpinning of the American system of criminal justice is the notion that a criminal misdeed is a wrong against the entire society.' Accordingly, the local, state and federal governments, acting as the representatives of society, assume the duty and responsibility of prosecuting the individual wrongdoer. While the individual victim of a crime obviously is the party directly" wronged," society interjects and institutes the formal proceeding to ascertain criminal responsibility and determine the appropriate sanction to be imposed upon the accused. This constitutes a basic distinction between civil and criminal cases; the aggrieved individual is the named litigant in …

The Cost Of Realization By A Secured Creditor In Bankruptcy, J. Hobson Presley, Jr.

Vanderbilt Law Review

In October 1974, business failures increased by eighteen percent, reaching the highest level in any month since March 1971. The number of business failures for that month was the highest in eighty years.' As creditors seek to realize on their security interests, and encounter the problem of who should bear the expense incurred, they may discover that the term "secured" does not adequately describe the ability to recover advances made to the bankrupt debtor. Despite the confusing state of the law in this area, the increasingly inordinate expense of foreclosure in bankruptcy, and the pressures of the current economy, the …

Book Review, James W. Ely, Jr.

Vanderbilt Law Review

The hypothesis of continuity has now been ably tested and challenged by William E. Nelson's fine book, Americanization of the Common Law. Relying upon years of painstaking research in courthouse files throughout Massachusetts, Nelson utilizes unpublished opinions, court records, and attorneys' notes to fashion a striking interpretation of the significant changes that occurred in Massachusetts law following the Revolution. The author undertakes an analysis of the doctrines of substantive law and techniques of law-making and enforcement in order "to trace the emergence of modern American law... Nelson's stress upon nineteenth century majoritarianism and governmental coercion must be qualified by consideration …

Recent Cases, Robert L. Teicher, Timothy C. Maguire

Vanderbilt Law Review

In the 1930 decision of State ex rel. LaFollette v. Kohler, the Wisconsin Supreme Court rejected the earliest free speech challenge to a candidate expenditure limitation. The court held that the state's interest in protecting the integrity of its electoral process outweighed the individual's right of communicating with the public without governmental infringement." The court's identification of the communicative effect of campaign spending anticipated the United States Supreme Court's ruling in Stromberg v. California" that communicative conduct was entitled to protection from government infringement. The Court, however, hampered the effectuation of this protection by failing to define conclusively the point …

A Remedy For The Discharge Of Professional Employees Who Refuse To Perform Unethical Or Illegal Acts: A Proposal In Aid Of Professional Ethics, Jon P. Christiansen

Vanderbilt Law Review

This note will discuss first the duties demanded of a professional in the proper exercise of his ethical responsibilities, including conduct demanded both by criminal statutes and by professional codes of conduct. Secondly, an examination will be made of three alternatives for the enforcement of professional ethics without the necessity of a right to recovery in the discharged employee. Thirdly,the limitations of traditional master-servant theory will be discussed as they relate to a possible cause of action for an "abusive discharge." Finally, this cause of action will be proposed and a consideration will be made of the elements of the …