Law Commons^™

More Than Law, Anthony J. Celebrezze

Vanderbilt Law Review

In mid-1963, at hearings' on what was to become the Civil Rights Act of 1964, I expressed my regret that some 37 years prior to the end of the twentieth century we found it necessary to take up legislation that dealt with basic human rights. Today, nearly a decade later, I express a similar regret that those rights have not yet been realized for every citizen of this nation.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Injunctions--Contempt Power--Citation Proper Against Nonparty Who Violates Court Order in School Desegregation Case

Whether an injunction or other order binds one not a party to the underlying suit or proceeding so that he may be held in contempt for violation is a question that always has troubled the courts. Some early cases purported to announce a sweeping and apparently absolute rule--that an injunction or other order does not bind nonparties. The principle underlying this rule is that due process forbids a court to adjudicate the legal rights and relationships of a person who has not had the opportunity to be …

Coordination Of Laws In A National Federal State: An Analysis Of The Writings Of Elliott Evans Cheatham, Harold G. Maier

Vanderbilt Law Review

This Article is prepared at the request of the Editorial Board of the Vanderbilt Law Review in commemoration. It, however, is not designed as a tribute to Cheatham--the man and the teacher. Tributes of that kind were collected and published four years before his death in the December 1968 issue of the Review. In this essay, I have attempted to analyze Elliott Cheatham's scholarly contributions in the field of conflict of laws, one of his two major areas of legal research. When I began its preparation, it was with a deep feeling of personal involvement since Elliott was responsible for …

Accommodating The Law And Economics Of Price Cutting: The Vice Or Virtue Of Low Prices, Joel J. Finer

Vanderbilt Law Review

Although the interpretation and application of the federal antitrust laws are replete with paradoxes, inconsistencies, and seemingly conflicting premises, few situations illustrate the contradictory nature of federal policy toward industrial structure and business behavior as dramatically as the Justice Department's rejection of General Electric's proposed decree. For example, one primary objective of the Sherman Act is to prevent practices that tend to restrict output and raise prices, and price-fixing agreements are illegal per se because it is unreasonable to believe that they have any beneficial results. Many industries exhibit a high degree of concentration that enables a few firms to …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Torts--Lex Loci Delicti Is Proper Law When Parties Are Domiciled in Different Jurisdictions Unless Displacing That Law Advances Forum State's Substantive Law Purposes Without Impeding Interstate Relations or Predictability of Result

Plaintiff, an Ontario domiciliary, brought an action in New York for the wrongful death of her husband, also a domiciliary of Ontario,who was killed in a collision in that province' while a passenger in an automobile driven by defendant's intestate, a New York domiciliary. Defendant pleaded as an affirmative defense the Ontario guest statute, which restricts a guest's recovery to damages for injuries sustained only as a …

Recent Developments, Law Review Staff

Vanderbilt Law Review

The institution of criminal charges against critical or disfavored legislators by the King of England was the prime factor prompting the long struggle for parliamentary privilege and, in the context of the American system of separation of powers, is the predominant thrust of the speech or debate clause. If the privilege of legislative immunity is to perform its traditional function of permitting legislators to carry out their legislative functions without fear of prosecution or harrassment from the executive and judicial branches, it should be applied broadly to effectuate its intended purpose of preserving the independence of the legislature and public …

The Constitutional Dilemma Of A Person Predisposed To Criminal Behavior, John A. Chandler, Stanley F. Rose

Vanderbilt Law Review

The basic premise of American criminal jurisprudence is that individuals are capable of controlling their behavior.' The threat of incarceration is intended to be a deterrent to antisocial conduct. State and federal penal systems are called "correctional institutions"--implying that a person is incarcerated in order to modify unacceptable behavior. Criminal laws are drafted with goals of discouraging antisocial conduct,punishing and reforming the guilty, and protecting society against dangerous individuals. The first two purposes are served only if a person can respond to negative reinforcement by conducting himself in socially acceptable ways. Individuals incapable of controlling antisocial behavior are not accounted …

State Legislative Control Over The Conditions Of Public Employment, Patricia N. Blair

Vanderbilt Law Review

In 1816, the federal service under President James Madison consisted of 4,000 employees.' By 1950, the federal government had, 120,000 persons on its payroll, while state and municipal governments employed another 4,290,000. Today there are 2,720,000 federal employees and 10,150,000 employees of state and municipal governments.' The emergence of a new labor movement aimed at attaining for public employees the right to bargain collectively, a right guaranteed to workers in the private sector by the 1935 National Labor Relations Act (NLRA), recently has accompanied this expansion of government employment.' National legislation, however, has never extended the right to bargain collectively …

Abortion After Roe And Doe: A Proposed Statute, Mark B. Anderson, H. Michael Bennett, Andrew D. Coleman, Peter Weiss, Richard K. Wray (Chairman)

Vanderbilt Law Review

On January 22, 1973, the United States Supreme Court ruled in Roe v. Wade' that the Texas criminal abortion statute, which proscribed all abortions except "for the purpose of saving the life of the mother,' 'violated the constitutional right of privacy. Justice Blackmun, delivering the opinion of the Court, declared that the concepts of personal liberty and restrictions on state action provided by the fourteenth amendment supported a right of privacy "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."' In a companion case, Doe v. Bolton,' the Court noted several impermissible procedural as well …

Indigent Access To Civil Courts: The Tiger Is At The Gates, Wayne H. Scott

Vanderbilt Law Review

The accusation that justice in America has become a luxury has been heard with increasing frequency in recent years. An often criticized aspect of this perceived discrimination is that the poor are systematically deprived of effective access, and frequently of any access at all, to the judicial process by the varied and burdensome expenses of civil litigation.' Although these financial barriers have been subjected to increasingly successful attacks in the courts, the extent to which they have been lowered remains unclear. Nevertheless, an examination of the steps already taken to alleviate the problem of the indigent civil litigant raises hopes …

Characterization Of Shareholder-Creditor Bad Debt: United States V. Generes Sounds The Knell For Deductions From Ordinary Income, Bland W. Cannon, Jr.

Vanderbilt Law Review

The primary focus of this Note is on the development of the judicial doctrines interpreting the provisions of section 166 as applied to share-holder losses on loans to related corporations. Whether, in any given case, advances by shareholders will be considered loans or capital investments is beyond the scope of this work. For purposes of this study, the existence of a valid debtor-creditor or debtor-guarantor relationship between the corporation and its shareholder will be assumed. A brief description of the statutory scheme of the bad debt and loss provisions will be followed by a discussion of the origins and development …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Horizontal Territorial Restraint--Allocation of Territories Among Members of Cooperative Purchasing Association Is Per Se Violative of Section 1 of the Sherman Act

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Antitrust--Robinson--Patman Price Discrimination Act--Complaint Charging That Profits Derived from Interstate Sales Were Used To Underwrite Allegedly Discriminatory Intrastate Price-Cutting Practices States a Cause of Action Under Section 2(a)

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Bankruptcy--Corporate Reorganization-Trustee in Reorganization Lacks Standing To Sue Indenture Trustee on Behalf of Debenture Holders

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Constitutional Law--Commerce Clause--Exactions on Airport Users by Local Governments Measured by Number of Enplaning Passengers Are Constitutionally Valid

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Constitutional Law--Right to Speedy Trial--State-Imposed Five-Year Delay Does Not Abridge Right to Speedy …

Immunity From Prosecution And The Fifth Amendment: An Analysis Of Constitutional Standards, R. Anthony Orsbon

Vanderbilt Law Review

Transactional immunity, on one hand, affords a witness absolute immunity from prosecution for the offense to which the testimony relates, but testimonial immunity, on the other hand, provides protection only from the use of the testimony itself or any evidence derived' directly or indirectly from it--use and fruits immunity. Until the Supreme Court's recent decision in United States v. Kastigar, conflict over the immunity concept was best manifested by the attempts to formulate an appropriate characterization of the relationship between Counselman v. Hitchcock, which represents the transactional immunity approach, and Murphy v. Waterfront Commissioner of New York Harbor, representing a …

Exclusionary Zoning Practices: An Examination Of The Current Controversy, W. Harold Bigham, C. Dent Bostick

Vanderbilt Law Review

For the last 45 years the idea that local zoning administration is a highly desirable exercise of the state police power has become progressively more entrenched in urban thinking and planning. Although opponents of zoning have quarreled with details of administration or decried the failure of the Supreme Court to continuously oversee implementation of the zoning concept, they have assumed basic Euclidian zoning theory' to be beyond serious challenge. This assumption is no longer valid, for classic municipal zoning is on the firing line and its survival is by no means certain.

Equal Protection, Economic Legislation,And Racial Discrimination, William Silverman

Vanderbilt Law Review

The drive to end racial discrimination now extends beyond blatant racial distinctions to less obvious and less intentional forms of unequal treatment; nonetheless, there still exist laws and governmental programs that are racially neutral on their face but that may have a racially discriminatory impact in practice. Such discrimination can take place when economic and social welfare legislation, lacking a sound economic grounding, attacks symptoms rather than causes and thereby unintentionally compounds the problems facing black people. At the same time, laws that are at the root of unequal treatment seem to go unchallenged. From the point of view of …

Easy Cases, Bad Law, And Burdens Of Proof, Roger B. Dworkin

Vanderbilt Law Review

Easy cases, as well as hard ones, sometimes make bad law. Pickett v. Cooper,' for example, was a straightforward automobile accident personal injury case. Defendant's car, on the wrong side of the road,collided with the car in which plaintiff was riding. Defendant contended that a tire blowout, rather than negligent driving, caused his car to be in the wrong lane, and he introduced evidence to support that contention. Instructing on the doctrine of "sudden emergency," the trial court told the jury to find for defendant if they believed "it [to be] as likely as not" that a tire blowout produced …

Recent Developments, Law Review Staff

Vanderbilt Law Review

The fourteenth amendment provides that "[n]o State shall . ..deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."' The amendment thus explicitly forbids the state to engage in certain conduct, but places no express restriction on the acts of private individuals. Although the Supreme Court has consistently held that state action is a necessary element of a fourteenth amendment violation, the concept of state action was expanded to cover activities arguably private in nature to the extent that by 1970 the Court …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Due Process--Replevin Statutes Allowing Seizure of Property Without Notice and Opportunity for Hearing Violate Due Process Clause of Fourteenth Amendment

Constitutional Law--Right to Counsel--Absent Waiver,No Defendant May Be Imprisoned Unless Represented By Counsel At Trial

Federal Rules of Civil Procedure-Class Actions-Class Action Alleging Similar Injury by Separate Defendants Who Acted Similarly but Independently Allowed Under Rule 23(b)(3)

Securities Regulation--Securities Act of 1933-Access Of All Offerees To Additional Desired Information Required For Section 4(2) Private Offering Exemption

Torts-Joint Tort-feasors--Apportionment of Damages Among Negligent Joint Tort-feasors Based upon Relative Responsibility of Parties

Whither The Concept "Affected With A Public Interest"?, Sterry R. Waterman

Vanderbilt Law Review

We of the law and we who administer the law are challenged today more acutely than ever before. Many serious-minded people question whether the law is or can ever be an instrumentality of social justice.Many of our citizens believe that, irrespective of the precepts of the law,the administration of the law frequently has been used as a device to frustrate the legitimate aspirations of those seeking to participate as equals with other Americans in the benefits of American society. The inclusion of more and more activities as activities "affected with the public interest" is evidence that there are some who …

Charitable Remainder Trusts--A Need For Further Reform?, R. Frank Murphy, Ii

Vanderbilt Law Review

The proposals offered in this Note are meant to suggest that are turn to some form of the flexible, well understood charitable remainder trust of pre-1969 days would prove most satisfactory to the needs of donors, charities, and attorneys. With modifications similar to those recommended above, the familiar concept of traditional income and remainder interests could be reinstated, with its weaknesses eliminated. If reversion to an improved form of the old law is deemed unacceptable,it nevertheless appears that a revision of the tripartite structure of the 1969 Act is mandatory. The complexity and lack of flexibility inherent in the new …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Plaintiff, a major commercial publisher of medical journals,'brought a copyright infringement action for damages against the. United States--specifically, the National Institutes of Health (NIH) and the National Library of Medicine (NLM), agencies of the Department of Health, Education, and Welfare--in the United States Court of Claims.Plaintiff alleged that defendant had infringed its copyrights by making unauthorized photocopies of plaintiffs medical journal articles and distributing them free of charge to library users on a no-return basis. Defendant conceded that it had made photocopies of each of the articles in question and that plaintiff was the record owner of the copyright registrations …

Establishing Minimum Compensation Criteria For Use In Expropriation Disputes, Roger C. Wesley

Vanderbilt Law Review

The basic criteria suggested in this article are not intended to be exclusive determinative factors, and in most cases, mitigative considerations will continue to play a dominant role. It is hoped, however, that the present analysis will spur the organized initiation of additional proposals on standards and criteria, not only by executive departments and parliamentary chambers, but also by organized bar groups and other representatives of the private sector. The cumulative effect of new proposals hopefully will be the positive enlargement of rule of law considerations in expropriation disputes by a draft convention on investment protection, which to date has …

Party Reform, The Winner-Take-All Primary, And The California Delegate Challenge: The Gold Rush Revisited, James F. Blumstein

Vanderbilt Law Review

The legal issues underlying the California delegate challenge at the 1972 Democratic National Convention are the subject of this Article. The Article briefly will sketch some of the recent constitutional developments in party reform litigation. It will argue that winner-take-all primaries, especially in California because of its size, are violations of equal protection as interpreted by the voting rights cases decided during the past 40 years. Finally, it will take the superficially paradoxical position that despite its unconstitutionality, California's winner-take-all primary did not violate the rules governing delegate selection to the 1972 Democratic National Convention; therefore, unless declared unconstitutional by …

Deference Of Jurisdiction By The National Labor Relations Board And The Arbitration Clause, Alan C. Rosser

Vanderbilt Law Review

In 1935, when the Wagner Act was passed, arbitration was not used extensively as a method of settling labor disputes. Most parties to labor disputes relied on the National Labor Relations Board (NLRB) or the courts as means of settlement, rather than binding themselves to the decision of an arbitrator.' Gradually, however, with the increased avail-ability of more skilled arbitrators and the acute awareness of the costs of outside solution, arbitration has become a highly popular method of settling labor disputes. It is estimated that 94 percent of all collective bargaining agreements now provide for arbitration of grievances not settled …

Recent Development, Law Review Staff

Vanderbilt Law Review

Prisons in the United States house approximately 220,000 felons,'95 percent of whom will eventually return to society Most state legislatures have delegated to prison administrative bodies the power both to establish regulations prescribing proper prison conduct and to impose sanctions for their violation. Prison administrators thus have been granted wide latitude in establishing the procedures by which prisoners are determined to be guilty of disciplinary infractions and punished. Frequently, prisoners who allegedly have violated prison standards are not afforded notice of their offenses, are judged by their accusers, and are awarded disproportionately severe punishment, such as solitary confinement or loss …

The New Catv Rules: Proceed On Delayed Yellow, Roscoe L. Barrow

Vanderbilt Law Review

Elites largely govern our nation's current decision-making process.The average citizen's failure to participate in that process perhaps derives largely from his inability to inform himself adequately on all the issues. However, the ability of cable television (CATV) to place each person in complete command of his informational and entertainment environment has thrust society upon the threshold of an electronic communications revolution. Indeed, if CATV is allowed to develop its full potential, the individual will not have to receive information and entertainment passively. Rather, CATV's virtue of two-way communication will permit him to transmit as well as receive information. His access …

Recent Developments, Law Review Staff

Vanderbilt Law Review

In the recent decision of Bradley v. School Board, a Virginia federal court ordered the consolidation of the predominantly black Richmond school district with the surrounding all-white suburban school districts of Henrico and Chesterfield Counties. This decision marks the first time that a court has consolidated two or more autonomous school districts for the purpose of achieving a racial balance in the schools that reflects the racial composition of the consolidated areas as a whole. While Judge Merhige in Bradley punctiliously followed the principles enunciated by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education and its earlier desegregation …

Rule 144: Sec Regulation Of Dispositions Of Securities By Controlling Persons And Private Places, Paul L. Sloan, Iii

Vanderbilt Law Review

In recent years, dissatisfaction with the law that governs the disposition of securities by controlling persons' and private places under the Securities Act of 1933 has been voiced in numerous commentaries.Although criticism has been directed at varying facets of the problem,the displeasure of critics has resulted from two fundamental objections: first, the unnecessary ambiguity that heretofore has enveloped public resale of privately placed securities and, to a lesser degree, resale of securities by controlling persons; and secondly, the failure of the present law adequately to effect the disclosure policy of the Securities Act of 1933 and of the Securities Exchange …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Procedure--Class Actions--Order Dismissing Class Action that Leaves Plaintiff To Litigate a Small Monetary Claim Is Not a Final Appealable Order Under 28 U.S.C. § 1291

Plaintiff consumer, claiming to represent one and one-half million purchasers of defendants" products, filed a class action under section 4 of the Clayton Act, seeking treble damages, costs, and attorney's fees from defendants for alleged antitrust violations. Defendants successfully moved for a stay of proceedings pending the district court's determination of whether the case could be maintained as a class action.The court found the class unmanageable and, in accordance with Rule 23(c)(1) of the …

Special Project - Nashville Model Cities: A Case Study, Richard W. Creswell, Alan Gates, Paul M. Kurtz, Paul R. Regendorf, Samuel W. Bartholomew, Jr., Richard K. Greenstein

Vanderbilt Law Review

The future of the Model Cities program in Nashville is difficult to predict. As of this writing, the program is approaching the end of the first of five action years. The suit filed by the CCC in April 1971, is,more than a year later, still pending. It is, of course, possible that the program may eventually prove successful, but such a result is unlikely. Even if the CCC is replaced as the official citizen participation structure for the program, the ideological constituency from which the group derives its strength will remain. Furthermore, as the CDA continues to build an ad …