Law Commons^™

Population Control: Multidimensional Task, Joseph J. Spengler

Vanderbilt Law Review

For several thousand years two demographic problems have periodically dogged man, population explosion and population implosion or, in less rhetorical terminology, too many people and too many people concentrated at points in space. The ineffectiveness of the solutions proposed for each of these problems has demonstrated that man's propensity for "progress" has continued to swamp his capacity to adapt to the changes he has produced. In sum, man remains confronted with the need to achieve balance between the costs of change and the costs of arresting change. Attempts at solving population problems are conditioned by the means believed available, by …

Book Reviews, Charles Galbreath, George F. Shinehouse, Jr., Norman A. Coplan

Vanderbilt Law Review

How Harmless is Harmless? The Riddle of Harmless Error.

By Roger J. Traynor Columbus: Ohio State University Press, 1970. Pp. ix, 117. $6.00

reviewer: Charles Galbreath

This book is based on the author's experience of more than 30 years on the California Supreme Court and his exhaustive research into the enigma of harmless error. The overriding message is simply that there is no clear explanation for the Supreme Court's preferring the Chapman test of "harmless beyond reasonable doubt" over the California test,which allows the judgment to stand if the particular error did not result in a "miscarriage of justice" in …

The Lawyer And The Private Legal Process, L. Ray Patterson, Elliott E. Cheatham

Vanderbilt Law Review

Private law--particular rules created for and applied to particular individuals to govern their relationships with each other--is a marked characteristic of society. People in a nation of free enterprise with a developing, malleable economy must have the freedom and the power to shape their legal relations with one another through the use of rules of law suited to their goals. Most of this law--contracts, wills, and trusts--has only temporary effect. The terms are limited, and all of it is for a private, rather than a public purpose. The limited scope of private law, however, is not a good measure of …

Probable Cause To Arrest, Joseph G. Cook

Vanderbilt Law Review

Probable cause to arrest is an exceedingly difficult concept to objectify.' The traditional definition was stated in Beck v. Ohio as follows: [W]hether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Judicial opinions frequently manifest empathy with the policeman's plight in attempting to apply this vague standard. While the standard does not mean that the arresting officer must have evidence that would satisfy a fact finder of guilt beyond a reasonable …

Creditors' Ability To Reach Assets Under A General Power Of Appointment, Roy L. Steers, Jr.

Vanderbilt Law Review

Originally conceived prior to the enactment of the Statute of Uses as a means by which freehold legal interests in land might be devised, the power of appointment has maintained its prominent position in American society because of its utility in minimizing death taxes and injecting into dispositions of property an element of foresight otherwise unobtainable. Due to the immense popularity of powers of appointment as estate planning devices, statutory developments in the law of powers have been confined primarily to the tax field, with a resultant neglect of those areas of the law more tangentially related to powers of …

Extending Standing To Nonresidents--A Response To The Exclusionary Effects Of Zoning Fragmentation, Kent H. Mcmahan

Vanderbilt Law Review

This Note is premised on the belief that courts must recognize the standing of adversely affected nonresidents to contest local zoning ordinances in order to insure appropriate consideration of the issues raised by exclusionary zoning practices in the nation's suburbs. To support this premise, the Note surveys the current fragmented status of zoning, the problems attributable to this fragmentation, and then on judicial attempts to resolve the problems. In addition, the Note analyzes the judicial approach to zoning fragmentation, with special scrutiny given to the law of standing as an obstacle to efficacious judicial review. Against this background, the Note …

Declaratory Remedies And Constitutional Change, David L. Dickson

Vanderbilt Law Review

The Federal Declaratory Judgment Act' has now been law for more than 36 years. The debates over whether a purely declaratory judgment can be the product of a justiciable "controversy" in the constitutional sense have long since passed away, set to rest by the language of the Act itself and by the Supreme Court's decision that the Act was authorized by the judiciary article of the Constitution. The last edition of Professor Borchard's great work, Declaratory Judgments, was published in 1941,and the most recent article analyzing the constitutional significance of the Act was published shortly before Chief Justice Warren took …

Civil Liability For Causing Suicide: A Synthesis Of Law And Psychiatry, Victor E. Schwartz

Vanderbilt Law Review

If suicide is a deliberate, intentional act by an individual, how can one person be "civilly liable for causing the suicide of another"? The paradox suggested by this question has caused many courts to shy away from imposing civil liability for causing suicide.' In certain situations,however, a growing number of courts are permitting recovery. Since suicide is on the increase both in numerical terms and in rank as a cause of death in the United States it can be expected that even more tort claims will be brought by parties attempting to fix civil responsibility on someone other than their …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administrative Law--Judicial Review of SEC Decisions--No-Action Letter Under Commission's Proxy Rules Procedures Has Sufficient Finality and Formality to be Reviewable

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Creditors' Rights--Section 77 Railroad Reorganization--Federal Priority Under Section 191 Denied; Interline Balance Claims Granted Priority Under Equitable Six-Months Rule

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Criminal Procedure --Breach of the Peace--State Peace Bond Statute Establishes Criminal Proceedings and Must Satisfy Requirements of Due Process and Equal Protection Clauses

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Criminal Procedure--Presumption of Innocence--Cautionary Instruction to Jury that Presumption of Innocence is Not Intended To Aid the Guilty To Escape is Not Misleading or Erroneous

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Landlord and Tenant Law--Warranty of Habitability Implied by Law …

Representation For The Poor In State Rulemaking, Allan Ashman

Vanderbilt Law Review

After a violent summer of urban unrest and civil disorder, President Johnson established the National Advisory Commission on Civil Disorders in 1967 to find out what happened in our nation's cities, why it happened, and to suggest ways to prevent it from occurring again. One of the findings of the Commission was that from the vantage point of the poor ghetto resident, local government was distant and unconcerned.For the poor person, particularly the poor black ghetto resident, the possibility for effective change either in his personal life style or in the political system appeared remote.' Reflecting upon this gulf between …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Monopolies--Merger of Firm with a Potential Competitor that May Enter the Market by Toe--Hold Acquisition Violates Section 7 of Clayton Act

Antitrust--Private Antitrust Actions Against Air Polluters--Commercial Relationship Between Litigants Not Necessary to Maintain an Action for Violation of Section 1 of Sherman Act

Constitutional Law--Establishment Clause--Tax Exemption for Property Used Solely for Religious Purposes Held Constitutional

Constitutional Law--Voting--Durational Residency Requirement Violates Equal Protection Clause

Creditors' Rights-Attachment-Prejudgment Attachment of Chattels Without Prior Notice and Hearing Violates Due Process Clause of Fourteenth Amendment

Criminal Procedure--Probation Revocation-Revocation of Probation Without a Limited Hearing Violates Due Process Clause of the Fourteenth Amendment

Criminal …

Law Reform And Legal Education, Robert E. Keeton

Vanderbilt Law Review

Painfully slow as the mills of law reform grind, they have moved faster in our generation than in most. This appraisal may seem overly generous to our own day when we reflect on the difficulties and delays encountered in achieving some particular reform. But if we measure progress in another way--comparing what has happened in the last dozen years with what happened in other time periods of similar length--differences emerge. The most easily documented difference concerns the performance of appellate courts of last resort in reforming private law by candidly overruling precedents. In the last dozen years, there have been …

The Right To Be A Recalcitrant Union Member, Neil F. Castaldo

Vanderbilt Law Review

In 1954, the United States Supreme Court considered the problem of union discipline in the case of Radio Officers' Union v. NLRB. The Court clearly stated that the policy of the National Labor Relations Board (NLRB) insures the right of each employee who chooses to join a union to be a "good, bad, or indifferent" member. Although the validity of this phrase seems to be generally accepted, it has never been enforced as an affirmative right. The purpose of this Note is to analyze the embryonic right to be a recalcitrant union member. Since most studies have examined this area …

Boys Markets And National Labor Policy, Stephen C. Vladeck

Vanderbilt Law Review

In 1962, the Supreme Court held in Sinclair Refining Co. v.Atkinson' that section 4 of the Norris-LaGuardia Act barred federal courts from enjoining union violations of no-strike clauses in collective bargaining agreements. Since Sinclair, violations of this type have been the subject of considerable discussion, but have resulted in little litigation. The number of man days lost as a result of no-strike clause violations is minimal and the frequency of these violations is so small that it is difficult to imagine that they have any great influence on the course of industrial relations. Nevertheless, lovers of symmetry have argued that …

"Fair Market Value," "Just Compensation," And The Constitution: A Critical View, W. Harold Bigham

Vanderbilt Law Review

It has become almost an article of faith that "fair market value"constitutes the only fair and workable measure of damages for a landowner whose real property has been taken for public use. The courts apply it woodenly;' the magic words are solemnly intoned to jurors, commissioners, and arbitrators. Even the learned scholars in the field give it at least implicit recognition. Moreover, it continues to flourish despite widespread public dissatisfaction with both the substantive test for damages and the procedures through which the land is obtained. The taking of private property for the federal interstate highway and urban renewal programs, …

Neither Pollyanna Nor Cassandra, But Positive Commitment To Human Values, Jefferson B. Fordham

Vanderbilt Law Review

To me the positive message of the paper is that we should view our condition with a sense of history and a sense of humor and, in that perspective, dwell more upon the good that we perceive in ourselves, our institutions, and our performance. That is fine, but it does not tell us enough. We know that in all ages man has been in no wise more conspicuous than in his inhumanity to man. The record of torture and slaughter during the Crusades and the Inquisition, movements associated with religion, darkens the pages of history.What must be noted is that …

The Future Of America And The Role Of Law, Ray Forrester

Vanderbilt Law Review

On August 22, 1970, Dean Ray Forrester of the Cornell Law School presented this paper to the Southeastern Conference of the Association of American Law Schools and the American Association of Law Libraries meeting in Nashville, Tennessee. Because the question of negativism in the academic community seldom has been raised by a highly respected legal educator, the Vanderbilt Law Review felt that these remarks were particularly significant. To test the reaction of other prominent legal educators to Dean Forrester's position, the Vanderbilt Law Review solicited the comments of the deans of various law schools. This paper and the comments that …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Personal Injury--Intent to Injure Is Not a Prerequisite to Recovery for Police Abuse Under Section 1983

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Constitutional Law--Abortion--Statute Prohibiting Abortion of Unquickened Fetus Violates Mother's Constitutional Right of Privacy

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Constitutional Law--Obscenity--State Statute Allowing Injunction Against Dissemination of Allegedly Obscene Material Prior to Adversary Hearing Not Violative of First Amendment

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Constitutional Law--Right of Privacy--State Statute Requiring Disclosure of All Substantial Financial Interests of Public Officials is Overbroad and an Unconstitutional Invasion of Privacy

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Constitutional Law--Sixth Amendment--Admission of Prior Inconsistent Statements as Substantive Evidence Does Not Violate Right of Confrontation

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Criminal Procedure--Search and Seizure--Warrantless Search of …

State Taxation Of Interstate Business-Looking Toward Federal-State Cooperation, Joseph W. Mathews

Vanderbilt Law Review

This note will review the historical setting of state taxation of interstate commerce and examine the problems created by the diversity of state tax laws. It will further discuss the two different approaches toward solving these problems, investigate the constitutional issues involved in the proposed solutions, analyze their inadequacy, and recommend a federal-state cooperative approach.

Law Students And A Constructive Approach To The Future Of America, John W. Wade

Vanderbilt Law Review

In years past, many intellectuals adhered to a theory of laissez faire. They believed that the way to maintain our economic system in good health was to keep our government and laws from interfering with its natural working. In those days, judges did not make law; they discovered through legal reasoning what the law was and what it had always been. In both fields the theory fell into decline and disfavor. As Justice Cardozo put it, the concept of laissez faire in law went the way of laissez faire in economics. Another theory, of more ancient origin, is that of …

On Dissent, Violence, And The Intellectual, Page Keeton

Vanderbilt Law Review

If I have properly assessed the meaning of Dean Forrester's comments, he stated that: (1) America is now in the midst of an attempted revolution, an attempt to create a new society by force and violence; (2) war, race relations, poverty, environment, and the other festers in our society, while great problems, are not the real causes of the discontent; (3) the attempted revolution is the product of a generation of university teaching and writing which has created the intellectual atmosphere and the state of mind that sustain the conflict. I respectfully dissent while recognizing at the same time the …

Legal Education: A More Optimistic View, Robert B. Mckay

Vanderbilt Law Review

While few would disagree with Dean Forrester's statement that"America is now in the midst of an attempted revolution," several questions naturally arise. Dean Forrester does not identify the nature and goals of the "attempted revolution," but the inference is that he disapproves. One wonders whether he objects to change because it challenges the status quo; whether he disagrees with the direction of the proposed change; or whether he opposes the method, particularly the abruptness, with which change is being forced upon us. Each possibility merits response.

Change Versus the Status Quo. It would be unfair to Dean Forrester to suggest …

Book Notes, Law Review Staff

Vanderbilt Law Review

CONGRESS AND THE PUBLIC TRUST Report of the Association of the Bar of the City of New York Special Committee on Congressional Ethics New York: Atheneum, 1970. Pp. xxvii, 351. $8.95.

How TO TALK BACK TO YOUR TELEVISION SET By Nicholas Johnson Boston: Atlantic Monthly Press, 1970. Pp. ix, 228. $5.75.

THE QUALITY OF THE URBAN ENVIRONMENT Edited by Harvey S.Perloff Washington: Resources for the Future, Inc., 1969. Pp. xiii, 332.$6.50.

WELFARE MEDICAL CARE: AN EXPERIMENT By Charles H. Goodrich, Margaret C. Olendzki, and George G. Reader Cambridge: Harvard University Press, 1970. Pp. viii, 343. $7.00.

Logic Vs. Value Judgment In Legal And Ethical Thought, Thomas R. Mccoy

Vanderbilt Law Review

Drugs. Abortion. Race. War. Dissent. Civil disobedience and disruption. Air, water, noise pollution. The standard fare with which we are assaulted by the daily news. American society is swamped in a sea of questions that appear to defy answer. It is the thesis of this paper that the unanswerability of many social questions persists because of the inadequacy of the thought patterns through which they are approached. These thought patterns fail because they reflect the structure of our language rather than the structure of reality. This thesis is not new; it has been set forth several times in different forms …

Mental And Nervous Injury In Workmen's Compensation, Arthur Larson

Vanderbilt Law Review

"[H]ow could it be real when. . .it was purely mental?" This poignant judicial cry out of the past, which I occasionally quote to put down my psychiatrist friends, contains the clue to almost all of the trouble that has attended the development of workmen's compensation law related to mental and nervous injuries. This equation of "mental" with "unreal," or imaginary, or phoney, is so ingrained that it has achieved a firm place in our idiomatic language. Who has not at some time, in dismissing a physical complaint of some suffering friend or relative, airily waved the complaint aside by …

The Collateral Consequences Of A Criminal Conviction, Thomas R. Mccoy, Walter Matthews Grant, John Lecornu, John Andrew Pickens, Dean Hill Rivkin, C. Roger Vinson

Vanderbilt Law Review

As a general matter [civil disability law] has simply not been rationally designed to accommodate the varied interests of society and the individual convicted person. There has been little effort to evaluate the whole system of disabilities and disqualifications that has grown up. ...As a result, convicted persons are generally subjected to numerous disabilities and disqualifications which have little relation to the crime committed, the person committing it or,consequently, the protection of society. They are often harsh out of all proportion to the crime committed.

Special Project

Vanderbilt Law Review

No abstract provided.

An Evaluation Of Changes In The Medical Standard Of Care, John K. Johnson, Jr.

Vanderbilt Law Review

When a layman is charged with negligence, his conduct is compared with the conduct to be expected from that familiar fictional person-the reasonable and prudent man under the same or similar circumstances.' The defendant's special knowledge or skill is only one of the circumstances to be considered; another is the customary practice of those similarly situated. In the field of medical negligence, however, the conduct of other physicians becomes extremely important. The standard of care to which doctors will be held is determined to a large extent by fellow practitioners.

Failure To Inform As Medical Malpractice, Stephen L. Edwards

Vanderbilt Law Review

It has long been recognized in American law that a proper patient-physician relationship is founded upon the technical competency of the physician. Before the advent of cases dealing with informed consent, a patient who had given his consent to proposed treatment could recover for injuries only when the physician had acted incompetently in the administration of the treatment. Within the past fifteen years, however, the courts have recognized that the maintenance of a proper patient-physician relationship depends not only upon the technical competency of the physician, but also upon the presence of effective communication between the two parties. Therefore, recent …

Private Annuities: Revenue Ruling 69-74-Its Significance,Effect,' And Validity, Robert A. Sams

Vanderbilt Law Review

The private or noncommercial annuity may be defined as the transfer of property from an annuitant-transfer or to a person or organization (referred to as the transferee or obligor) that has not"from time to time"' issued annuity contracts, in exchange for the transferee's unsecured promise to make periodic payments of money for a fixed time or for the life of the annuitant-transferor. Prior to the issuance of Revenue Ruling 69-74,3 both the Internal Revenue Service and the courts had given the private annuity transaction favorable income tax treatment, making it an extremely useful estate planning device. In J. Darsie Lloyd, …