Law Commons^™

Comment, John W. Wade

Vanderbilt Law Review

The majority opinion in the Illinois Supreme Court held that if a change was to be made, the task was for the legislature, not the court. The five in the majority were not ready to deliver an opinion like that in MacPherson, Henningsen, Greenman.' If they had, there is real reason to believe that a similar consequence of an immediate and substantial judicial following would have developed. Without saying so, they seemed to be influenced by the thought that they would be complete pioneers in uncharted territory, with no precedents to rely upon or to interpret. Are there any judicial …

The Tax Benefit Rule, Claim Of Right Restorations, And Annual Accounting: A Cure For The Inconsistencies, John G. Corlew

Vanderbilt Law Review

The Internal Revenue Code is premised on an annual accounting concept which requires the taxpayer to count up his transactions at the end of the year and remit to the Government taxes based on the occurrences of that particular year. In theory this requires disregarding the factors of prior or subsequent taxable years, despite the irrelation to events of the tax year in question. In most instances, annual accounting poses no special problem. When applied to certain items whose tax impact transcends more than a single taxable year,however, inconsistencies and inequities may result. Two instances in which inconsistent tax treatment …

Book Reviews, T. A. Smedley, E. Blythe Stason

Vanderbilt Law Review

Law of Domestic Relations By Homer H. Clark, Jr. St. Paul,Minn.: West Publishing Co., 1968. Pp. XIX, 754. $12.00.

reviewer: T.A. Smedley

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Law and the Social Role of Science Harry W. Jones, Editor New York: Rockefeller University Press, 1967. Pp. 243. $6.00.

reviewer: E. Blythe Stason

Comment, James Fleming Jr.

Vanderbilt Law Review

Within the past few years, courts have put nearly the whole field of products liability on a strict liability basis, free from the restrictions of privity; they have reversed the rule of non-liability for pre-natal injuries; they have virtually destroyed charitable immunity, while making serious inroads on governmental immunity. Some, of course, have deplored the role of courts in making these changes, and they will probably applaud the Illinois Supreme Court's decision in the Maki case. But for those of us who accept or welcome the present regeneration of judicial law making in the field of torts, further questions are …

International Law, National Tribunals And The Rights Of Aliens:, Richard B. Lillich

Vanderbilt Law Review

There is growing concern everywhere these days with the application of substantive international law rules to individuals as well as to nations. Indeed, after years of relative neglect, the procedural side of international law is coming into its own, a development that is as welcome as it is overdue. To readers who recall Morris R. Cohen's observation that "students of legal history know the truth of the statement that 'the substantive law is secreted in the interstices of procedure,' nor need practitioners be reminded how frequently changes in procedure affect the substantive right of parties,"' this trend is a particularly …

Communist China's Trade Treaties And Agreements (1949-1964), Gene T. Hsiao

Vanderbilt Law Review

Utilizing material gathered by extensive research, the author examines Communist China's trade treaties and agreements, with some emphasis upon their economic and political implications. Also, he analyzes the Communist Chinese use of establishment provisions and national and most-favored-nation treatment. The author has selected the period from 1949 to 1964 due to the existence of an official collection of treaties compiled by the Peking government for this period. Although the collection has not been available since 1964, the authors examination of secondary official source materials has revealed no significant change in the regime's attitude, and therefore, the materials contained in the …

Book Reviews, Richard G. Singer, Alfred H. Knight, Iii

Vanderbilt Law Review

Counsel on Appeal Edited by Arthur A. Charpentier New York: McGraw-Hill, 1968. Pp. xi, 223.

reviewer: Richard G. Singer

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Law Without Sanctions By Michael Barkun New Haven and London: Yale University Press, 1968. Pp. 175. $6.50

reviewer: Alfred H. Knight, III

Legislation--The Fair Packaging And Labeling Act: Its Legislative History, Content, And Future, Wesley E. Forte

Vanderbilt Law Review

The Fair Packaging and Labeling Act (FPLA), which became effective on July 1, 1967, was designed to protect consumers by requiring informative labeling and nondeceptive packaging for consumer commodities. The statute has been described as "an information bill. The first part is information largely about the label .... The second part of the bill is really, in a way, to try to eliminate the confusion in words so we have a common terminology, so we all speak the same language.... It is like establishing an alphabet ... in size designations." The author seeks to provide an insight into the new …

The Legal Philosophy Of John Marshall, Douglas A. Poe

Vanderbilt Law Review

One of the greatest and most significant constitutional enigmas with which the Supreme Court has grappled during the past two decades has concerned the proper delineation of the first amendment's prohibition against the abridgment of "the freedom of speech." The range of problems confronted has extended from congressional investigations to state obscenity laws, from sit-in demonstrations to the provision of legal counsel by labor unions for their members. An all-encompassing and consistent theory of the first and fourteenth amendments has yet to be articulated by the Court, a situation which is hardly unexpected in view of the disparate claims asserted …

International Law, National Tribunals And The Rights Of Aliens: The Latin American Experience, Frank G. Dawson

Vanderbilt Law Review

Latin America is today undergoing a profound technological revolution for which the United States is largely responsible, and which is transforming the continent in a manner and at a pace never envisioned by nineteenth century alien entrepreneurs. Communication and transportation media developed within the last fifty years have created new demands for, and dependencies upon, the commercial products and luxuries of the mechanized world and have precipitated demands for radical change in outmoded economic and political patterns. This has inspired programs for economic integration on the international level, and, within individual nations, for industrialization and product diversification to limit dependence …

The Alien's Access To Local Remedies: The African Commonwealth Countries' Experience, Ivan L. Head

Vanderbilt Law Review

Of the 27 members of the Commonwealth of Nations, 11 are located on the continent of Africa. They range in size from Nigeria, with an area of 356,000 square miles and a population of 60 million, to The Gambia, with an area of 4,000 square miles and a population of 350,000 persons. Prior to 1957 all of the 11 States were colonies of the British crown. In little more than a decade they have all gained political independence-one hundred and six million people residing in autonomous communities which are, in the words of the 1926 Balfour Declaration, "equal in status, …

Bosch And The Binding Effect Of State Court Adjudications Upon Subsequent Federal Tax Litigation, William E. Martin

Vanderbilt Law Review

One of the unique facets of American federalism involves the interaction of state court decrees which determine or characterize an individual's property rights with subsequent federal court litigation which imposes the federal tax burden upon those rights. While Congress determines what relationships are to be taxed, state law creates and state court adjudications measure these relationships.' In 1934 the Supreme Court formulated the standard that the state court decision was to be followed by a federal tax court in the absence of collusion, since the decree established the state "law" in regard to the relevant property. However, the definitional and …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases --

Constitutional Law--Obscenity--Materials May Be Obscene for Minors without Being Obscene for Adults

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Constitutional Law--Standing-Federal Taxpayer Has Standing To Challenge Federal Expenditures Violating Specific Constitutional Prohibition

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Copyright--Telecommunication--CATY Carriage of Copyrighted Material Does not Constitute Infringement

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Criminal Law--Exclusion for Cause of Prospective Jurors With Scruples Against Death Penalty Violates Due Process

Vertical Conflicts: The Role Of State Law In Suits Under Section 301, Edward J. Hardin, Joseph C. Miller

Vanderbilt Law Review

One of the most difficult practical problems posed by our federal system arises when the judicial institutions of one law-making authority are enlisted to enforce and protect rights created by another. While the United States Supreme Court through its appellate jurisdiction is the institution charged with the final responsibility for overseeing a satisfactory solution to this problem, and while the Court can indicate how competing interests are to be harmonized in specific controversies and provide some principles which may be useful in different contexts, it cannot review every state 301 suit. In the long run, success depends upon the earnest …

International Law, National Tribunals And The Rights Of Aliens: The West European Experience, Peter E. Herzog

Vanderbilt Law Review

The local remedies rule is usually considered a device to accommodate the legitimate desire of states to preserve their own sovereignty with the equally legitimate desire of states to protect their nationals who have suffered injury abroad. It is obvious that the adequacy of the rule in serving the second of these ends will depend on the nature and quality of the local remedies available. In turn, the effectiveness of local remedies in protecting the rights of aliens will depend on a variety of factors. Most importantly, there is the adequacy of the substantive legal rights in the fields of …

Sex Discrimination In Employment Under Title Vii Of The Civil Rights Act Of 1964, Anthony R. Mansfield

Vanderbilt Law Review

On July 2, 1964, President Johnson signed into law the Civil Rights Act of 1964,' the most far-reaching civil rights legislation in history.Much has been written about the act, but almost without exception the writers have been concerned with the ban of discrimination in employment on the basis of race or color. But the most radical and troublesome characteristic of Title VII of the Civil Rights Act is its outlawing of employment discrimination based on sex. It is the purpose of this note to examine this largely ignored aspect of the act. The inquiry will first examine the regulation of …

Conflict Of Laws -- Constitutionality Of State Statutes Governing Ability Of Nonresident Aliens To Receive Property Under American Wills: Zschernig V. Miller, Richard N. Hale

Vanderbilt Law Review

An excellent illustration of the vertical conflict of laws problem involves the ability of nonresident aliens to receive property under American wills. Traditionally, under the American federal system,the acquisition and transmission of property located within a state has been controlled by state law. Yet article I, section 10 of the United States Constitution imposes strict limitations on a state's power to deal with matters having a bearing on international relations, such matters being within the ambit of the national government. The supremacy of the national government in the general field of foreign affairs has been given continuous recognition by the …

Appellate Review Of Legal But Excessive Sentences: A Comparative Study, Gerhard O.W. Mueller, Fre Le Poole

Vanderbilt Law Review

Classical penology was conceived in France in the eighteenth century, and then eclipsed all over the world in the nineteenth, when Lombroso conjured up the picture of the born criminal. It was finally laid to rest in the United States in the twentieth century. Its basic tenet had been simple enough: the legislature in its infinite wisdom would seek and find the appropriate punishment for every crime.This can be accomplished if a crime is defined narrowly enough, perhaps by the creation of subcategories of that crime, so as to encompass all potential perpetrators who will each incur the same amount …

The Legalization Of Marihuana: A Realistic Approach, Part I, Law Review Staff

Vanderbilt Law Review

All present indications point to an increase in marihuana use throughout the United States. Twenty-five years ago, the drug was found almost exclusively among the working class and minority groups, but the present trend has been toward increased use among people in the middle and upper income and social strata of society. As a result of this trend, the "marihuana problem" is gaining wide-spread prominence. More and more individuals, especially youth,are being subjected to the severe penalties associated with possession and use of marihuana. Not only are people becoming more aware of the legal punishments, but existing facts as to …

Foreign Corporations And Local Corporate Policy, Stanley A. Kaplan

Vanderbilt Law Review

This article will not attempt to document the thesis that there are corporate abuses or that an enabling act is less desirable than a regulatory type of statute. It is sufficient to assert or presume that there may be internal corporate abuses and that it may be desirable for some states, if they so choose, to have corporation statutes which are more than enabling acts and which limit or regulate specified aspects of corporate conduct. The question of whether it is feasible for a state to maintain a corporation statute which attempts closely to regulate the internal affairs of the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Significant Interest Doctrine Extended to Marital Property Litigation

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Constitutional Law-Search and Seizure--Fourth Amendment Restrictions Apply to Electronic Eavesdropping When Conversations Are Private--Physical Trespass Test Discarded

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Constitutional Law-Section 5(a) (1) (D) Prohibiting Members of Communist-Action Organizations from Employment in Defense Facilities Held Unconstitutional Infringement Upon Freedom of Association

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Criminal Law--Evidence-Unauthorized Juror View Violates Sixth Amendment Right to Confrontation

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Domestic Relations--Intentional False Representation of Pregnancy Grounds for Annulment

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Income Tax--Corporations--Attorneys' and Accountants' Fees Incurred in Sale of Assets Pursuant to a Section 337 Liquidation Are Not Deductible

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Interest--Usury--Charging Debtor with Statutory Maximum Loan Fees …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Unincorporated Divisions of a Corporation May Be Separate Entities for Purposes of Antitrust Laws

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Constitutional Law--One-Year Residence Requirement as Condition of Eligibility for State Welfare Aid Held Unconstitutional

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International Law--Sovereign Immunity and Act of State--Hickenlooper Amendment Precludes Assertion of Act of State Where Act Is Violative of International Law

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Products Liability--Lender Held Liable for Gross Defects in Housing Development It Had Financed

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Taxation--Constructive Ownership Rules Automatically Applied to Section 302(b) (1)Dividend Equivalency Test

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Taxation--IRS Rules Organization Which Discriminates on Basis of Race Not Charitable

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antitrust, constitutional law, international law, products liability, taxation

Collective Bargaining: A Management View, Robert Abelow

Vanderbilt Law Review

In the area of grievance and arbitration machinery, unions are demanding protection against damage claims and court actions and insisting that arbitration be the sole and exclusive remedy for all disputes. Not only are unions insisting upon arbitration of grievances arising under the contract, but they are also insisting upon arbitration of other types of disputes growing out of the relationship between the parties, whether covered by the contract or not. Unions also seek immunity from damage claims in the event of so-called "wildcat strikes" and fiercely resist provisions which would enable management to obtain relief from courts when "no-strike" …

The Choice Among State Laws In Maritime Death Cases, David P. Currie

Vanderbilt Law Review

This article is about choice of law, not jurisdiction. Suffice it that the court of appeals was prepared to equate a damp Convair with a Cunarder. It is a very interesting fact that in admirality cases, unlike diversity cases, the governing substantive law, in whatever court, is predominantly federal; the Supreme Court has consistently held that the grant of admiralty jurisdiction to federal courts by the Constitution gives federal judges power to create federal decisional law, although the similarly worded diversity grant does not. If this distinction is justifiable, it must be because of the different purposes the Court has …

Joint Business Ventures In The Central American Common Market, Michael W. Gordon

Vanderbilt Law Review

The European Economic Community's Treaty of Rome was referred to by Paul Monet as the first great anti-trust law in Europe. This view is undoubtedly predicated on the belief that the Treaty of Rome would break up the large cartels existing in the individual European nations by providing relatively uninhibited competition from other nations. However, this has not proved true since many of the old cartels remain strong. Conversely, other individuals expressed concern about the proposed EEC and feared that giant European cartels might develop. These concerns equally proved to be erroneous. With respect to the CACM, at least one …

Legal Problems In Donations Of Human Tissues To Medical Science, Author Unidentified

Vanderbilt Law Review

On December 3, 1967, the first human heart transplant was performed by Dr. Christian Barnard in Capetown, South Africa.' Although the achievement received a great deal of attention, it is clear that its principal import is in the perfection of new surgical techniques, rather than in conceptual innovation. Organ transplants have been performed for many years, from the simplest, a blood transfusion,to more complex and hazardous therapeutics, such as skin grafts and kidney transplants. Anatomically, the heart is no more important or necessary an organ than the kidney or the liver, but common subjective notions of the heart's central function …

Presumptions, Burden Of Proof And The Uniform Commercial Code, W. Harold Bigham

Vanderbilt Law Review

The Uniform Commercial Code' represents an attempt to codify,to clarify and to improve the substantive law of commercial transactions. Even a summary examination of the Code impresses one with the magnitude of this ambitious undertaking to reform so huge a body of substantive law. Inevitably, such a project must shade over into areas of adjective law and problems of proof. Whether through inadvertence or failure of the draftsmen to solicit the aid of persons whose expertise is outside the substantive law of commercial transactions, it is precisely at the points where substantive and procedural law meet in the Uniform Commercial …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Torts--Law of Jurisdiction with Predominant Interest in Resolution of Issue Applied

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Constitutional Law--Owner of Private Subdivision May Refuse To Sell to Negroes

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Eminent Domain--Compensation for Substantial Impairment of Riparian Owners' Right of Access Denied

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Taxation--Professional Service Corporations--Kintner Regulations Held Invalid

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Taxation--Recovered Charitable Contributions, Previously Claimed as Deductions, Are Gross Income In Year of Receipt

Tax Problems In Sales To Controlled Corporations, Brian C. Ellis

Vanderbilt Law Review

Mr. Ellis examines the tax consequences arising when a taxpayer sells appreciated property to a controlled corporation in order to realize a capital gain for himself as well as to increase the basis of the property. He points out the dangers inherent in such a transaction and suggests precautions which should be taken to obtain favorable tax treatment. The author concludes that a taxpayer transferring appreciated property to a controlled corporation may achieve substantial tax benefits because of the relative ineffectiveness of sections 351 and 1239; however, it will be almost impossible for a taxpayer to recognize a loss on …

The Use Of Tests In Promotions Under Seniority Provisions, Aubrey L. Coleman, Jr.

Vanderbilt Law Review

The testing requirements enunciated by the 1964 Civil Rights Act and the Equal Employment Opportunity Commission to eliminate certain types of discrimination through tests will assuredly have application in the further development of sound, overall testing programs for all employees. While at present very few contracts have provisions with respect to testing, undoubtedly most future agreements will. This development should reduce the number of disputes, since requirements now imposed by arbitrators will be written into bargaining agreements. While there will still be disagreements over whether the tests were properly evaluated, controversies as to whether the tests are specifically related to …