Civil Law Commons^™

The Civil Law Trust, Maurizio Lupoi

Vanderbilt Journal of Transnational Law

It is generally held that trusts are incompatible with the basic assumptions of civil law systems. In order to discuss this statement one would have to inquire, first, what is meant by the term "trusts"; second, what assumed common characteristics of the civil law systems are being envisaged and declared to bein compatible with trusts; and third, why those characteristics should be incompatible with trusts. It is also commonly held that the Hague Convention of 1984 on the law applicable to and the recognition of trusts concerns only those trusts that are foreign to the jurisdiction in which the rules …

International Recognition And Adaptation Of Trusts: The Influence Of The Hague Convention, Adair Dyere

Vanderbilt Journal of Transnational Law

The process of bringing English-style trusts into systems that do not have a similar device is fraught with difficulties. This is especially true with respect to efforts directed towards the creation of a domestic trust law within such a system, but it is also true about the adaptation of legal institutions that is necessary in order to recognize trusts created under foreign law, in accordance with Article 11 of the Hague Trusts Convention. Thus far, it can be said that no country that did not have trusts before the Hague Trusts Convention has reacted to the Convention by adopting a …

Calling Off The Bounty Hunters: Discrediting The Use Of Alleged Anti-Kickback Violations To Support Civil False Claims Actions, Lisa M. Phelps

Vanderbilt Law Review

As skyrocketing health care costs threaten the survival of federally funded health care programs, government prosecutors and private parties are frequently turning to the Civil False Claims Act' as their weapon of choice in waging the "war" on health care fraud and abuse. The False Claims Act is a powerful federal statute that creates liability for the submission of false claims to the federal government. In the health care industry, a typical false claims plaintiff asserts that a health care provider submitted a Medicare or Medicaid claim to the federal government which was "false" because the provider mischarged or overcharged …

The Road Less Taken: Annulment At The Turn Of The Century, Chris Guthrie, Joanna Grossman

Vanderbilt Law School Faculty Publications

It is hardly surprising that certain legal institutions--adoption, wills, and guardianship--have lasted through the centuries. Each meets a different, seemingly timeless need: providing parenting for orphans or abandoned children, distributing property at death, and dealing with legal incapacity, respectively. Similarly, divorce, though it appeared somewhat later, took hold and persisted for an obvious reason-the increasing demand for a legally sanctioned way to terminate broken marriages. The endurance of annulment, however, particularly in the face of increasingly liberalized divorce laws, defies easy explanation. The existence of annulment prior to the mid-nineteenth century is easily explained. Until 1857, England was a "divorceless …

The Future Of Europe Lies In Waste, Daniel W. Simcox

Vanderbilt Journal of Transnational Law

This Note suggests that waste issues provide valuable insight into the European Community. As the Community has developed more fully into a common market, the movement of waste across national borders has caused concern in some member states. Waste has flowed from states with more restrictive environmental standards to those with less restrictive standards. In some states, the perceived increase in waste importation gave rise to public outcry for laws that banned any further waste importation.

After illustrating the problems by discussing a waste crisis in Belgium, this Note examines the European Community's response to such problems. This study reveals …

Common Sense And Other Legal Reforms, Carl Tobias

Vanderbilt Law Review

The Contract with America (the "Contract") was the centerpiece of the Republican Party's strategy in the 1994 congressional campaigns. The Common Sense Legal Reforms Act (CSLRA") was the ninth tenet and a critical constituent of the Contract, which the Republican Party promised that the new Congress would vote upon within one hundred days. Once the Grand Old Party swept into office, capturing the House of Representatives for the first time in four decades, many members of Congress were expressly committed to honoring the Contract with America. Accordingly, nearly one hundred Republican sponsors introduced the Common Sense Legal Reforms Act during …

The O.J. Inquisition: A United States Encounter With Continental Criminal Justice, Myron Moskovitz

Vanderbilt Journal of Transnational Law

October 3, 1995 marked the end of the O.J. Simpson double murder trial, which lasted 474 days and was billed "the trial of the century." After less than four hours of deliberation, the jury acquitted Mr. Simpson of all charges. The following article is a dramatization of how a case similar to the Simpson trial might be handled by a civil-law European criminal justice system.

Utilizing an unusual format, Professor Myron Moskovitz examines and illustrates the differences between the United States and civil-law European criminal justice systems. The author uses a play script inspired by the events in the trial …

Hypnotic Memories And Civil Sexual Abuse Trials, Jacqueline Kanovitz

Vanderbilt Law Review

In the next few paragraphs, the reader will eavesdrop on a psycho- therapy session. During this session, the therapist uses hypnosis, a common technique in clinical practice today. In the past, the legal system has paid little attention to the memory retrieval techniques used in psychotherapy because statutes of limitations have prevented patients from using memories of childhood wrongs uncovered in adult psycho-therapies to bring suit. However, recent changes will force the legal system to examine whether the memory restoring techniques used in psychotherapy can produce memory that is trustworthy enough for the legal system to accept. What follows is …

Eastern Europe: Observations And Investment Strategies, Marek Wierzbowski

Vanderbilt Journal of Transnational Law

It is my impression that right now an American lawyer has no problem getting acquainted with East European laws concerning foreign investment. There are so many translations now in this country that almost every new law is immediately translated into English. The American lawyer can get to this text at almost the same time as the East European lawyer can get to it.

So it is very easy to get acquainted with legal texts of the most important laws from the point of view of foreign investors, but there are some traps. And it is my impression that when lawyers …

Case Comment, Jeffry B. Gordon

Vanderbilt Journal of Transnational Law

This Case Comment discusses the ability of a United States plaintiff to serve process pursuant to the Hague Service Convention on a defendant residing in Japan. The United States Court of Appeals for the Eighth Circuit held that the Convention generally prohibits service on foreign defendants by registered mail. This Case Comment discusses the history of the case, the objectives of the Convention, the law of service of process in Japan, and United States law of service of process on foreign parties under the Federal Rules of Civil Procedure. The author then discusses United States common law interpreting article 10(a) …

Removal, Remand, And Review In Pendent Claim And Pendent Party Cases, Joan Steinman

Vanderbilt Law Review

This Article examines the removability of civil actions that include either pendent claims or pendent parties joined in addition to parties against whom federal questions are alleged. It discusses the remandability of those civil actions or segments of them, and comments on the law governing appellate review of district court remands to state court.' In an effort to reach the wisest resolutions of the various issues posed, it confronts issues of statutory construction, interprets Supreme Court cases, especially Thermtron Products, Inc. v. Hermansdorfer,'and wades in the murky waters of federalism. In the course of this enterprise, the Article analyzes and …

The Concept Of Citizenship: Challenging South Africa's Policy, Joe W. (Chip) Pitts Iii

Vanderbilt Journal of Transnational Law

The concept of citizenship has come to represent the full cluster of civil rights held by individuals as members of modern states. Therefore, of all the "reforms" undertaken by South Africa in response to the economic and political instability of the last two years, the most potentially far reaching was State President P. W. Botha's announcement that citizenship would be restored' to South African blacks. In September 1985, Botha affirmed that some form of citizenship would be extended to all South Africans. Finally, on July 2, 1986, the South African government passed The Restoration of South African Citizenship Act."

The Place Of Procedural Control In Determining Who May Sue Or Be Sued: Lessons In Statutory Interpretation From Civil Rico And Sedima, Douglas E. Abrams

Vanderbilt Law Review

The dust has begun to settle. After dozens of decisions that split the lower courts into insular camps, a sharply divided Supreme Court has decided Sedima, S.P.R.L. v. Imrex Co. Over four dissents, the Court held that in creating the private civil cause of action under the Racketeer Influenced and Corrupt Organizations Act (RICO), Congress did not limit the plaintiff class to persons who allege "racketeering injury." The five Justice majority also held that Congress did not limit the defendant class to persons previously convicted under RICO's criminal provision or the predicate acts that establish the RICO violation. The Court's …

The Insider Trading Sanctions Act Of 1984 And Its Effect On Existing Law, Donald C. Langevoort

Vanderbilt Law Review

The legislative history of the Act shows that its principal drafters regarded those who trade on material confidential information as "thieves," deserving substantial penalties. The adoption of the Act is an expression that the existing laws should be used aggressively to curb the misuse of information. Unfortunately, such a result-oriented direction fits uncomfortably within the confining conceptual structure for rule 10b-5 built in recent years by the Supreme Court. Lower courts therefore must flesh out the law of insider trading based on inconsistent mandates, which will make the future path of the law both unpredictable and interesting.

An Introduction To International Civil Practice, Detlev F. Vagts

Vanderbilt Journal of Transnational Law

As the keynote speaker of this symposium, it is my function to provide a general framework within which the other speakers can develop their specific topics with much more extensive and current knowledge than I have.

In a crude way, the importance of the subject matter can be measured by the increase in the number of cases listed under the West key numbers for "Judgments" which purport to collect all of the cases on the enforcement of foreign judgments in United States courts. The West Modern Federal Practice Digest uses four pages under this caption to list cases for the …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY

By Robert C. Casad

Lawrence: The Regents Press of Kansas, 1981. Pp. 258.$25.00.

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COMPARATIVE LAW YEARBOOK

VOL. 4, 1980

Edited by Dennis Campbell

The Hague/Boston/London: Martinus Nijhoff Publishers, 1981. Pp. 371.

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CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE

By Edward McWhinney

Toronto: University of Toronto Press, 1981.Pp. 231. $20.00.

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THE ENVIRONMENTAL LAW OF THE SEA

Edited by Douglas M.Johnston

Gland, Switzerland: International Union for Conservation of Nature and Natural Resources, 1981. Pp. 419.

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INTERNATIONAL BUSINESS: ENVIRONMENTS AND …

The Spanish Constitution Of 1978: Legislative Competence Of The Autonomous Communities In Civil Law Matters, Juan C. Palau, Jose W. Fernandez

Vanderbilt Journal of Transnational Law

The Spanish Constitution of 1978 had to deal with the issues that emerged with the advent of a democratic regime following the death of General Francisco Franco in 1975. Political pluralism, the relationship between church and state, and the official language of the Spanish state were among the dilemmas facing the Constitutional Commission. Yet the historically sensitive issue of the autonomy of the Spanish regions proved to be the most troublesome. Title VIII of the Constitution provides a political compromise in resolution of this issue although scholars and politicians, including some constitutional draftsmen, have criticized the ambiguity of this title. …

The Civil Investigative Demand: A Constitutional Analysis And Model Proposal, Anthony J. Mcfarland

Vanderbilt Law Review

This Note first traces the initial judicial reaction to administrative demands for information and administrative investigations and delineates the constitutional requirement set forth therein. The Note next examines the development of CIDs and analyzes decisions upholding their constitutionality. This Note contends that most courts either have incorrectly applied current administrative standards to the CID or have failed to apply such standards altogether. The analysis is broken down into six parts,each dealing with a separate constitutional basis for a CID challenge. Because most suits that contest CIDs are based on fourth amendment search and seizure issues, the bulk of this Note …

Liability Of Directors Under The Federal Securities Code, Thomas D. Washburne, Jr.

Vanderbilt Law Review

The proposed solution to the controversy surrounding civil liability under the Code and its relationship to indemnification, contribution, and insurance is not a panacea. It is not as neat as one would desire, and it leaves questions unanswered, such as whether the indemnification and contribution changes ought to apply beyond section 1704. Nevertheless, the proposal is internally consistent--an improvement over the Code's liability and indemnification provisions. Furthermore, it has a sound policy basis, and it attempts to meet the arguments of both sides of the American Law Institute debate. In summary, the proposal is as follows:(1) Define inside directors as …

Liability For Proceeding With Unfounded Litigation, John R. Jones, Jr.

Vanderbilt Law Review

The important issues for this Note are the meaning of "good ground" and the nature of the sanctions available in a given case.One can conceive of many ways in which a pleading could lack good ground. At one extreme, -the attorney might know that the facts alleged were untrue."' Alternatively, the facts alleged, though not positively known to be untrue, might be based solely on speculation--as when the plaintiff, unsure who assaulted him, picked a name from the telephone directory on a hunch and sued that person." Between these egregious cases and the case in which the allegations have good …

Some Practical Questions Concerning The Effect Of The Proposed Federal Securities Code On Civil Litigation, J. Vernon Patrick, Jr.

Vanderbilt Law Review

A major impetus for the launching of the Federal Securities Code project in 1969 was the view, widely held by businessmen and their lawyers, that it was far too easy for investors to bring class action suits under the federal securities laws, seeking multi-million dollar judgments against business corporations, directors, accountants, and lawyers.' The business community's concern about possible exposure to large judgments in securities litigation was heightened by the news that plaintiffs had obtained a judgment in a class action brought against the issuer and several "outside director"defendants in Escott v. Bar Chris Construction Corp., and by several United …

Remedies Under The Tennessee Commercial Code, John A. Walker, Jr.

Vanderbilt Law Review

The scope of this Article is limited to a discussion of the enforcement of consensual' liens under the Uniform Commercial Code as enacted in title 47 of the Tennessee Code. It does not include the panoply of other, nonconsensual remedies such as prejudgment attachment and postjudgment levy. In particular, this Article examines the applicability of the doctrine of election of remedies, the mechanics of repossession, and the rules applicable to the disposition of collateral, primarily as these concepts have been interpreted and applied by the courts of Tennessee.

Introduction: The Federal Securities Code -- Its Purpose, Plan, And Progress, Louis Loss

Vanderbilt Law Review

The first generation of federal securities statutes, vintage 1933-40, has sprouted tentacles in so many areas of the American corpus juris that it is not easy to think of any field in which so much law-and lore-have been built on so flimsy a statutory base. The nineteen-page grandfather statute, the Securities Act of 1933, goes on, with a continually enhanced fertility that belies its years, to yield esoterica like the "140 series" of rules: professed "safe harbors" whose entrances are guarded by Cerberus atop Scylla and a bevy of Sirens cavorting in Charybdis. In the area of "fraud" that peripatetic …

Recent Cases, Richard C. Stark, Gerard T. Nebel, Craig V. Gabbert, Jr., Mary E. Mann

Vanderbilt Law Review

Recent Cases

Administrative Law--Federal Trade Commission Act--Restitution Held Improper in Section Five Cease and Desist Order

Richard C. Stark

Congress enacted section five'° of the Federal Trade Commission Act in 1914 to supplement" the antitrust provisions of the Sherman Act.'" The section declared unfair methods of competition illegal and placed the power to define and prohibit unfair methods in the hands of an independent regulatory commission, the FTC.' In conferring this power, Congress intended this body of experts to educate and guide the business community toward the goal of securing higher standards of business conduct.

Sherman Act, antitrust

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Constitutional …

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 …

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 …

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 …

Judicial Creation Of Direct Actions Against Automobile Liability Insurers: Shingleton V. Bussey, Jason G. Reynolds

Vanderbilt Law Review

Elizabeth R. Bussey commenced a negligence action in a Florida state trial court against Frances R.B. Shingleton for damages sustained in an automobile mishap. The accident itself was a rather ordinary rear-end collision. Out of the ordinary, however, was the fact that the plaintiff joined as a party defendant Shingleton's liability insurer, Nationwide Mutual Insurance Company. The trial judge, following the insurance policy's non-joinder provisions' and the weight of authority in Florida and elsewhere, granted Nationwide's motion that it be dismissed as a party defendant. Plaintiff appealed this order to the Florida District Court of Appeal on the theory that, …

A Comparison Of The Roles Of American And Civil Law Judges In The Development Of The Law, James C. Hair

Vanderbilt Journal of Transnational Law

The traditional distinction between a judge in the Civil Law System and his counterpart in the United States is that the former only applies codified law, while the latter not only applies but also "makes" law through judicial decision. The theory underlying the Civil Law System holds that development of the law is the exclusive province of the legislature and that judges are not to engage in such activity unless the legislature permits it. In France, for example, to ensure that judges do not exceed their authority, the Civil Code prohibits a judge, under threat of criminal sanction, from basing …

Forward: A Symposium On Restitution, John P. Dawson

Vanderbilt Law Review

The editors of the Vanderbilt Law Review deserve praise for arranging this symposium on the neglected subject of Restitution, a great and growing area of our private law whose literature is extra-ordinarily meager. Partly because of this neglect by legal scholars,the practicing profession as a whole remains unaware of the range and variety of restitutionary remedies and the possibilities they offer for solving problems that are otherwise intractable. The volume of restitution cases reported in current advance sheets shows that courts and lawyers are learning to make use of restitution remedies, but the subject still inspires hesitation and diffidence, for …