Labor and Employment Law Commons^™

Legal Research In The Federal Republic Of Germany: A Concise Presentation Of Basic Publications, Ralph Lansky

Vanderbilt Journal of Transnational Law

This Article provides information about legal literature and research in the Federal Republic of Germany. Twenty-four basic works are reviewed, including a dozen important law books and legal periodicals and a dozen legal bibliographies that help to locate additional legal information. In addition, a few other publications are briefly discussed. This Article addresses the use of selective legal materials and as a result is very basic. Its objective is to introduce the novice to German legal literature.

Most of the books concern the law of the Federal Republic of Germany. A few that are published in that country cover comparative …

Book Reviews, Horace B. Robertson, Jr., W. David Slawson

Vanderbilt Journal of Transnational Law

The New Nationalism and the Use of Common Spaces: Issues in Marine Pollution and the Exploitation of Antarctica Edited by J. Charney Totowa, New Jersey: Allenheld Osmun, 1982.Pp. ix, 343.

Reviewed by Horace B. Robertson, Jr.

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Law and Inflation By Keith S. Rosenn Philadelphia: University of Pennsylvania Press, 1982. Pp. xxxix, 451.

Reviewed by W. David Slawson

Book Reviews, David M. Helfeld, Robert N. Covington, Howard J. Taubenfeld

Vanderbilt Journal of Transnational Law

U.S. Multinationals and Worker Participation in Management: The American Experience in the European Community By Ton DeVos Westport, Conn.: Quorum Books, 1981. Pp. 229.

Reviewed by David M. Helfeld

Cooperation between Management and Labor By Walter Kolvenbach Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1982. Pp. 89. Dfl. 65.00, $26.00.

Reviewed by Robert N. Covington

Utilization of Outer Space and International Law By Gijs Bertha C.M. Reijnen. Amsterdam, Oxford, New York: Elsevier,1981. Pp. 179. $65.30.

Reviewed by Howard J. Taubenfeld

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

FORCED ENTRY OF THE SINGLE CABIN OF A 27-FOOT SAILING SLOOP TO CONDUCT A DOCUMENT AND SAFETY INSPECTION Is NOT AN UNREASONABLE SEARCH--United States v. Thompson, 710 F.2d 1500(11th Cir. 1983).

EXCLUDABLE ALIENS HAVE A CONSTITUTIONAL RIGHT TO A HEARING AFTER THE INITIAL PERIOD OF DETENTION--Fernandez-Roque v. Smith, 567 F. Supp. 1115 (N.D. Ga. 1983).

EXCLUSIONARY RULE BARs USE IN DEPORTATION PROCEEDINGS OF EVIDENCE OBTAINED BY INS OFFICERS IN VIOLATION OF THE FOURTH AMENDMENT--Lopez-Mendoza v. Immigration and Naturalization Service, 705 F.2d 1059 (9th Cir. 1983) (en banc).

LABOR UNION HAS STANDING TO MAINTAIN ACTION FOR VIOLATION OF DUE PROCESS RIGHTS …

Back To Square One: Estoppel Against The Government After Immigration And Naturalization Service V. Miranda, Gerald J. Pels

Vanderbilt Journal of Transnational Law

In this nation of immigrants, few matters of public policy arouse more intense or divisive public debate than the subject of change in our immigration and naturalization laws. Presently, our system of immigration laws, which is grounded upon antiquated procedure, is being tested by new problems. For example, the increase in political asylum cases and the influx of aliens from the third world have posed new challenges for these outdated procedures. The 97th Congress considered adopting the Simpson-Mazzoli bill in 1982 to alleviate the problems.

The Senate passed the Simpson-Mazzoli bill on August 17,1982, but the House did not act …

Rule 10b-5-The Equivalent Scope Of Liability Under Respondeat Superior And Section 20(A)-Imposing A Benefit Requirement On Apparent Authority, Carol M. Lynch

Vanderbilt Law Review

This Note demonstrates that the scope of employer liability for employees' rule 10b-5 violations is no broader under a proper application of respondeat superior than under section 20(a). This Note does not address the question whether respondeat superior applies under rule 10b-5, but rather how courts should apply it.

Part II examines the majority, minority, and Third Circuit decisions on employer liability. Part III discusses the traditional analysis under both respondeat superior and section 20(a) and compares the scope of liability under each one. Part III concludes that except for an employer's liability for acts that are within an employee's …

Baseball's Third Strike: The Triumph Of Collective Bargaining In Professional Baseball, Robert A. Mccormick

Vanderbilt Law Review

Since the inception of professional baseball, team owners have imposed limits on the freedom of players to negotiate contract terms. In this article Professor McCormick traces the history of attempts by professional baseball players to obtain contractual freedoms through the use of the antitrust and labor relations laws, attempts that culminated with the players' strike of 1981. Although players in other team sports successfully have utilized antitrust laws to increase player bargaining power, Professor McCormick argues that labor law has provided baseball players the only effective means to gain increased contractual freedoms. Professor McCormick concludes that player-owner disputes over the …

Back Pay In Employment Discrimination Cases, James L. Hughes, David R. Jennings, Charles D. Maguire, Jr., Betsy G. Shain, Jay L. Tobin, Jay F. Whittle, Jr.

Vanderbilt Law Review

This Special Project examines the back pay decisions and analyzes the problems that have confronted the courts dealing with this remedy for employment discrimination in the context of Title VII and section 1981. Because of the enormity of the issues that have arisen in Stage I of the proceedings, however, and the extensive coverage given those problems by the courts and commentators, the Special Project will deal only with the recovery stage, or Stage II, of the litigation. Consequently, the reader should assume that liability for employment discrimination has already been established in each of the cases discussed below. Before …

Limiting The Right To Terminate At Will -Have The Courts Forgotten The Employer?, Charles A. Brake, Jr.

Vanderbilt Law Review

This Note examines the extent to which courts should apply the public policy exception to abrogate the common-law right of an employer to terminate at will. Although some limits must be placed upon employers in order to protect those employees who lack adequate bargaining power, this Note proposes that the courts should strike a balance among the interests of the employer, the employee, and society. This balance can be achieved by limiting the public policy exception to those instances in which an employee is discharged in contravention of a legislatively articulated public policy. This approach would achieve equitable results since …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

A Cargo Container Used to Ship Packaged Units is not a "Package" for Purposes of Limiting the Carrier's Liability for Loss under COSGA

Exemption from Compulsory Military Service will not Act as a Bar to Citizenship for an Alien if the Classification was later Changed to Make Him Eligible to Serve

Indeterminate Detension of an Excludable Alien in a Maximum Security Prison, Pending Unforeseeable Deportation, violates International Law

Patentholders do not Violate Antitrust Laws by Licensing only Foreign Patents even though the Patent Dependency created Limits Domestic Competition

Arbitral Tribunal lacks Jurisdiction to Hear the Claims of a Corporation Qualifying …

Discharge Of Supervisors For Union-Related Activity: An Examination Of "Pattern Of Conduct" Analysis, Michael L. Dagley

Vanderbilt Law Review

Recent Board decisions such as Brothers Three Cabinets suggest that the Board has frequently contravened congressional intent by extending the protection of the Act to cover supervisors. This Note begins with an examination of the legislative history of the Taft-Hartley Amendments, focusing upon the congressional intent behind the exclusion of supervisory personnel from the protection normally afforded employees under the Act. The Note then traces the historical development of supervisory discharge law and analyzes the development of the "pattern of conduct" standard. Finally, the Note investigates the inherent analytical problems with the "pattern of conduct" standard, examines the inconsistent application …

Congress, The Courts, And Sex-Based Employment Discrimination In Higher Education: A Tale Of Two Titles, Joel W. Friedman

Vanderbilt Law Review

This Article will examine the manner in which the federal courts have handled sex-based employment discrimination claims against colleges and universities. Specifically, the Article will suggest that most such judicial opinions have construed and applied the applicable federal laws in a manner inconsistent with Congress' articulated desire to promote equal employment opportunity in, and to remove the taint of sex-biased decisionmaking from, the academic profession. In light of this judicial misconstruction of the remedial statutes, the Article proposes a different framework for analyzing Title VII and Title IX claims that will more adequately promote Congress' twin objectives.

Osha After Ten Years: A Review And Some Proposed Reforms, Mark A. Rothstein

Vanderbilt Law Review

This Article reviews the first ten years of rulemaking, enforcement, and adjudication under the Act. The Article identifies various problem areas that have developed in these activities and for each area discusses whether past and present efforts to meet the problems have been adequate. In light of the Act's troubled history, the Article suggests several amendments to the Act, as well as administrative reforms, to facilitate the Act's implementation. The Article does not, however, attempt to address all of the myriad legal and policy issues or all of the Act's provisions that would benefit from congressional redrafting. Instead, the Article …

Recent Development: Amenability Of Foreign Corporations To United States Employment Discrimination Laws, Kevin C. Tyra

Vanderbilt Journal of Transnational Law

As the Linskey court noted, the existence of employment exemption provisions in over thirty commercial treaties, if liberally construed, would create a loophole in Title VII enforcement. Given the ever-increasing number of United States employees of foreign-owned corporations, liberal treaty constructions could decrease the scope of Title VII.

Nevertheless, the effect on international commerce must be considered. Although equal employment opportunity is a laudable goal, this goal may conflict with the values of other cultures, as it did with the culturally-based organization and management philosophy of the C. Itoh Co. A more prudent approach to the problem of subsidiaries might …

Doing Good The Wrong Way: The Case For Delimiting Presidential Power Under Executive Order No. 11,246, Andrie K. Blumstein

Vanderbilt Law Review

The Note has demonstrated that the concept of affirmative action as embodied in the Executive Order Program induces race-conscious employment programs by federal contractors in contrast to the norm of race-neutral decision making imposed by the Civil Rights Act of 1964. The Note has also argued that a nexus analysis must define the parameters of executive authority to promulgate the Executive Order Program. In other words, there must be a close relationship between the alleged source of executive authority and the President's actual exercise of that authority...

This Note attempts to refine the Presidential power analysis of Youngstown Steel and …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Definition of Seaman under the Jones Act Need Not be Restricted to Person Assigned to Only One Vessel

Fourth Amendment Does Not Bar Warrantless Fishing Vessel Searches Authorized by the Fishery Conservation and Management Act of 1976 to Protect Fisheries in the Conservation Zone

Properly Extradited Fugitive Not Entitled to Judicial Hearing Challenging Enlargement of Original Warrant of Surrender

Visa Numbers Wrongfully Charged Against Western Hemisphere Quotas are Reissued According to an Historical Approach Rather than Chronological Order

Payment of Irrevocable Letter of Credit May Not be Enjoined on Grounds of Instability of Foreign Governments

Expropriation of a Contractual Right …

Whither The Commission On Human Rights: A Report After The 35th Session, Gerson Smoger

Vanderbilt Journal of Transnational Law

The statement that the Commission on Human Rights "functions as the focal point of the United Nation's concentration on the international observance of human rights" is fraught with definitional inconsistencies. Throughout its existence one of the main problems faced by the members of the Commission has been to agree upon the appropriate limits of the expression "human rights." The question arises whether the term includes the right of a retired school teacher to speak out against his country's employment practices or his entitlement to receive social security after his departure from the teaching force. If these are both considered to …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

A Time Charterer is not Liable as Owner Pro Hac Vice for Injuries Incurred by Employees of the Vessel's Owner in the Course of their Employment

U.S. Violation of Regulation in Deportation Proceeding Renders Alien's Deportation Unlawful only if Such Violation Prejudiced the Alien's Interests Protected by the Regulation

Where Information Regarding Weight of Suitcase Checked with Airline is Undocumented, Liability Limitation of the Warsaw Convention does not Apply

Cultural Exchange Agreements involving Payment Constitute Commercial Activity and are not Immune under the Foreign Sovereign Immunities Act

Current State Action Theories, The Jackson Nexus Requirement, And Employee Discharges By Semi-Public And State-Aided Institutions, Thomas R. Mccoy

Vanderbilt Law Review

The purpose of this Article has been to reestablish the continued vitality of the several branches of the state action doctrine in the face of recent decisions that have strained noticeably to avoid implementation of one or more elements of the doctrine, often by an illogical insistence on the application of the Jackson nexus requirement. At least in the employment discharge cases, the regular findings of no state action should not be read as casting doubt upon the continued viability of the various elements of state action doctrine, much less as indications that all elements except state-action-by-state-regulation are so obviously …

A Comparative Review Of Public And Private Enforcement Of Title Vii Of The Civil Rights Act Of 1964, Robert Belton

Vanderbilt Law Review

The efforts of the EEOC, the Department of Justice, and other federal and state agencies during the first decade of enforcement have been the subject of a great deal of commentary and review. Much of this commentary has been critical. Private enforcement of Title VII has produced the major legal developments, but these efforts have received little attention in the literature. This Article therefore will present a comparative review of governmental and private enforcement efforts under Title VII. A brief overview of the historical efforts to eliminate employment discrimination prior to Title VII is necessary to place private enforcement efforts …

Is There Arbitration After Burns?: The Resurrection Of John Wiley & Sons, Sue J. Henry

Vanderbilt Law Review

The decisions of the United States Supreme Court in John Wiley & Sons, Inc. v. Livingston, NLRB v. Burns International Security Services, Inc.,' and Howard Johnson Co. v. Detroit Local Joint Executive Board' have raised, but left unanswered, two significant questions regarding the proper balancing of the parties' interests: (1) does the successor employer's duty to arbitrate with the union under the predecessor's contract survive a corporate change?;and (2) if so, does the arbitrator have the power to impose the substantive terms of the predecessor's labor agreement on the successor? To answer these questions, this Article initially will analyze in …

Nlrb Jurisdiction Over Foreign Governments, Dan T. Carter

Vanderbilt Journal of Transnational Law

In State Bank of India the National Labor Relations Board reversed its discretionary abstention policy and asserted jurisdiction over the American operations of a foreign government employer. Previously the Board had declined to assert jurisdiction over these employers out of deference to foreign sovereigns, and because of the Supreme Court's admonition against extraterritorial application of the National Labor Relations Act in the absence of "an affirmative intention of the Congress clearly expressed." The Board now believes that neither public policy nor the policies of the NLRA can justify abstention. Although the Board has deemed the recently enacted Foreign Sovereign Immunities …

Wealth Effects And Earnings Premiums For Job Hazards, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

DAM Smith (1937) observed that "the whole of the advantages and disadvantages of the different employments of labor and stock must, in the same neighborhood, be either perfectly equal or continually tending to equality." If a job poses health and safety risks that are especially great, a worker will require higher levels of compensation or greater non-pecuniary benefits in order for him to accept the risky job. Despite the fact that the theory of compensating differentials is almost two centuries old, it has been only recently that this theory has been subjected to successful empirical tests. The purposes of this …

Title Vii - Seniority - The Relevant Scope Of Inquiry For Determining The Legality Of A Seniority System, James D. Spratt, Jr.

Vanderbilt Law Review

Title VII of the Civil Rights Act of 1964, which became effective on July 2, 1965, was enacted to eliminate artificial barriers to employment that historically have deprived minorities and women of employment opportunities. Section 703 of the Act thus makes discrimination on the basis of race, color, religion, sex, or national origin an unlawful employment practice. In order to obtain relief from a discriminatory employment practice, an aggrieved party must demonstrate that the defendant intentionally engaged in the unlawful practice. Because the broad language of sections 703(a), 703(c), and 706(g) fails to define the terms "discriminate" and"intentionally," the effectiveness …

Alternative Proposals For The Regulation Of An Emergency Strike In The Health Care Industry, Susan A. Jones

Vanderbilt Law Review

In order to give approximately 1,400,0001 health care employees the protection enjoyed by employees under the National Labor Relations Act (NLRA), Congress amended the Act in 1974 to make health care institutions "employers. Recognizing the public's dependence upon the unique services provided by health care facilities, Congress was hesitant, however, to extend coverage under the Act to health care employees without providing additional safe-guards. These safeguards are embodied in the following special provisions: (1) the extension of the sixty-day notice requirement for modification of an expiring contract to ninety days; (2) the creation of a thirty-day notice requirement of a …

The Role Of The Nlrb And The Courts In The Collective Bargaining Process: A Fresh Look At Conventional Wisdom And Unconventional Remedies, Charles J. Morris

Vanderbilt Law Review

The amended National Labor Relations Act (the Act) guarantees that "employers, employees, and labor organizations each recognize under law one another's legitimate rights in their relations to each other."' In furtherance of this objective, the Taft-Hartley and Landrum-Griffin amendments substantially increased the Act's protection of individual employee rights and sharply restrained many union activities that were deemed economically and socially undesirable. Those amendments, however, left intact the basic structure of the original Wagner Act providing for establishment of collective bargaining whenever a majority of the employees in an appropriate bargaining unit designate a bargaining agent to represent them. Once a …

American And British Employment Discrimination Law: An Introductory Comparative Survey, Robert N. Covington

Vanderbilt Journal of Transnational Law

Age, alienage, ethnicity, race, religion, and sex lead to differential treatment of individuals the world over. Employment discrimination is felt most acutely in those industrialized nations where one's income level is the major determinant of so many other things: where one lives, what one wears, how one's children are educated. Concern over the social and economic consequences of employment discrimination has led to the development of new legal techniques on both sides of the Atlantic. The recent enactment in Britain of the Sex Discrimination Act, 1975, and the Race Relations Act, 1976, invites a comparison of those statutes and related …

Fact And Fiction Concerning Multinational Labor Relations, John C. Shearer

Vanderbilt Journal of Transnational Law

This article briefly reviews the magnitude, nature, and growth of the foreign investments of American-based MNCs, especially those in the nine member countries of the European Community (EC), and summarizes the major union fears and aspirations that arise from the rapid growth in scope and power of MNCs. The article focuses on the realities and fantasies surrounding the prospects for multinational collective bargaining with MNCs, which is widely viewed as the most feasible means by which unions can protect their vital interests threatened by MNCs. Unfortunately, in discussions of this matter considerable fiction is often mixed with fact. Some observers …

Recent Cases, Laurence M. Hamric, William G. Scott, Mitchell M. Purvis, George M. Kryder, Iii, Richard M. Pitt

Vanderbilt Law Review

Laurence M. Hamric

The instant decision demonstrates the inability of the Court, on its own or with the meager guidance provided by Congress, to discern a clear standard by which to measure the propriety of union organizational activity in light of current federal labor and antitrust law. Faced with a fact pattern that did not embody an apparent anticompetitive intent, a classic conspiracy between labor and non-labor entities, or activity clearly unrelated to the legitimate union interest in achieving better wages and working conditions, the Court was forced to abandon the "clear showing" test of Pennington," the"intimately related" test of …

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 …