Litigation Commons^™

The Role Of Federal Safety Regulations In Products Liability Actions, Teresa M. Schwartz

Vanderbilt Law Review

Product safety is the province of both the regulatory and the tort systems. Each system has come under attack in recent years on both the federal and state levels. Through its regulatory policies, appointments, and budget cuts, the Reagan Administration has weakened the federal regulatory system.' At the same time, the Administration has severely criticized the tort system. State legislatures have enacted a myriad of statutes that weaken the tort system by cutting back on the common-law rights of victims, and additional measures are pending in Congress and in state legislatures across the country.'

For the most part, proponents of …

Digging For The Missing Link, John E. Kennedy

Vanderbilt Law Review

Around the year 1200, in the ecclesiastical court, Martin, a rector,sued "the parishioners of Nuthamstead." In 1315, in the exchequer court, two individuals sued "'the rich burgesses'" of Scarborough "'for themselves and the rest of the middling and poor burgesses'" of that town.' Are there any connections between these examples of medieval group litigation and modern American class actions?

In answering "yes" to this question, Stephen Yeazell has given the legal community a book of substantial significance. By exploring English history from the beginning, he has rediscovered missing links in the ancestral chain of litigation prototypes. Yeazell's discovery is impressive, …

Policing The Bases Of Modern Expert Testimony, Ronald L. Carlson

Vanderbilt Law Review

Technical witnesses have revolutionized the American lawsuit. Advertisements in litigation periodicals bear witness to the broad range of courtroom expert testimony available to the trial bar. A specialist in airplane pilot error places an advertisement on the same page with an advertiser who is eminently qualified to provide expert testimony in churning securities litigation."' Also included are obscenity experts for criminal cases as well as a timber products specialist with "global experience in accidents and related cases," who claims, "more than 30 years experience with wood utility poles."' Within the category of timber and woods there are other experts as …

The Development Of Professional Judgment In Law School Litigation Courses: The Concepts Of Trial Theory And Theme, Edward J. Imwinkelried

Vanderbilt Law Review

I was delighted when the Vanderbilt Law Review asked me to submit a short essay on trial advocacy. This Essay allows me to discuss two concepts, the trial theory and theme, that should be highlighted in every law school litigation course. Several years ago I wrote a text on commercial litigation for practitioners. That text proposed definitions for the concepts of "theory" and "theme"and suggested that trial attorneys organize their pretrial preparation and trial presentation in terms of those concepts. Since the publication of the text, I have attempted to refine the concepts and to use the concepts to restructure …

An Analysis Of The Legal, Social, And Political Issues Raised By Asbestos Litigation, John P. Burns, G. Edward Cassady, Iii, Kenneth B. Cole, Jr., Timothy R. Dodson, Philip E. Holladay, Jr., Paul C. Ney, Jr., Drew T. Parobek, Kimberly Payne, D. Blaine Sanders, L. D. Simmons, Ii, Charles D. Maguire, Jr. Special Project Editor, Laurin Blumenthal Associate Special Project Editor

Vanderbilt Law Review

This Special Project examines the most important issues of the asbestos problem and advocates a congressional solution (1) to relieve the courts of the thousands of present and potential asbestos cases, (2) to protect future claimants' rights to adequate compensation, and (3) to provide for equitable participation by all responsible parties, which, in addition to asbestos manufacturers,include the federal government, insurance companies, and the tobacco industry. The first six parts of the Special Project examine the various issues of asbestos litigation: theories of liability in products liability suits against asbestos manufacturers, causation,defenses, statutory limitations on actions, collateral estoppel, and punitive …

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 …

Appealability Of District Court Orders Disapproving Proposed Settlements In Shareholder Derivative Suits, Harold N. Falls, Jr.

Vanderbilt Law Review

This Recent Development will trace briefly the history of the collateral order doctrine, focusing on recent treatment by the Supreme Court. After an examination of the elements of a district court's decision to approve or disapprove a derivative suit settlement, the Recent Development will analyze the conflicting results reached by the United States Court of Appeals for the Second and Ninth Circuits in light of the Supreme Court's apparent retrenchment. Although finding that the Second Circuit's decision to reject appeal ability is most consistent with recent Supreme Court pronouncements, this Recent Development submits that the Supreme Court has adopted an …

Some Comments On The Litigation Explosion, John W. Wade

Vanderbilt Law Review

My comment must start with a strong commendation of Attorney General Bell for recognizing the crisis created by the current "litigation explosion" in our courts and for providing leadership in seeking means for alleviating and perhaps even solving it. I am sure that the Justice Department's new Section on Improvement in the Administration of Justice will prove invaluable, both as an originator and a clearinghouse for compiling and evaluating new ideas and as a means for putting them into effect. Dan Meador makes an ideal selection as assistant attorney general to head it. I also must commend the Justice Department …

Book Reviews, Daniel H. Benson, Maxwell Bloomfield, Donald E. Schwartz

Vanderbilt Law Review

THEY CALL IT JUSTICE: COMMAND INFLUENCE AND THE COURT-MARTIAL SYSTEM. By Luther C. West. New York: The Viking Press, 1977. Pp.xii, 302. $12.95.

Reviewed by Daniel H. Benson

In his book West is dealing with a subject that is difficult to discuss without generating hostility, misunderstanding, and, occasionally, incredulity. He is attacking the classic military understanding of the basic purpose of the court-martial system. He asks the reader to accept his word and assurances concerning the accuracy of the problems he describes, over the assurances of the military justice establishment that all is well. In doing all of this, West …

Judicial Reform At The Lowest Level: A Model Statute For Small Claims Courts, Robert H. Brownlee, Charles L. Lewis, Gregory J. Moonie, William H. Pickering, Paul C. Deemer, Iii Special Projects Editor

Vanderbilt Law Review

The purpose of this Special Project is to analyze the development of procedures for adjudicating small claims, with particular emphasis on the State of Tennessee, and to suggest statutory revisions that may be of value in improving the quality of justice at the lowest level of the judicial system. The Project study commences with an historical survey of the origins of small claims theory and the various court attempts to apply the theory that have been made in the United States during the last half-century. The result of this analysis will be a characterization of a model small claims court.The …

Book Reviews, Garrett Power, Joseph M. Boyd, Jr.

Vanderbilt Law Review

The Environmental Law Reporter in the Classroom

The Environmental Law Reporter' is a cumulative monthly loose-leaf service devoted chiefly to the environmental issues confronting private attorneys, governmental officials, and teachers. During the fall semester of 1971, the Reporter was employed as a text for the University of Maryland's basic course in environmental law. This review will attempt to measure its potential as a teaching tool.

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Guidebook for Litigation

The common law is still the most useful and flexible weapon in the arsenal of those who care enough about the quality of our environment to do something about it. This …

Severance -- A Means Of Minimizing The Role Of Burden And Expense In Determining The Outcome Of Litigation, Warren F. Schwartz

Vanderbilt Law Review

This article is divided into two main parts. First, it is assumed that the controlling question is how severance affects the likely outcome of litigation by altering the normal incidence of expense and burden. Then the article examines the question of whether there are overriding considerations (particularly the need for "tempering" by reference to the entire controversy) which require that severance be withheld even if dictated by considerations of economy.

The Theory Of Criminal Discovery And The Practice Of Criminal Law, David W. Louisell

Vanderbilt Law Review

To crystallize in a few words the motif of a career as varied and comprehensive as that of Eddie Morgan would in any event be difficult, but it is doubly so for a life devoted, as his has been, to stuff as vital and dynamic as procedure and evidence. For me, his work most fundamentally is to be characterized as a quest for greater rationality in the adjudicative process. Whether one thinks of his analysis of the hearsay rule,' or his rationale of the admissions exception to it, or his treatment of the dead man's statute, or his study of …

Modern Techniques In The Preparation And Trial Of A Medical Malpractice Suit, Fitz-Gerald Ames Sr

Vanderbilt Law Review

Though it is true that in malpractice suits more than in any other type of litigation, the plaintiff must have a strong case on the merits, it is equally important and almost a necessity in most malpractice cases that patient's counsel carefully and thoroughly condition the jurors' minds from the very outset to a psychological acceptance of this type of litigation. Far too many veniremen, before they have been selected as trial jurors in a malpractice suit, have the attitude that (1) a "malpractice" suit connotes conduct either criminal, quasi-criminal or unethical on the part of the doctor or hospital; …

Rules Of Evidence -- Substantive Or Procedural?, Edmund M. Morgan

Vanderbilt Law Review

It hardly needs stating that the definition of a legal word or term depends upon the purpose for which it is to be defined. If in framing a generalization designed to state a rule or make a discrimination applicable in a specific topic or field of the law, the courts use specified terms, it by no means follows that they intend those terms to be understood in the same sense in generalizations dealing with problems in another topic or field. The words, substance or substantive and procedure or procedural, have been used most frequently in three separate situations: (1) in …

Book Reviews, Robert N. Cooks, Kenneth B. Hughs (Reviewer), Jess Halstead (Reviewer), Walter P. Armstrong, Jr. (Reviewer), Howard J. Graham (Reviewer)

Vanderbilt Law Review

Current Legal Problems 1956 Edited by G. W. Keeton and G. Schwarzenberger London: Stevens & Sons, 1956. Pp. vii, 275. $5.55

reviewer: David F. Maxwell

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Some Problems of Proof under the Anglo-American System of Litigation By Edmund Morris Morgan. New York: Columbia University Press, 1956. Pp. xii, 195. $3.50

reviewer: Charles T. McCormick

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Effective Drafting of Leases with Check List and Forms By Milton N. Lieberman Newark: Gann Law Books, 1956. Pp. viii, 974

reviewer: Robert N. Cooks

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The Law and One Man Among Many By Arthur E. Sutherland Madison: University of Wisconsin Press, 1956. Pp. ix, …

Insurance -- 1955 Tennessee Survey, Robert W. Sturdivant

Vanderbilt Law Review

If a period of three years be sufficient time to detect any trend in the field of insurance litigation, there is reflected a decrease in the number of cases reaching our appellate courts having to do with automobile liability insurance and an increase in the number of cases having to do with health and accident policies--the latter probably being the result of the extension of group insurance. In the past year there were only two reported decisions in the state courts and one in the federal court sitting in Tennessee involving automobile liability policies. During the present Survey period, there …

Current Trends In The Business Of The Federal District Courts, Will Shafroth

Vanderbilt Law Review

Congestion in the dockets of many United States district courts in metropolitan centers has called attention to the effects on the judicial business of the great economic development of the past few years, a growth which far exceeds in extent that in any period of equal duration in our history. In the short space of thirteen years from 1940 to 1952 the market value of the output of goods and services produced by the nation's economy increased from 101 billions to 346 billions. Part of this phenomenal rise was due to a 90 percent increase in the cost of living, …

Dalehite V. United States: A New Approach To The Federal Tort Claims Act?, Massillon M. Heuser

Vanderbilt Law Review

The decision for the United States in "Dalehite v. United States,"'though by a closely divided Supreme Court, possibly indicates a turning point in litigation involving the construction of the Federal Tort Claims Act. The trend theretofore had been to expand the concept of suability and liability expressed in the Act. In "United States v. Aetna Casualty and Surety Co." the Court had established the right of an insurer-subrogee to sue in its own name on a portion of a claim arising in favor of the insured-subrogor, despite the Anti-Assignment Statute and the obvious procedural and administrative difficulties not dealt with …

Insurance, Robert W. Sturdivant

Vanderbilt Law Review

One of the most significant decisions during the past year in the field of liability insurance was that of the Court of Appeals in the case of Southern Fire & Casualty Co. v. Norris.' The case involved the duty of a liability insurer toward the insured in the settlement of claims. As early as 1928, the Supreme Court of Tennessee held that the insurer has an obligation toward the insured to use good faith in the conduct of litigation and in the settlement of claims when the insurer assumes control of a case under the provisions of its policy.

Legal Problems Raised By Artificial Rainmaking, Gus D. Hatfield Jr.

Vanderbilt Law Review

The first reported decision involving the problem of the liability in law of the modern rainmaker has recently been rendered.' Though other disputes are reported to have arisen, they have not been finally decided in any regularly reported case.

The case was before the Trial Division of the Supreme Court of New York, the dispute having arisen out of experiments artificially to induce rainfall conducted by the City of New York during the recent, much publicized water shortage in that city. Plaintiffs, who were owners of a vacation resort in upper New York State, sought to enjoin these experiments on …

Book Reviews, Stanley D. Rose, Charles C. Trabue, Jr. (Reviewer)

Vanderbilt Law Review

READINGS IN AMERICAN LEGAL HISTORY

Compiled and edited by Mark DeWolfe Howe

Cambridge: Harvard University Press, 1949. Pp. 529.$7.50

reviewer: STANLEY D. ROSE

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THE GROWTH OF AMERICAN LAW: THE LAW MAKERS

By James Willard Hurst

Boston: Little, Brown and Co., 1950. Pp. xiii, 502. $5.50

reviewer: STANLEY D. ROSE

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REASON AND LAW

By Morris R. Cohen

Illinois: The Free Press, 1950. Pp.211. $3.50

reviewer: STANLEY D. ROSE

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AN INTRODUCTION TO LEGAL REASONING

By Edward H. Levi

Chicago: The University of Chicago Press, 1949. Pp. 74. $2.00

reviewer: STANLEY D. ROSE

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LIVING LAW OF DEMOCRATIC SOCIETY

By …