Vanderbilt Law Review

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Recent Cases

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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


Constitutional Law--Due Process--Permitting Nonattorney Judges to Preside Over Criminal Trials in Which the Offense is Punishable by a Jail Sentence Violates Defendants' Fundamental Right to a Fair Trial

Gerard Thomas Nebel

A basic requirement of due process is the right to a fair trial in a fair tribunal, a right that extends to all criminal trials., Whether a particular procedural right is included in the concept of due process depends upon whether the procedure is fundamental to the Anglo-American scheme of ordered liberty. Further, in ascertaining whether a particular procedure conforms with the requirements of due process, the test is not whether the defendant was actually prejudiced during his trial. Rather, the test is whether a reasonable likelihood or probability exists that the procedure will result in prejudice, denying the defendant a fair trial.

due process, right to a fair trial


Constitutional Law--Right to Travel--Phased Development Plan Unconstitutionally Burdens the Right to Travel of Persons Excluded

Craig V. Gabbert, Jr.

In the instant case, the court first considered the basis for the plaintiffs' constitutional challenge to the development plan. Recognizing the right to travel as a fundamental right and citing Maricopa, the court asserted that to establish standing the plaintiff did not need to introduce evidence relating to any individual who actually had been excluded from the city because of the Petaluma Plan. The court found that the plan's expressed purpose and its intended and actual effect were to exclude substantial numbers of people who otherwise would move to the city. Citing Maricopa and Shapiro, the court concluded that since no meaningful distinction between a law penalizing the exercise of a right and one denying it altogether can be made, a compelling governmental interest had to be shown to justify the instant growth plan.

right to travel, instant growth plan


Physicians and Surgeons--Standard of Care--Medical Specialist May Be Found Negligent as a Matter of Law Despite Compliance with the Customary Practice of the Specialty

Mary Elizabeth Mann

Plaintiff, a patient under defendant ophthalmologists care, brought a malpractice suit alleging that severe and permanent damage to her eyes resulted from defendants' negligent diagnosis and treatment in failing to administer a simple pressure test that would have detected the presence of open angle glaucoma. Defendants had fitted plaintiff with contact lenses and subsequently treated her over a five-year period for an eye irritation, which defendants considered to be related solely to complications with her contact lenses. After plaintiff's first complaint of a visual field problem,defendants tested her eye pressure and field of vision, which indicated that plaintiff, who was then thirty-two years of age, had primary open angle glaucoma and had permanently lost most of her vision. Defendants contended that they were insulated from liability by adherring to the customary practice among ophthalmologists, established by undisputed testimony of medical experts, which does not require routine pressure tests for patients under forty years of age, because of the rarity of glaucoma in that age group. Following a defense verdict, the trial court entered judgment for defendants,and the Washington Court of Appeals affirmed.

malpractice, standard of care