Vanderbilt Law Review

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Constitutional Law--Action Under Color of State Law--Legislative Authorization of Private Action Resembling Public Function Constitutes Action Under Color of State Law

The instant case creates a two to two split in the circuits on the question whether the seizure of a tenant's possessions under a land-lord lien statute is action under color of state law. The decisions in Davis and Anastasia provide the potential for abuse that Fuentes was designed to prevent-the indiscriminate entry into the debtor's home and seizure of his belongings without prior notice and hearing.Hall and the instant opinion, however, provide a more equitable result. While the debtor in the repossession cases, such as Adams and McCormick, had notice that repossession of a specific chattel would occur, pursuant to a contract, upon default, it is unlikely that the tenant either knew the consequences of his default or would have consented to them if he had known. Thus the statute makes the landlord judge and jury over the tenant without providing the tenant an opportunity to defend prior to the unannounced entry and seizure as Fuentes seems to dictate. Additionally, the lien gives the landlord power to seize any of the tenant's property regardless of whether it is of value to anyone other than the tenant or whether it is, as in the instant case, of immediate necessity to the tenant. From a policy standpoint, therefore, the landlord lien appears to bean unduly harsh means of securing rent if notice and an opportunity to be heard are not afforded.

Richard T. Hurt


Copyright--Damages-The Owner of the Performance Rights in a Dramatico-Musical Must Receive At Least the Minimum "In Lieu"Damages for Each Song Included in Each Performance of the Entire Work

The instant opinion is the first circuit court decision to consider the amount of "in lieu" damages for multiple unauthorized performances of a dramatico-musical. In attempting to provide plaintiffs with both adequate and nonexcessive compensation, the court adopted the "heterogeneous components" test and found that each performance was a separate infringement. This test is an acceptable derivation of previous authorities, and its implementation did assist the court in equitably resolving the the instant case. Nonetheless, an equally just result would not be obtained in other situations determined through similar analysis. In the court's hypothetical,"for example, where at least part of a theatrical tour consists of an extended engagement at one locale arranged by a single contract, even an application of the heterogeneous components rule would probably result in a finding of only one infringement. In this situation plaintiff would be forced either to abandon his request for "in lieu" damages, or to be content with an award of $5,000 or less. Future courts could avoid this result by interpreting expansively the term "heterogeneous component." A liberal construction of the test would be consistent with the instant court's policy of providing adequate and just compensation."

Jay D. Christiansen


Invasion of Privacy--Constitutional Privilege--The First Amendment Does Not Protect The Publicizing of Unnewsworthy Private Facts

As the first United States Court of Appeals case to confront the first amendment problem in cases of public disclosure of private facts since the Supreme Court highlighted the importance of the issue in Cox," the instant case is highly significant as a precedent for future privacy cases. Because of the fundamental nature of the conflict involved and the frequency with which it arises, it also is likely that the Supreme Court will soon be called upon to resolve the problem. In practical terms, the instant court's resolution is a good one. It seems evident, especially given the nature of the Supreme Court's first amendment interpretation and the stress recently laid on the value of privacy, that the better solution lies in striking a balance between the two conflicting values rather than in sacrificing one completely. The problem, as the instant court recognized, is one of developing a standard that will accommodate both interests with minimum injury to each'.

William J. Rees


Securities--Aiding and Abetting Under Rule 10b-5-A Stock Exchange May Be Liable for Aiding and Abetting a Securities Fraud Solely on the Basis of Its Failure To Act

The instant opinion contains significant implications for the extension of liability for aiding and abetting, but at the same time the inherent limitations of the holding should be recognized. In denying defendant's motion to dismiss and motion for summary judgment, the instant court, for the first time, has extended to stock exchanges the line of cases expressly holding that a cause of action for aiding and abetting may lie for silence or inaction. On the other hand, the court held only that a cause of action may have been alleged, and not that the stock exchange actually is liable. Plaintiffs made allegations in the pleadings sufficient to state a cause of action under the Restatement test, but whether substantial assistance has been rendered is a question of fact to be decided at trial. The court was careful to comment, however, that plaintiffs faced a difficult burden in establishing a duty of disclosure to them on the part of the Exchange." Further, the fact that plaintiffs also alleged aiding and abetting by the affirmative act of entering into and honoring an agreement not to disclose to investors derogatory facts about Exchange members' reputations may provide the court with alter-native grounds for a decision on the merits and make a decision on the passive aiding and abetting question unnecessary. Therefore,both the procedural and factual postures of the case raise substantial doubt that the court will extend aiding and abetting liability when it decides the case on the merits.

William D. Gutermuth