Georgetown Law Journal

THE GEORGETOWN LAW JOURNAL PUBLIC LAW 85-804 AND EXTRAORDINARY CONTRACTUAL RELIEF__________________________________________Donald O. Jansen CIVIL COURT CONGESTION IN THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES____Lloyd S. Nix THE PROFESSIONAL RESPONSIBILITY OF THE PROSECUTING ATTORNEY___________________ Monroe H. Freedman ETHICS IN CRIMINAL CASES: A RESPONSE_______ Richard L. Braun ANTITRUST VENUE: TRANSACTING BUSINESS UNDER THE CLAYTON ACT EFFECTIVE USE OF GOVERNMENT-OWNED RIGHTS TO INVENTIONS: PUBLICATION VERSUS PATENTING FACTORIAL AND PSYCHOLOGICAL ANALYSIS OF SCOPE AND METHOD OF SEARCH THE SIERRA CLUB, POLITICAL ACTIVITY, AND TAX EXEMPT CHARITABLE STATUS VOLUME 55 NUMBER 6 MAY 1967 THE BUREAU of NATIONAL AFFAIRS, inc. (BNA) cordially invites you to try the united states LAW WEEK for three months at half the regular rate! As an attorney, you know the in a special Summary and Analysis, a value of facts. 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C. 20037 The Latest In Citation Service Shepard’s United States ADMINISTRATIVE Citations covering decisions of ATTORNEYS GENERAL COMMUNICATIONS COMMISSIONS CUSTOMS INTERIOR INTERNAL REVENUE INTERSTATE COMMERCE COMMISSION POWER COMMISSION SECURITIES AND EXCHANGE COMMISSION TAX COURT BOARD OF TAX APPEALS TRADE COMMISSION —•— Keyed to Loose-leaf Services —•— for further information please write SHEPARD’S CITATIONS COLORADO SPRINGS COLORADO 80901 ii THE GEORGETOWN LAW JOURNAL VOLUME 55 MAY 1967 NUMBER 6 Member, National Conference of Law Reviews CONTENTS ARTICLES Public Law 85-804 and Extraordinary Contractual Relief ___________________________________________________ 959 By Donald O. Jansen Civil Court Congestion in the Superior Court of California for the County of Los Angeles-------------------- 1018 By Lloyd S. Nix The Professional Responsibility of the Prosecuting Attorney _______________________________________________ 1030 By Monroe H. Freedman Ethics in Criminal Cases: A Response_______________________ 1048 By Richard L. Braun NOTES Antitrust Venue: Transacting Business Under the Clayton Act____________________________________________ 1066 Effective Use of Government-Owned Rights to Inventions: Publication Versus Patenting_________________________ 1083 The Georgetown Law Journal Is PublisheD Monthly, October Through December And March Through May, By The Georgetown Law Journal Association. Printing Office Is 380 E. Lorain, Oberlin, Ohio 44074. Second-Class Postage PaiD At Oberlin, Ohio. Subscriptions Are Given For The Entire Volume Only And Are Payable In Advance. Domestic: $8.50 Per Year; First Issue, $2.50; All Other Current Issues, $2.00; Back Issues, $2.25. Foreign: $9.50 Per Year; Add $0.15 Postage For Each Individual Issue Requested. Mailing Address: The Georgetown Law Journal, 506 E Street, N.W., Washington, D. C. 20001. Subscriptions Are Renewed Automatically Upon Expiration Unless The Subscriber Sends Notice Of Termination Prior to September 1st, the beginning of the Volume Year. © 1967 by The Georgetown Law Journal Association iii The Georgetown Law Journal Factorial and Psychological Analysis of Scope and Method of Search_________________________________ 1098 The Sierra Club, Political Activity, and Tax Exempt Charitable Status_____________________________________ 1128 RECENT DECISIONS Civil Procedure—Federal Courts—Res Judicata—State Judge ment for Property Damage Did Not Bar Plaintiff From Recovery for Personal Injuries in Federal Court Even Though State Law Prohibited Splitting Claim. Weekes v. Atlantic Nat’l Ins. Co., 370 F.2D 264 (9th Cir. 1966) ____________________________ 1144 Constitutional Law—Self-Incrimination—Evidence—Hand writing Exemplar Is Testimonial Evidence To Which Fifth Amendment Privilege Against Self-Incrimination Applies and if Obtained in Absence of Counsel Constitutes Denial of Sixth Amendment Right to Counsel. Fitzsimmons v. United States, ____F.2d_____(10th Cir. 1966) __________________________ 1150 Income Taxation—Family Transactions—Involuntary— Losses Sustained in Intrafamily Involuntary Sales Are Disallowed by Section 267 of the Internal Revenue Code. James H. Merritt, Sr., 47 T.C. No. 51, CCH Tax Ct. Rep. Dec. 28350 (Feb. 24, 1967) _________________________________________________ 1155 Libel And Slander—Government Immunity—Privileged Communications—Defense Contractor Involved In Security Work Is Considered Government Agency Entitled To Absolute Privilege. Becker v. Philco Corp., 372 F.2d 771 (4th Cir. 1967) _________________________________________________ 1162 Statutes—Civil Rights—Due Process—Elements of Action Should Be Proven in Claim for Relief Under 42 U.S.C. § 1983 for Deprivation of Procedural Due Process. Rose Chalet Func tions Corp. v. Evans, 264 F. Supp. 790 (D. Mass. 1967)______ 1168 BOOK REVIEWS Benchmarks—Henry J. Friendly_______________________________ 1174 Reviewed by Max Freedman Truth and Deception: The Polygraph ("Lie Detector”) Technique— John E. ReiD and Fred E. Inbau___________________________ 1176 Reviewed by Raymond W. Russell BOOKS RECEIVED 1180 GENERAL INDEX—Volume 55 I THE GEORGETOWN LAW JOURNAL VOLUME 55 MAY 1967 NUMBER 6 PUBLIC LAW 85-804 AND EXTRAORDINARY CONTRACTUAL RELIEF Donald O. Jansen* Mr. Jansen begins with a discussion of the legislative history of Public Law 85-804 and then proceeds to an exhaustive discussion of the law’s application. The discussion deals with the various types of relief which the statute affords and examines representative cases involving each type of relief. It is by far the most detailed discussion of the case law surrounding Public Law 85-804 yet produced. During 1965, the Department of Defense "gave away” 5,989,000 dollars in the form of extraordinary contractual relief under Public Law 85-804.* 1 This little-known and seldom-used statute permits the Presi dent to authorize any department or agency to enter into contracts or into amendments or modifications of contracts and to make advance payments thereon, without regarD to other provisions of law relating to the making, performance, amendment, or modification of contracts, whenever he deems that such action would facilitate the national defense. The power given to the President by this statute and delegated by him to the various agencies is extremely broad. A contractor can obtain payments or other forms of relief even though such relief is directly prohibited by statute or common law. In this sense, Public Law 85-804 is a "giveaway” since it allows the Government to make contractual payments it is not legally obligated to make. Despite the scope of relief offered to a contractor, Public Law 85-804 is seldom used. During calendar year 1965, the Department of Defense disposed of only 368 applications for relief. This is minuscule when compared to the thousands of defense contracts awarded and the billions of dollars spent each year on military procurement. The main reasons for this are that the law has received little publicity and the decisions of the various agencies granting or denying relief are not published. Even * Member of the Texas and Louisiana bars. Presently associateD with Fulbright, Crooker, Freeman, Bates, and Jaworski, Houston, Texas. 1 72 Stat. 972 (1958), 50 U.S.C. §§ 1431-35 (1964). 959 960 The Georgetown Law Journal [Vol. 55: 959 though the government contractor or his attorney is familiar with the general terms of the act and its implementing regulations, he is unable to draw upon precedents to aid in interpreting the act and in preparing his request for relief pursuant thereto. The purpose of this article is to discuss the grounds for extraordinary relief under Public Law 85-804, the organization for administration

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