Digital Commons Network^™

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Civil Rights Act of 1871--"Under Color of Law" Defined

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Conflict of Laws--Characterization--Amount of Damages in Wrongful Death Action Held to be Procedural and thus Controlled by Law of the Forum

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Criminal Law-Insanity--Third Circuit Adopts A New Test for Criminal Responsibility

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Criminal Law--Smith Act--Membership Clause Requiring Active Membership in Communist Party and Specific Intent To Use Violence Held Not To Violate the First or Fifth Amendments

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Criminal Procedure--Evidence-States May Not Constitutionally Use Evidence Obtained by Illegal Search and Seizure in Criminal Cases

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Evidence--Hearsay--Old Newspaper Article Admitted as Evidence of Facts Contained on Grounds of Necessity …

The Practitioner And The Bankruptcy Process, John M. Bates

Vanderbilt Law Review

While procedure in bankruptcy matters is not difficult it requires meticulous attention to detail. After observing many cases, it is my opinion that the average practitioner who carefully observes the rules of procedure and is painstaking and conscientious in drafting the schedules and other required pleadings can find bankruptcy an interesting and rewarding practice.

The Equitable Subordination Of Claims In Bankruptcy, Asa S. Herzog, Joel B. Zweibel

Vanderbilt Law Review

The authors of this article address themselves to the problems raised by the use by bankruptcy courts of their equity powers to subordinate claims. They discuss the distinctions between subordination and disallowance, the interplay between state and federal law, res adjudicata, and the classes of cases in which equitable subordination occurs. They conclude that, while much confusion exists in this area, the equitable principles involved are generally sound and that applying them is often in the best interest of debtor, creditor, and public.

Book Reviews, Donald P. Kommers, I. C. Rand

Vanderbilt Law Review

Law and Social Process in United States History:

The excellence of Law and Social Process in United States History in every respect matches the high honor accorded Professor Hurst when invited to deliver the ninth series of the Thomas M. Cooley Lectures under the sponsorship of the University of Michigan Law School. This volume, following upon the heels of his Growth of American Law and Law and the Conditions of Freedom, the latter having won the James Barr Ames prize granted quadrennially by the Harvard Law School, merely affirms his stature as an eminent legal historian. Like the earlier volumes, …

Summary Proceedings In Direct Contempt Cases, Thomas R. Allen

Vanderbilt Law Review

That the "power and majesty" of the law, personified by the court and its decrees, could not be lightly brushed aside even by a prince was a settled fact by the time of Shakespeare; it remains so today. But the proceedings by which such an offense may be punished is another matter. At the present time a large number of contempts are disposed of by summary proceedings. It was not always so, and recently a number of highly respected judges and writers have begun to argue that the practice should be discontinued. This revival of interest is the raison d'etre …

Determination Of The Effect Of A Discharge In Bankruptcy, T. A. Smedley

Vanderbilt Law Review

This article examines the operation of the system under which the granting of the discharge is the function of the bankruptcy court but the construction of the effect of the discharge falls within the power of any court in which a creditor happens to bring suit to enforce an obligation of the bankrupt. The customary practice of leaving to the lower state courts the task of determining the dischargeability of specific debts is evaluated, and the bases for having this determination made in the bankruptcy court instead are explored.

Preferences Under The Bankruptcy Act, Charles Seligson

Vanderbilt Law Review

The Bankruptcy Act allows the trustee in bankruptcy to avoid the effect of certain transactions entered into by the debtor on the ground that these transactions give some creditors a preference. In this article, Mr. Seligson examines section 60 of the Bankruptcy Act to determine when this can be done. He discusses the elements of preferential transfers, the problems of proof, the relationship between state and federal law, and the manner in which the statutory provisions have been applied by the courts.

Federal Tax Liens In Bankruptcy, Pierre R. Loiseaux

Vanderbilt Law Review

In this article, the author considers the peculiarly preferred position of the tax lien under section 67 of the Bankruptcy Act. From his consideration of the position of the trustee and the claim of the government he concludes that the law as presently applied is inequitable. He advocates that the government's secret lien be held invalid against the trustee, that the inchoate lien doctrine should not be applied in bankruptcy, and that the doctrine of Moore v. Bay be modified.

Arrangements And Wage Earner Plans: Proceedings Under Chapters Xi And Xiii, Sydney Krause

Vanderbilt Law Review

In this article, Mr. Krause considers the practical problems confronting the attorney who conducts proceedings under chapters 11 and 13 of the Bankruptcy Act. The article is a revision of remarks made by Mr. Krause at the Institute on Debtor-Creditor Relations held at the Vanderbilt University School of Law on November 11, 1961. While a number of changes have been made in the remarks, the author has retained, insofar as possible, the original flavor of the address.

The Wage Earner's Plan In Practice, Reginald W. Mcduffee

Vanderbilt Law Review

In this article Judge McDuffee discusses the present use of the Wage Earner's Plan, the need for its extension, and the potential which this provision possesses for benefiting both debtor and creditor. He documents his commentary both with statistical data and with statements made by referees throughout the nation.

Public Utility Debt Ratios And The Public Interest--Reasonable Fixed Charges And Just And Reasonable Rates, Melvin G. Dakin

Vanderbilt Law Review

Mr, Dakin explores the complex and difficult field of the financing of public utilities corporations. He describes and evaluates the approaches of four commissions: the Securities and Exchange Commission which must approve the reorganization of public utilities corporations which have gone into bankruptcy, the Federal Communications Commission, the Federal Power Commission, and the Michigan Public Service Commission. He concludes by suggesting that in some instances these agencies are placing too great emphasis on their conception of sound financing at the expense of the customers served by these utilities.

Selected Materials On The Literature Of Bankruptcy, Roy Mersky

Vanderbilt Law Review

Charles Warren, in his book Bankruptcy in United States History, opens the first chapter with a statement that would discourage most lawyers interested in developing a practice in bankruptcy: "The subject of bankruptcy is gloomy and depressing in that the law of bankruptcy is dry and discouraging." However, a federal bankruptcy law has been on the statute books continuously since 1898, and it is safe to assume that barring a nuclear war, legal problems dealing with bankruptcy will continue for along time in the future.

The Wage Earners' Plan: Its Purpose, Walter Chandler

Vanderbilt Law Review

Chapter XIII is the forerunner of the general revision of the National Bankruptcy Act in 1938. Introduced as a bill for the relief of harassed wage earners who desire to pay their debts if given sufficient opportunity, the bill attracted the attention of the Honorable Hatton W. Sumners, Chairman of the Committee on the Judiciary of the House of Representatives. In view of the cumulative need for a definitive study of the law of bankruptcy with the end view of enacting a complete revision of the Act of 1898, a special subcommittee on bankruptcy was created; this subcommittee, with the …

The Dischargeability Of Debts In Bankruptcy, Paul J. Hartman

Vanderbilt Law Review

From the viewpoint of the bankrupt debtor, a discharge from his obligations is, no doubt, the most important facet of bankruptcy proceedings. The bankruptcy discharge is designed to relieve the honest debtor from his financial entanglements, and to give him an opportunity to reinstate himself in the business world. A debtor is now entitled to a discharge as a matter of right, unless he has been guilty of certain specified offenses against the Bankruptcy Act. For many generations the idea of a discharge from one's debts has been the relieving feature of bankruptcy. However, it has not always been so. …

Insurance -- 1961 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

The developments in the Tennessee law of insurance during the past year were important without being surprising. The various courts delivered opinions dealing with a number of the central issues in insurance law, especially in the field of risk control, and by and large followed the line of thinking established by past years. Many of the decisions are of less significance than one might suppose, because of their extreme involvement in particular fact situations.

Business Associations -- 1961 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

I. CASES

A. Disregard of Corporate Entity

B. Action in Corporate Name After Revocation of Charter

C. Effect of Merger

1. Privilege Tax

2. Statute of Limitations

D. Judicial Intervention in Internal Corporate Affairs

E. Disregard of Fictitious Corporate Records

F. Criminal Liability of Corporation for Acts of Agents

G. Corporate Venue Under Federal Anti-Trust Laws

II. STATUTES

A. Unincorporated Associations Treated as Corporations

B. Amendments to Securities Law

C. Massachusetts Trust Act

D. Industrial Development Corporation "Projects"

E. Amendments Relating to General Welfare Corporations

F. Miscellany

A Decade Of The Celler-Kefauver Anti-Merger Act, Charles J. Steele

Vanderbilt Law Review

Corporations intent upon expanding via the acquisition route have had three statutory hurdles placed in their way by the Congress of the United States. As hurdles, the first two, the Sherman Act of 1890 and the Clayton Act of 1914, were failures. A judiciary which refused to give effect either to the language or intent of the acts nullified completely their usefulness as anti-merger weapons.

The third hurdle, the Celler-Kefauver Amendment to the Clayton Act, was enacted in 1950. Relatively few judicial opinions have interpreted this act, "new section 7," as it is called. It is clear, however, that it …

Federal And State Condemnation Proceedings--Procedure And Statutory Background, William E. Miller

Vanderbilt Law Review

The development of our modern and complex society has necessitated a widespread appropriation of private property for public use. The vital importance of present-day eminent domain is emphasized by the staggering proportions of recent and proposed takings in terms of the amount of land appropriated, its monetary value, and the number of individual citizens whose property is affected. In the Middle District of Tennessee alone--of course a small part of the national total-in excess of 700 tracts or parcels of land have been condemned during the past seven and one-half years for various projects, including the Old Hickory Dam and …

Agency -- 1961 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

The topic "agency" includes the areas of "master and servant" as well as those of "principal and agent." There were few cases in these areas decided by the Tennessee courts during the period under survey. Generally, basic principles were applied to routine cases.In certain instances the reliance upon a prior fact determination avoided the necessity of an elaborate treatment of the facts. In one or two cases the court reached a result that may not be deemed desirable though supported by much authority. Significant points received less attention than they deserved in certain cases. In one case the basic question …

Constitutional Law -- 1961 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

Although a relatively small number of cases turned upon constitutional questions during the survey period, some important decisions were handed down in this area. In five separate decisions legislation was declared unconstitutional. The impact of the constitutional decisions varies from the right to millions of dollars in school funds in Shelby County and the salary of the clerk of General Sessions Court of Clay County to approval of permanent tenure for all franchised automobile dealers in the state. The scope of governmental power over the administration of estates, condemnation of private property and the pursuit of private businesses brought forth …

Contracts -- 1961 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

I. Offer and Acceptance--Notification of Acceptance Before Notification of Revocation--Duration of Offer with Fixed Expiration Date

II. Implied and Quasi Contract--Claim for Services Where Family Relationship Involved

III. Parol Evidence Rule--Application of Rule to Third Party Not a Party to the Written Instrument--Pre-existing Duty as Consideration

IV. Exculpatory Contracts--Contracting Against Liability for Consequences of Own Negligent Conduct

V. Agreement in Restraint of Trade-Agreement of Seller of Business Not to Compete--Enforcement of Restraint in Area Greater than Required to Protect Purchaser

Creditors' Rights And Security Transactions -- 1961 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Two cases involving a claim of usury were decided during the period of this survey. However, in one, Post Sign Co. v. Jemc's, Inc.,'the court did not reach the issue of usury, but instead held that this issue could not be raised by the parties involved. The facts were somewhat complicated.

Personal Property And Sales -- 1961 Tennessee Survey, James O. Bass, Jr.

Vanderbilt Law Review

The Tennessee courts have heretofore denied recovery in actions for breach of warranty in the absence of privity of contract between the plaintiff and the defendant.' The required privity had not previously been found when a manufacturer was sued by a consumer who purchased from an intermediate dealer. . . .

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Contractual Disclaimer.-In the Dodson case, there was an alter-native holding that the consumer could recover on the theory of an implied warranty of quality or fitness. The significance of such a holding lies in the fact that the express warranty which the court found running from General Motors …

Procedure And Evidence -- 1961 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

In this article no mention is made of the numerous reiterations of the rule that in considering a motion for a directed verdict, the trial court must deny the motion where there is any material evidence that would warrant a jury in finding against the moving party. Nor is there noted the many, many applications of the courts' settled practice to deny a petition to rehear which merely reargues matters which counsel insist were improperly decided after argument and full consideration. Again, it must be said that this survey is in most respects a mere "horizontal digest." Thus far the …

Real Property -- 1961 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

Probably no area of the law is fraught with more confusion than that involving construction of clauses in deeds and wills which impose some restraint on the conduct of grantees or devisees- seemingly not in the best interest of society. Clauses which tend to deter grantees or devisees from marriage or remarriage have constituted a fertile source of litigation for centuries. And though the stated rules of law prohibit and restrict the use of marriage or remarriage as a condition to vest or divest interests in real property, there are very few cases in which the courts in this country …

Restitution -- 1961 Tennessee Survey, John W. Wade

Vanderbilt Law Review

"A person who has been unjustly enriched at the expense of an-other is required to make restitution to the other." This is the first section of the Restatement of Restitution.' It indicates the principle underlying a field of the law coordinate with tort and contract.About a dozen cases during the survey period may be classified as raising a problem within this general subject. They do not cover the whole range of the field and have here been classified on a pragmatic rather than an analytical basis.

Services are normally rendered under a contract which governs the nature of the services …

State And Local Taxation -- 1961 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Not many cases involving state taxes have been decided by the Tennessee courts during the period covered by this survey. Action taken in the halls of Congress, however, has the potential of a major revamping of the taxing power of all state and local governments.

Workmen's Compensation -- 1961 Tennessee Survey, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

Two bills amending the Workmen's Compensation Law' were enacted during the survey year. The first placed a limit of $12,500 on compensation payable for any permanent partial injury, not limited to those set forth in the schedule. It also added the following self-explanatory sentence to the first paragraph of section 50-1027, Tennessee Code Annotated: To receive benefits from the Second Injury Fund, the injured employee must be the employee of an employer who has properly insured his workmen's compensation liability or has qualified to operate under the Tennessee Workmen's Compensation Law as a self-insurer. The second amendment changed the definition …

Characterization Of An Income Tax For The Purpose Of The Foreign Tax Credit, Stanley L. Ruby

Vanderbilt Law Review

Perhaps the best reconciliation of the many conflicting policies underlying the foreign tax credit would be to give preferential treatment by tax treaties to investment income from those areas where our foreign policy dictates that investment should be encouraged, whereas taxes imposed on income from other areas should be handled by the deduction approach. Thus the loss of revenue through investment in heavily industrialized areas (with stable governments and relatively little risk-taking) with high tax rates would end, but there would exist the flexibility, through treaties, to encourage investment in underdeveloped areas.

Book Reviews, Winthrop R. Munyan, John W. Fager, Walter P. Armstrong Jr., Jerry L. Moore

Vanderbilt Law Review

Taxation of Foreign Income By Boris I. Bittker and Lawrence F. Ebb. Stanford: Stanford University, 1960. Pp. xii, 580.

reviewer: Winthrop R. Munyan

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The Planning and Administration of Estates Edited by Rene A. Wormser. New York: Practising Law Institute, 1961. Pp. 324.

reviewer: John W. Fager

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How to Evaluate and Settle Personal Injury Cases By Allen Bush Indianapolis: The Bobbs-Merrill Company, Inc., 1959. Pp. x,148.

reviewer: Walter P. Armstrong, Jr.

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The Tax Practice Deskbook By Harrop A. Freeman and Norman D. Freeman Boston and Toronto: Little, Brown and Co., 1960. Pp. vii, 581. $17.50.

reviewer: Jerry L. …