Law Commons^™

Antitrust Laws And The Territorial Principle, G. H. Haight

Vanderbilt Law Review

During the past few years there has been extensive discussion regarding the extraterritorial application of antitrust laws and some attempts have been made to consider the matter in the context of public international law principles.' Notwithstanding objections raised by foreign governments to court orders and subpoenas directed to foreign corporations in relation to their activities abroad, some commentators still appear to consider that there are few, if any, limitations imposed by law upon such assertions of penal power. This position requires reexamination, and in undertaking a review it will be relevant to consider the nature and effect of new antitrust …

Book Reviews, Paul Carrington, J. Allen Smith, Stanley D. Rose

Vanderbilt Law Review

Book Reviews --

The John Randolph Tucker Lectures--1953-1956 Lexington, Virginia School of Law, Washington and Lee University, 1957. Pp. 208.

reviewer: Paul Carrington

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Desegregation and the Law By Albert P. Blaustein and Clarence Clyde Ferguson, Jr. New Brunswick: Rutgers University Press,1957. Pp. xiv, 332.

reviewer: J. Allen Smith

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The Federal Tort Claims Act By William B. Wright Forward by Emile Z. Berman New York: Central Book Co., 1957. Pp. 248.

reviewer: Stanley D. Rose

Legal, Economic And Political Considerations Involved In Mergers, Joseph W. Burns

Vanderbilt Law Review

Although the merger statute--section 7 of 'the Clayton Act'--was enacted in 1914, it was forty years before it assumed any importance in the antitrust field. The original statute, applicable to acquisitions of stock but not to acquisitions of assets, was wholly ineffective to prevent mergers. Enforcement efforts were insignificant...

If Congress expected the 1950 amendment to solve all the merger problems which were discussed prior to its enactment, this expectation has not been realized. Congressional committees in both the House and Senate have instituted investigations and held public hearings which have indicated considerable dissatisfaction with the effectiveness of section 7 …

Exclusive Arrangements And Refusal To Deal Problems, Reynolds C. Seitz

Vanderbilt Law Review

Justification for including a discussion on exclusive dealing arrangements and on refusal to deal decisions in a symposium devoted to trade practices rests upon the practical consideration that there exists on the part of business management a considerable interest in the two commercial tools.

Business executives find appeal in the prospect of using a contract calling for exclusive dealing.' Those engaged in commerce have for a variety of purposes frequently employed as a lever the refusal to deal.

Possible antitrust implications in the use of the two devices has not always been understood by business. In recent years, however, the …

The Lawyer's Role Before Litigation, Lee Loevinger

Vanderbilt Law Review

A lawyer is consulted regarding antitrust aspects of proposed business activities; or regarding the possibility that his client may have a cause of action under some antitrust law. What is his role at this stage? What are his responsibilities? Would these be substantially different if the client's problems had no antitrust element?

The system of formulating legal principles and studying and teaching law on the basis of the decisions of litigated cases has one serious shortcoming, at least, in its tendency to obscure the dual role of the lawyer: first as counsel, and second as advocate. Both lawyers and laymen …

Federal Control In The Food And Drug Industries, Thomas W. Christopher

Vanderbilt Law Review

If the attention or lack of attention law reviews give to a subject is indicative of the amount of governmental control therein, then one would conclude that there is little federal regulation in the food and drug fields. The fact is, however, that there are more than 1,200 pages of federal statutes and administrative regulations affecting the food and drug industries, and no industry is more tightly controlled. The antitrust, securities, and labor statutes, for example, are, if anything, less stringent.

In the main, the approach of food and drug regulation is from a different point of view than that …

State Power Over The Federal Contractor: A Problem In Federalism, Arthur S. Miller

Vanderbilt Law Review

In large measure both the federal officials, whose job it is to enter the commercial market to fulfill the government's material needs, and the federal contractor, wherever he may be and of whatever size he may be, tend to look upon attempts by states to tax or regulate with a skeptical eye. The state appears as some alien interloper whose activities result only in hardship and delay to the contractor and consequent annoyance and financial cost to the federal government. By and large, accordingly, a prevailing idea in the federal procurement circles seems to be that of avoiding, whenever possible, …

Commercial Restrictions In English Law, Edward A. Morrison

Vanderbilt Law Review

With the passing of the Restrictive Trade Practices Act, 1956, the English statute book is now furnished with a set of enactments, comprising this Act and the Monopolies Acts 1948 and 1953, which are comparable to the anti-trust legislation of the United States. The English statutes present marked dissimilarities to their American counterparts both in aim and method. In order to understand them it is necessary to consider certain divergences of emphasis on the part of English and American judges on the common law rules in which the legislation of the two countries alike is embedded, and certain aspects of …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Agency--Representations--Liability of Principal for Agent's Assault Where Consent Obtained by Fraud

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Constitutional Law--Due Process--Admissibility in State Criminal Prosecution of Results of Blood Test taken while Accused was Unconscious

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Constitutional Law--Privilege Against Self-Incrimination--Effect of Possible Federal Prosecution on Application of State Immunity Statute in State Criminal Proceedings

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Constitutional Law--Military Jurisdiction--Capital Offenses Committed by Civilian Dependents Accompanying Armed Forces Abroad in Peacetime

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Corporations--Election of Directors--Conflict Between Constitutional Right of Cumulative Voting and Statute Authorizing Classification of Directors

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Corporations--Officers--Secretary--Treasurer's Authority to Institute Litigation

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Corporations--Shareholder Voting Agreements--Applicability of Voting Trust Statute to Pooling Agreement Giving Irrevocable Proxies to …

A New Approach To Resale Price Maintenance, James A. Maclachlan

Vanderbilt Law Review

Resale price maintenance has had a lively legal history. After court decisions under the Sherman Act and the Federal Trade Commission Act had discouraged it in the first third of the current century,' it was encouraged by Fair Trade Acts in so many states as to develop an impractical cleavage between state and federal law. Congress responded by passing the Miller-Tidings Act in 1937. This made the relevant antitrust laws inapplicable to resale price maintenance contracts valid by the law of the state where resale is to be made. The amendment conformed in essential respects to the structure of the …

Statutory Restrictions On Selling Below Cost, Homer Clark

Vanderbilt Law Review

The rules of the American game of competition are numerous, diverse and often inexplicable, but none of them is as dubious in purpose or as devious in operation as those found in the statutes prohibiting sales below cost. Such statutes have been enacted in the overwhelming majority of states,' the earliest ones dating back to the Great Depression. Indeed their philosophy has infected the federal antitrust laws. That the impetus back of these statutes was not just a product of depression fears and frustrations is shown by their passage after the depression was over in some states, and during the …

Senate Bill No. Ii And Antitrust Policy, Kenneth S. Carlston

Vanderbilt Law Review

The history of the judicial interpretation of the Sherman Act' is a history of the legislative process working through the mechanisms of the judicial process. Starting with an act phrased in the most general of terms, nearly seventy years of judicial administration have developed a system of interdependent postulates analogous to legislative norms. None of these postulates can be considered as prevailing over all others. But the binding thread of the Sherman Act is the proposition that the market shall be dynamic, manifesting sufficient energy through price competition by the organizations participating in the market to ensure that the advances …

Conflict Of Laws -- 1957 Tennessee Survey, John W. Wade

Vanderbilt Law Review

Martin v. Martin' involved a bill in equity by a wife to set aside a divorce decree as fraudulently obtained by the husband. The parties had been domiciled in Pennsylvania. While in Tennessee as a member of the armed forces the husband obtained the divorce in the state. He was subsequently transferred outside the United States. Complainant's bill to set the decree aside for fraud was sustained by the chancellor, defendant being served by publication. Defendant then made a special appearance to contest the jurisdiction of the court and appealed from an adverse ruling.

The Supreme Court held that there …

The Christian Lawyer As A Public Servant, William S. Ellis

Vanderbilt Law Review

This paper is concerned with the general topic of the Christian lawyer as a public servant. The paper attempts to describe very briefly the lawyer in his practice of law and in his relation to the legal and political systems, and the relevance of the Church to the law in each of these areas. The topic is a difficult one, for the writer would suggest that the lawyer by his very trade is "a Pharisee" and rarely a Christian.

Yet the lawyer is one of the most important and influential groups in this country. From the days of the pioneer …

Insurance -- 1957 Tennessee Survey, Robert W. Sturdivant

Vanderbilt Law Review

The case of Lee v. Occidental Life Ins. Co.' is one of first impression in this state, and considers the effect of a change in the by-laws and constitution of a labor union--with a corresponding change in coverage under a group insurance policy issued to the union--on the rights of an insured member of the union.

Life, Health and Accident Insurance In Alvis v. Mutual Benefit Health and Acc. Ass'n, the Supreme Court construed certain provisions of a ten-year annual increasing policy issued to the plaintiff's intestate by defendant insuror.

Contracts -- 1957 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Breach of contract to publish advertisement--certainty of lost anticipated profits--nominal damages: The rule of "certainty" with respect to awarding damages for a breach of contract is simply a standard requiring a reasonable degree of persuasiveness in the proof of the fact of damage and of the amount of damage.' Through the use of the standard of certainty, the court is enabled to insist that the jury must have factual data--something more than guesswork--to guide themin fixing the award. Loss of commercial profits, claimed as damages for breach of contract, has become the principal field for the application of the standard …

The Christian Lawyer As A Churchman, William Stringfellow

Vanderbilt Law Review

Comparative studies of moral theology and legal philosophy are irrelevant if they are isolated from the concrete life of worship. Similarly, the question of the Christian vocation of the practicing lawyer must not be solely an attempt to articulate some ethics to guide a lawyer in his decisions in work. The Christian life is not so much about deciding and doing as it is about being that which Christians are called to be. Precisely, Christians are what they are called to be in worship. Worship is not an ancillary folk activity to which Christians resort out of sentiment or superstition, …

A Bibliography On Christian Faith And The Law, Law Review Staff

Vanderbilt Law Review

Church and State SCM Press, London, 1939

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Christian Ethics and Social Policy Charles Scribner's Sons, New York, N.Y., 1946

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The Destiny of Man Charles Scribner's Sons, New York, N.Y., 1937

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The Divine Imperative Lutterworth Press, London, 1937

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The Theology of Religious Vocation Herder, St. Louis, Mo., 1951.

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Moberly, Responsibility (Riddle Memorial Lectures at the University of Durham, 1951). Oxford University Press, New York, N.Y., 1951

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The Nature and Destiny of Man Charles Scribner's Sons, New York,N.Y., 1943

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Christian Philosophy in the Common Law Blackfriars, Oxford,1947.

Bills And Notes -- 1957 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Since usury constitutes a defect in title under section 59 of the Negotiable Instruments Law, which defect apparently will be purged under the Tennessee law if the note gets into the hands of a holder in due course, there arises some questions as to the burden of proof in connection with establishing whether the holder is a holder in due course--Braswell v. Tindall is somewhat unusual in that the maker of the note is seeking by his affirmative action, as plaintiff, to dislodge the defendant-holder from his position as a holder in due course so that the defect in title …

Business Associations -- 1957 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

Very little happened in the field of Business Associations during the survey period. The General Assembly enacted one fairly important set of amendments to the Securities Law, and the Tennessee appellate courts handed down two or three decisions which in a large part merely reiterated principles of corporation law already well-established in this state.

Amendments to the Securities Law Broadening Grounds for Refusing or Revoking Registration of Securities: The Securities Law of 1955 among other things set up a procedure for the registration of securities intended for sale and gave the Commissioner of Insurance and Banking authority to investigate the …

Agency -- 1957 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

Several interesting and significant decisions in the fields of agency and master and servant were handed down during the survey period. This article discusses the decisions in groups, each group being placed under a topic heading which is designed to give the reader an idea of the particular phase of agency law involved in that group of cases.

Establishing that Tort feasor is a Servant of Defendant: It is elementary law of course that a master is liable for the torts of his servant acting within the scope of his employment. A question often arises, however, as to whether a …

Creditors' Rights And Security Transactions -- 1957 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Fraudulent Conveyances--Effect of Recordation of Fraudulent Conveyance on Subsequent Creditors: In Butler v. Holland, the Tennessee Supreme Court was faced with the question of whether the constructive notice of a recorded deed which is a fraudulent conveyance prevents a creditor, who became such after the recordation, from setting the conveyance aside. The plaintiff-creditor (Butler), in an effort to collect a debt due him from the estate of one Jesse Nolen, deceased, brought a suit in equity to have set aside, as a fraud against plaintiff, a conveyance of real estate by one Nolen to the defendant (Holland). The conveyance admittedly …

Personal Property And Sales, F. Hodge O'Neal, Thomas G. Roady Jr.

Vanderbilt Law Review

Sales

Two sales cases were decided during the survey period. One of the cases, Henson v. Wright,' was an action by the buyer of a tractor to rescind the purchase for breach of warranty.

Judd v. Fruehauf Trailer Co. is a questionable decision which perhaps opens a way for a seller in a conditional sale contract to circumvent provisions of the conditional sales act designed to protect the conditional buyer.

Liability of Common Carrier: Is a carrier liable to a shipper for breach of contract for failure to deliver an animal lost en route from point of shipment to point …

Constitutional Law -- 1957 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

During the survey period the Tennessee Supreme Court had occasion to deal with a major, though unsuccessful, attack upon the constitutionality of the state legislation providing for the apportionment of Senators and Representatives in the General Assembly. There were also important questions relating to constitutional limitations on the police power in the regulation of insurance and of the number and capacity of gasoline storage tanks by a municipality.

The separation between legislative, executive and judicial powers is made express in the Tennessee Constitution.' In addition, each of these coordinate branches of government is expressly enjoined from performing the functions of …

State And Local Taxation -- 1957 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Governmental Immunity--Application to Taxpayer Who is Performing a Governmental Function. Another chapter was written in the Tennessee saga of governmental immunity and local taxation by the Tennessee Supreme Court in Roane-Anderson Co. v. Evans. That case involved Tennessee taxes levied on the exercise by a taxpayer of certain privileges. These privilege taxes were measured by the gross income which the taxpayer received as a result of its activities pursuant to a contract it had with the federal government in connection with atomic bomb production at Oak Ridge, Tennessee.

Criminal Law And Procedure -- 1957 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Homicide: The statutory requirement that a killing be "willful; deliberate, malicious, and premeditated" for a finding of murder in the first degree is not applicable to a killing committed while in the perpetration of one of the felonies listed in the statute. This question arose in Farmer v. State, in which it appeared that the killing resulted from the setting on fire of a dwelling, i.e. arson, by the defendant. It was urged on appeal to the Tennessee Supreme Court that there was no proof of felonious homicide because there was no showing of an intent to kill nor even …

Real Property -- 1957 Tennessee Survey, Thomas G. Roady Jr.

Vanderbilt Law Review

The Rule in Shelley's Case Revisited: During the period covered by this survey the Supreme Court of Tennessee handed down an opinion involving one of those problems periodically recurring in the real property field. In this decision the court revisited the Rule in Shelley's Case, pointing out the classic situation to which it applies and calling attention to the statute in Tennessee which abolished the Rule.

The question before the court was in terms of what estate the grantee, Ralph Parker, acquired where the conveyance was to "Ralph Parker and at his death to his bodily heirs." The court concluded …

Wills, Trusts And Estates -- 1957 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

The subject matter of this article will be presented in four parts entitled Wills, Trusts, Future Interests and Fiduciary Administration. The latter will include the developments of the year concerning both the administration of decedents' estates and the administration of trust estates because to an increasing extent the statutes and decisions are relevant to both kinds of fiduciary administration. Legislative developments concerning probate law are also included under each heading as well as the court decisional developments.

Administrative Law -- 1957 Tennessee Survey, James B. Earle

Vanderbilt Law Review

Only a few cases by the Tennessee Supreme Court decided during the survey year considered questions of general administrative law. These concerned the timing and extent of judicial review of administrative action and the conduct of hearings by agencies.

Prerequisites to Judicial Review: Whether available administrative remedies must be exhausted by a litigant before seeking a review or other relief by court action is a question not always capable of exact prediction.' The "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been …

Local Government Law -- 1957 Tennessee Survey, Thomas G. Roady Jr., Robert L. White

Vanderbilt Law Review

The substantial amount of litigation involving local governmental units, their officers and agents, continued during the period covered by this survey and if volume alone were any indication of significant growth and development in a given area of law this survey article would be of considerable importance. But, in general, the cases decided in this period draw on fairly well established legal rules and principles or upon legislation which has been designed to clarify existing problems. In view of this fact it does not appear justifiable to do much more than to present a summary of these decisions with brief …