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Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Implied Warranties Governed by Law of the State Most Closely Associated with the Contract

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Constitutional Law--Due Process--Absolute Statutory Prohibition of the Use of Contraceptives Not a Violation of Rights Secured by Fourteenth Amendment

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Constitutional Law--Freedoms of Speech and Press--Ordinance Prohibiting Distribution of Handbills Without Identification of Author Violates Fourteenth Amendment

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Contracts--Termination--Employment for Indefinite Duration not Terminable for Refusal of Employee to Commit Perjury

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Evidence--Federal Courts--Evidence Obtained by State Officers Through Unreasonable Search and Seizure Inadmissible in Federal Courts

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Judgments--Limitation of Overruling Decision to Parties Before the Court and to Causes of …

Plato And The Doctrine Of Natural Law, Hans Kelsen

Vanderbilt Law Review

As a result of the shocks which the existing social orders have experienced through two World Wars and the Russian Revolution, an intellectual movement is becoming increasingly evident in the Western World--one which, in sharp reaction to a scientific-positivistic and relativistic philosophy, aims at a return to metaphysics and theology, and--closely connected with this--to a renewal of the doctrine of natural law. The proponents of this trend believe they find valuable support in the philosophy of Plato, whose authority until recently was virtually uncontested--and in this they are justified. Plato's doctrine of Ideas is the boldest of metaphysical speculations, for …

The Pure Theory Of Law, Reginald Parker

Vanderbilt Law Review

There is hardly a theory of law about which there exists so much confusion in the minds of so many scholars as about Hans Kelsen's theory, which is commonly known under the name "Pure Theory of Law." If, for instance, a scholar of the stature and standing of Professor Northrop maintains that Kelsen locates the basic norm of the Austrian Constitution of 1920 "in the earliest Constitution of 1867,"'then it seems that there is still room, indeed an intellectual demand, for a brief and simple exposition of Kelsen's theory. We shall attempt it in the following article not without avoiding …

American Legal Realism In Retrospect, Hessel E. Yntema

Vanderbilt Law Review

The ultimate question posed by the realistic movement in American jurisprudence is whether the practical conception of legal study and instruction as projected by legal realism, is really practical. There are two considerations among others which suggest that it is not, whether for training or research. The first is that the volume of existent law of any modern industrialized state is too vast and complicated for the human mind to master in all its technical detail and specialization during the brief time allotted. The second is that, even if this were possible, since the legal materials of the time and …

Gustav Radbruch, Wolfgang Friedmann

Vanderbilt Law Review

As recently as the end of the last World War the name and work of Gustav Radbruch were virtually unknown in the Anglo-American legal world. In 1938 Roscoe Pound, in his encyclopedic survey, "Fifty Years of Jurisprudence," had given a concise account of Radbruch's legal philosophy in the context of his section on "neo-idealism." In 1944 Anton Hermann Chroust wrote a penetrating analysis of Radbruch's philosophy of law, and about the same time the first edition of the present writer's Legal Theory, published on the other side of the Atlantic, included Gustav Radbruch in the survey of major legal philosophers. …

E. Jordan: Critic And Metaphysician Of Modern Civilization, Andrew J. Reck

Vanderbilt Law Review

Elijah Jordan (1875-1953) was one of the most original social and, legal philosophers in the history of American thought. Jordan spent his life in the midwest, near the rural setting from which he came, serving as professor of philosophy at Butler College in Indianapolis from his appointment in 1913 until his retirement 31 years later. Jordan wrote a half dozen volumes that comprise for American philosophy a unique contribution the full significance of which has still to be measured: The Life of Mind,' Forms of Individuality, Theory of Legislation, The Aesthetic Object, The Good Life Essays in Criticism, and on …

Justice, Language And Communication, Julius Stone, G. Tarello

Vanderbilt Law Review

The present paper has been concerned to stress that jurisprudence, insofar as it is not limited to analytical jurisprudence, dare not overlook the distinctive qualities either of common language, or of the special language of lawyers. For what its authors deny above all is the utility of so defining a field--like the justice-field--which is a segment of common language, in terms of a special language or logical structuring similar to those used by lawyers. Nor do we think that the presence of considerations of justice (and therefore of common language statements) in the process of the operation of law, either …

The Function Of Legal Philosophy, Roscoe Pound

Vanderbilt Law Review

For twenty-four hundred years--from the Greek thinkers of the fifth century B.C. who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control--the philosophy of law has taken a leading role in all study of human institutions. The perennial struggle of American administrative law with nineteenth-century constitutional formulations of Aristotle's threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes for a long …

Four Eighteenth Century Theories Of Justice, Clarence Morris

Vanderbilt Law Review

This paper is about an important facet of the justice theories of four eighteenth century European philosophers. The earliest of the four, Hume, thought justice and law were purely human inventions. The next, Montesquieu, said that justice preceded laws because possible relations of justice existed before human ordinances were enacted, and that man, who lives peacefully in the state of nature, invents unjust exploitation after he enters a state of society. Then followed Rousseau who pronounced that contemporary governments had enchained freedom and subverted justice, and whenever a just government did come to power its excellence was doomed to fade. …

Nietzsche, Thomas A. Cowan

Vanderbilt Law Review

I find that the attempt to assess Nietzsche's value to contemporary jurisprudence is fraught with extreme difficulty. Not only was Nietzsche perhaps the most controversial figure in the history of ideas:' this might have happened to one whose message was simple.But in Nietzsche's case the ideas themselves are highly controversial, paradoxical and even "immoral." Like every great thinker Nietzsche was more provocative to his enemies than to his friends. His enemies took their revenge by burying him under a deluge of refutation and abuse. Apparently Nietzsche was guilty of what might be called the crime of "universal treason." He gave …

John Dewey--A Philosophy Of Law For Democracy, Jay W. Murphy

Vanderbilt Law Review

On what bases can a philosophy of law be founded which is equal to the task of the democratization of man in the world today? The purpose of this article is to present some suggestions concerning the fuller use of John Dewey's philosophy in this important regard. In addition to an examination of Dewey's theory of justice, it will be suggested that the richness of Dewey's thought and the variety of its uses in legal scholarship and legal education have yet to be felt.

Justice Holmes And The Common-Law Tradition, John C.H. Wu

Vanderbilt Law Review

Briefly, case law may be described as "a method of developing law which preserves the continuity of legal doctrine, and is, at the same time, eminently adaptable to the needs of a changing society." On the whole, it is not far from the truth to say that "it hits the golden mean between too much flexibility and too much rigidity .... -" But what makes it so matter-of-fact and racy of the soil is to be found in Holdsworth's further observation that "this method keeps the law in touch with life, and prevents much unprofitable speculation upon academic problems which …

Book Reviews, Edgar Bodenheimer, Robert S. Lancaster, Stanley D. Rose, Lloyd B. Urdahl

Vanderbilt Law Review

The Great Legal Philosophers: Selected Readings in Jurisprudence Edited by Clarence Morris. Philadelphia: University of Pennsylvania Press 1959. Pp. 571. $10.00.

reviewer: Edgar Bodenheimer

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Law as Large as Life: A Natural Law for Today and the Supreme Court as its Prophet By Charles P. Curtis. New York: Simon & Schuster. 1959. $3.50.

reviewer: Robert S. Lancaster

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Cases and Materials on Juriprudence By John C. H. Wu. St.Paul: West Publishing Co. 1960. Pp. xliii, 719. $12.00.

reviewer: Stanley D. Rose

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The Law and Legal Theory of the Greeks: An Introduction By J.Walter Jones. New York: Oxford University Press, …

Studies In Legal Philosophy, William R. Anderson

Vanderbilt Law Review

The hazards of planning a symposium in the field of jurisprudence derive largely from the fact that the field is itself ill-defined; the legitimate "province of jurisprudence," to use Austin's phrase, has never been fully agreed upon. A historical approach seemed reasonably satisfactory, however, and what follows is a series of studies of some of the great figures in the history of legal philosophy. Happily, no one of our contributors was satisfied with simple exegesis or even with appraising matters of purely historical importance. Each study is an attempt to deal critically with a facet of its subject which is …

Law As Means To End, Thomas E. Davitt S.J.

Vanderbilt Law Review

The importance of a man can be judged by his influence on the thinking of other men. Periodically during the course of the centuries men have appeared who exercised this power to a commanding degree. The presence of "great" names in all fields of human endeavor attests to this...Such a man was Thomas Aquinas. He was a trail blazer in many regards, one of them being especially his work on law. His was the first systematically organized treatise on law and its philosophical roots, and over the years it has been recognized as a masterful accomplishment. Consequently, during succeeding generations …

Rudolf Von Jhering, Iredell Jenkins

Vanderbilt Law Review

It is often the fate of the giants of thought to have their names live on while their doctrines are neglected, and even for their reputations to wax as their influence wanes. Indeed, this happens at some periods to the work that all such men leave behind them; it is esteemed but not appreciated, acknowledged but not cultivated. The precise reasons for this fall into oblivion vary with every individual case, but there is one factor that is common and constant: the prominence within the work of these men of ideas that push inquiry beyond the comfortable limits that are …

The Legal Philosophy Of Morris R. Cohen, Huntington Cairns

Vanderbilt Law Review

Cohen died in 1947 with five of the numerous books he had planned published. Since that time others have appeared. If he did not live to finish his life's work, he accomplished more than is given to most scholars who teach and participate in the numerous public activities that marked his career. Cohen was not a hopeful man and he would not be attracted by the thought, he once said in conversation, of living life over again--particularly, he added after a pause, if he had to teach mathematics to college students. He was disturbed above everything else by the decline …

Austin's Theory Of The Separation Of Law And Morals, Samuel E. Stumpf

Vanderbilt Law Review

The lingering influence of the natural law theory in England brought forth a powerful new philosophy of law. The chief features of this new theory were developed by Hobbes and Bentham and found their most compelling formulation in the works of the "analytical"jurist, John Austin. What concerned these men most was how to deal with the existence of morally bad laws. Sir William Blackstone had said in his Commentaries that the laws of God are superior in obligation to all other laws; that no human laws should be allowed to contradict them; that human laws are of no validity if …

Domestic Relations -- 1960 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

Domestic Relations--1960 Tennessee Survey

I. Adoption of Children

II. Persons in Loco Parentis

III. Divorce, Alimony and Counsel Fees

1. Venue

2. Jurisdiction

3. Cancellation of Decree

4. Alimony and Counsel Fees

(a) Discretion To Deny Alimony

(b) In Solido--In Futuro

(c) Duty To Pay Counsel Fees

(d) Court Alteration of Support Agreement

(e) Attachment of Property-Non-Residents

5. Jointly-owned Property

IV. Family Immunity in Tort

V. Tenancy by Tenancy by the Entireties

Personal Property And Sales -- 1960 Tennessee Survey, Gilbert S. Merrit, Jr.

Vanderbilt Law Review

A foreigner given to rash generalizations would quickly conclude upon reading this year's sales and personal property cases that the three most flourishing and litigation-producing institutions in Tennessee are the automobile, the General Motors Acceptance Corporation and bootlegging. The automobile is responsible for all five of the cases covered in this survey; in four of the five the General Motors Acceptance Corporation is the defendant; and two of the five grow out of bootlegging activities.

Real Property -- 1960 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

It is unfortunate that the statutes in this state on which such decisions as the instant one are based have not long since been repealed or modified. It is becoming more and more apparent that the courts cannot be expected to lessen the oftentimes arbitrary and seemingly unjust result which flows from the literal application of these statutes. The instant case would have been an excellent one in which to permit the defendant to establish the title of his grantors on the merits. But in spite of the desirability of relaxing the rigorous enforcement of such statutes, the court continues …

Torts -- 1960 Tennessee Survey, John W. Wade

Vanderbilt Law Review

As usual, there were about forty reported Torts cases this year. There were no striking new developments. Many of the cases were merely routine, some of them indeed carrying quite long opinions without deciding anything which will give them real value as precedents for the future. The great majority of the cases involved actions for negligence, considerably more than half the cases being concerned with traffic accidents.

Ancillary Rights Of The Insured Against His Liability Insurer, Robert E. Keeton

Vanderbilt Law Review

The primary right of the insured against his liability insurer is the right to reimbursement of loss falling within the coverage defined in the policy. The scope of that right is ordinarily determined by construction of the clauses defining the Bodily Injury Liability and Property Damage Liability Coverages.' The present article is concerned with ancillary rights, arising in part from these and other policy provisions and in part from the relationship created by liability insurance. These rights of the insured are, from the opposite point of view, duties of the insurer--duties concerned principally with settlement of the tort claim or …

Semi-Direct Action Against Liability Insurers: Current Problems, Ronan E. Degnan

Vanderbilt Law Review

The legislatures of the various states of the union have by and large seen fit to forbid actions by an injured party directly against a liability insurer. This limitation, founded upon policy reasons which are doubtless apparent to the reader, has led the interested parties to seek out various indirect or semi-direct methods for reaching the insurance fund. This article is designed to discuss two particularly difficult problems which have arisen because of this semi-direct mode of proceeding: (1) By what appropriate methods can a judgment be obtained against a nonresident tort feasor or his estate so as to create …

Overlapping Coverages In Liability Contracts; Subrogation, John A. Appleman

Vanderbilt Law Review

Within the last twenty-five years, approximately, a considerable transition has taken place in approaching the coverages of automobile policies. At one time, liability insurers used to require their policy-holders to pledge that they did not carry other insurance of like character. It is difficult to understand why this situation ever arose. It may have been an outgrowth of fire coverages, or health and accident provisions, in which a moral hazard actually might exist where excessive protection is carried. Thereafter, instead of making this a matter of warranty, policies frequently provided that in the event there should be any other valid …

Automobile Policy Exclusions, A. L. Plummer

Vanderbilt Law Review

The exclusions in the automobile liability insurance policies have required much litigation to clarify and interpret the intent of the draftsmen and underwriter who wrote them. An exclusion takes away or modifies certain coverages given in the insuring agreements. The giving and taking-away provisions of insurance policies are necessary in the making of a limited contract. They tend to avoid duplication of coverage, limit the assumed risk or hazard, avoid underwriting the primary liabilities of others that should be covered by other policy forms, and otherwise limit the scope of coverage. Since 1936 there has been a constant effort by …

Insurance Coverage Against Explosion Damage, William C. Brewer Jr.

Vanderbilt Law Review

Astronomers tell us that the world began with an explosion, and common sense tells us that it may end with one. Today, the explosion is the symbol of the corruption of knowledge. It has always suggested the devastation of property and the tragedy of death, reminding us that man is never in full control of the forces he has loosed for his material benefit. When accidental explosion became frequent enough for consideration by actuaries, it became a natural subject for insurance. It is proposed here to survey the contractual provisions under which explosion may be insured, and to examine briefly …

Agency -- 1960 Tennessee Survey, Warren A. Seavey

Vanderbilt Law Review

In Richardson v. Snipes' both parties to an exchange of land employed the plaintiff, the contract providing that the defendant would pay no commission unless the transfer was completed. The other party satisfied the conditions imposed by the defendant, who, however, refused to go through with the exchange. The court properly reversed judgment for the defendant; but the result should not have turned upon the finding of bad faith of the defendant, as the court held. The plaintiff had performed his undertaking which was to provide one who would exchange titles and who would have gone through with the transaction …

Business Associations -- 1960 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

Two opinions of the court of appeals during the survey period-one unpublished-discussed the fiduciary duties owing by officers and directors to their corporations. In Harriman Welding Supply Co. v. Lake City Lightweight Aggregate Corp.,' Presiding Judge McAmis of the eastern section found occasion to state the principles applicable when the fairness of contracts between two corporations having interlocking directorates is questioned.

Criminal Law And Procedure -- 1960 Tennessee Survey, Robert E. Kendrick

Vanderbilt Law Review

Offenses against the person-(a) Homicide: Parties.-Because of an asserted lack of intention to commit homicide, two persons asked the state supreme court in Eager v. State to reverse their convictions of involuntary manslaughter for allegedly, while intoxicated, killing a pedestrian with an automobile driven by one and directed and aided by the other. In affirming, it would have been enough to dispose of this contention to invoke the statutory provision that "manslaughter is the unlawful killing of another without malice, either express or implied, which may be... involuntary, but in the commission of some unlawful act,"' to call attention to …