Law Commons^™

Priority Paradoxes In Patent Law, Richard H. Stern

Vanderbilt Law Review

The constitutional provision governing patents gives Congress the power to promote the progress of useful arts "by securing for limited Times to... Inventors the exclusive Right to their... Discoveries. "'Because an "exclusive right" suggests an exclusive grant, the Patent Office interference proceeding has been created for the purpose of determining administratively the question of priority of rights between two or more parties claiming substantially the same invention. This article attempts to state in terms of an informal axiomatic system the rules of law for determining priority of invention, and then examine that system to explore its possible paradoxes Finally, an …

The Bank-Depositor Relationship--A Comparison Of The Present Tennessee Law And The Uniform Commercial Code, John A. Spanogle Jr.

Vanderbilt Law Review

The author examines the relationship of the bank and its deposit or under existing Tennessee law and then points out changes and modifications which would arise under the Uniform Commercial Code. Professor Spanogle notes that many of the problems discussed are not governed by statute in Tennessee and that the case law is unclear in certain areas. This is one of his reasons for recommending the adoption of the Uniform Commercial Code by the Tennessee legislature.

Culture Patterns And Judicial Systems, Stuart S. Nagel

Vanderbilt Law Review

Comparative law, like comparative government in general,' has largely confined itself to unintegrated descriptions of European legal principles. Not only has comparative law traditionally been limited in its subject matter, but it also has rarely, if ever, made use of statistical techniques in accounting for the differences observed. It is the purpose of this paper to analyze statistically the relations between industrialism, democracy, and collectivism on the one hand and the judicial process on the other in ten different societies.

Aid For The Medically Indigent, Jacob Meerman, Millard Long

Vanderbilt Law Review

In the following paper we discuss the ability of low income groups to purchase needed care, consider the private alternatives to government action, find these deficient, and hence review various proposals made to the Congress. Finally, we examine a proposal which, while originally propounded in the early Fifties, has received little attention in the recent debates. To the authors, it would seem the best approach to care for the indigent.

The Ethical Foundation For The Pragmatic Conception Of Justice, Anton Donoso

Vanderbilt Law Review

Since the death of John Dewey ten years ago, his thought has been the subject of a number of works, some of the most significant of which deal with his philosophy of law and of justice. The question of his conception of justice arises out of his general effort to show that the resolution of moral conflicts between various claimants is possible by the use of the scientific method, by which is meant intelligent examination justified by reliable public test through reference to consequences. This entails the formulation of a norm of justice that is both valid (true) and morally …

Meaning And Structure Of Law In Islam, Salah-Eldin Abdel-Wahab

Vanderbilt Law Review

There are many other reasons to believe that consideration of Islamic jurisprudence should prove amply rewarding in the comparative study of law. A legal system which still underlies the legal life and social conduct of some 400 million people (one sixth of the world population) cannot be ignored. The original solutions which it provides for problems of high complexity and its very advanced normative structure which consists entirely of works by jurists, not of government codes and statutes, are worthy of consideration.

Policyholders' Interest Income From Life Insurance Under The Income Tax, Richard Goode

Vanderbilt Law Review

Life insurance policies usually combine pure insurance and saving features. This fact is recognized by the industry and by those who draw up national economic accounts but is not fully reflected in the income tax. None of the return on saving through life insurance is taxed to a policyholder prior to the maturity, redemption, or surrender of a policy. Part of the return, but apparently only a small fraction of the total, is taxed when policies mature for reasons other than the death of the insured or are redeemed or surrendered. Inasmuch as most forms of investment income are taxable, …

Perpetuities, Restraints On Alienability,And The Duration Of Trusts, Ralph A. Newman

Vanderbilt Law Review

There is no doubt that we must have some fairly well-defined standard for determining when a restraint on alienation lasts too long. There is need for only one rule directed to the ultimate objective sought the establishment of a limitation upon the period during which alienability may be postponed. This limitation of the period of permissible duration of the state of inalienability must apply to all interests of any kind, present or future, vested or contingent, legal or equitable, absolute or in trust. The test of suspension should be the practical possibility, as well as the legal possibility, of alienation. …

Book Note, Law Review Staff

Vanderbilt Law Review

Donald K. Carroll, Judge of the District Court of Appeal, First District of Florida, has presented in this book a treasure house of materials useful to every judge. Included in it are writings from a multitude of sources, published both in this country and Europe. The book's primary purpose is to provide an anthology of inspirational and helpful literary gems for use by judges in their work; its secondary purpose is to give source materials for preparing speeches or writings on judicial subjects.

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Full Faith and Credit--Prior Conflicting Divorce Decrees

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Conflict of Laws--Tax Claims of One State Held Not Enforceable in Another State

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Constitutional Law--Discrimination--Statute Prohibiting Racial Discrimination in Renting of Private Apartment Houses Does Not Violate Due Process

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Constitutional Law--Establishment of Religion--Recitation of State Composed Prayer in Public Schools Held Unconstitutional

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Criminal Law--Narcotics-Criminal Prosecution for Addiction Is a Cruel and Unusual Punishment Violating Eighth and Fourteenth Amendments

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Damages--Collateral Source Rule--Value of Medical Services Plaintiff Received as a Gratuity Not Allowed as Special Damages

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Due Process--Taxation of Insurance Premiums Paid to Foreign Insurers on Property …

The Western Hemisphere Trade Corporation:A Functional Perspective, Leo J. Raskind

Vanderbilt Law Review

Among the statutory forms available for the conduct of foreign operations the Western Hemisphere Trade Corporation, traditionally the Cinderella of the Internal Revenue Code, has been reoriented by the new provisions of the Revenue Act of 1962. Unlike its story-book counterpart, however, the Western Hemisphere Trade Corporation does not emerge in a state of new magnificence. The new act,by curtailing, but not eliminating, the deferral of taxation on earnings retained abroad by United States controlled foreign subsidiaries, has initiated a process of review and of reorganization of the tax planning of foreign operations. Since the new statutory provisions affect existing …

Book Review, Chester J. Antieau

Vanderbilt Law Review

Any book that educates the American community to an under-standing of and an appreciation for the Bill of Rights serves a laudable end. And conceivably any author is entitled to define his own terms. However, Mr. Weinberger indicates his displeasure with the traditional meaning of the term, "Bill of Rights," as embracing the first ten amendments and sets out to include within his comparable term what he calls "Additional Amendments Dealing with Personal Liberty"' thus adding the 13th, 14th, 15th and 19th amendments, as well as "Provisions in the Original Constitution Dealing with Personal Liberty" which he specifies as the …

Statement Of Fact Versus Statement Of Opinion -- A Spurious Dispute In Fair Comment, Herbert W. Titus

Vanderbilt Law Review

In attempting to solve problems in a variety of areas lawyers continuously make use of a distinction between statements of "fact" on the one hand and those of "opinion" on the other.' So versatile is this distinction that it has been used to solve problems raised in such diverse areas of the law as evidence and defamation. However, since the turn of the century the fact-opinion dichotomy has been severely criticized as a means of deciding what kinds of testimony should be allowed in a legal trial. Yet in the law of defamation, where this distinction has been extensively applied …

Book Notes, Law Review Staff

Vanderbilt Law Review

A TREASURY OF LEGAL QUOTATIONS Selected by Paul C. Cook New York:Vantage Press, 1961. Pp.181. $5.00

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COLONIAL JUSTICE IN WESTERN MASSACHUSETTS Edited by Joseph H. Smith Cambridge: Harvard University Press, 1961. Pp.ix, 426. $7.50.

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THE SUPREME COURT OF THE UNITED STATES: ITS BUSINESS, PURPOSES, AND PERFORMANCE By Paul A. Freund Cleveland: World Publishing Company, 1961. Pp.224. $1.35.

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A LAWYER'S VERSUS. By Irving J. Siegal New York: Vantage Press, 1960. Pp.40. $2.00.

The "Reception" Of Defamation By The Common Law, Colin R. Lovell

Vanderbilt Law Review

The rather low opinion held by Mr. Bumble concerning the logic of the law must be set off by the Holmesian reminder that not "logic," but"experience" has kept the law viable. The warning has peculiar applicability in looking at the common law doctrines on defamation. Only the experience of history can explain why, in contrast to Roman civil law systems with their view that all defamations and insults are injuriae, with a single remedial action, the common law has no interest in mere bad language' and goes on to have two separate actions for defamation. Moreover, these are quite artificially …

Practical Problems In Preparation And Trial Of Libel Cases, Laurence H. Eldredge

Vanderbilt Law Review

Any deterrent to complete information about a candidate for admission to the bar is contrary to the public welfare. A conditional privilege is an affirmative defense, which must be pleaded and proved. Not until the defendant rests his case, after what may be a long and expensive trial, does he know where he stands on such a defense, and it is generally left to the lay jurors to decide, under "instructions." Life being what it is, only a few courageous lawyers will have the hardihood to run the risk of exposing themselves to a libel jury trial, with its uncertainties …

Defamation, A Camouflage Of Psychic Interests: The Beginning Of A Behavioral Analysis, Walter Probert

Vanderbilt Law Review

Does the law of defamation need to be reformed? The author thinks so. Professor Probert rejects the doctrine of libel per se and questions the courts' understanding and use of the term "reputation." It is his belief that plaintiffs on an individual basis should have increased benefit of the knowledge accumulated by the various social sciences in proving the harm done by the alleged defamation, with more liberalization in the requirements of pleading and proof than is now generally countenanced by the courts.

What's Wrong With Baker V. Carr?, Robert Lancaster

Vanderbilt Law Review

The decision of the majority of the Supreme Court in Baker v. Carr, the recently decided Tennessee Reapportionment Case, may well turn out to be one of the landmark decisions of American jurisprudence. If by reason of apathetic acquiescence such a judicial intrusion is permitted to go unchallenged and undebated, our federal system of limited and constitutional government may be further weakened. Although the balance of power as between the states and the national government has shifted and this shift has been reflected in and furthered by judicial interpretation of our Constitution, it seems questionable that such a far-reaching and …

Theoretical And Comparative Aspects Of Reapportionment And Redistricting: With Reference To Baker V. Carr, Charles P. Edwards Ph.D.

Vanderbilt Law Review

Dr. Edwards in this article applies political theory to evaluate the impact of reapportionment and redistricting on representative government. In so doing he discusses the sources of this political theory and the goals of representative government. He also surveys comparative political practice in Great Britain and the United States. In suggesting various legislative, administrative, and judicial remedies to malapportionment and inequitable districting, Dr. Edwards concludes that the effect of the present litigation resulting from the Baker v. Carr decision will be to arouse public opinion and prompt legislators to meet the accumulated challenges of urbanization as well as other contemporary …

Constitutional Questions Involved In The Expenditure Of Compulsorily Paid Union Dues Under The Railway Labor Act, Edwin R. Render

Vanderbilt Law Review

Prior to the enactment of federal labor legislation the negotiation and execution of union and closed shop contracts raised many legal questions of which compulsory payment of union dues and assessments was but one. Where an employer agreed to a closed' or union shop, few legal problems arose. Frequently, the employer only agreed to a closed or union shop after considerable pressure had been exerted, thus presenting the problem of the legality of economic pressure for such an objective. In the absence of statute, some state courts held that the closed or union shop was illegal,while others took the view …

Book Reviews, Edward S. Mason, Stanley D. Rose, Reber Boult, Robert N. Covington

Vanderbilt Law Review

This volume, which brings together, with one exception, all of Stocking's papers relating to workable competition, is more than a random collection of essays. As he indicates in the preface, the papers had been conceived from the beginning as segments of a book, and they proceed to cover systematically the relation of the concept of workable competition to the major areas of antitrust policy.

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Sir Frederick Pollock was born in 1845 and died in 1937. Throughout this long life, his industry was apparently unflagging. His mark is clearly discernible in wide areas of English law. Every student of the …

The Free-Ness Of Free Speech, Robert A. Leflar

Vanderbilt Law Review

Freedom of speech under Anglo-American law has never been an absolute right, and numerous exercises of free speech (and of free press)have been subjected to inhibiting legal sanctions, both criminal and civil,almost from the beginning of our common law heritage. It is true that the Blackstonian rule prohibiting "previous restraints upon publications" purported, to protect absolutely the initial right to publish. But an absolute right to publish what one may thereafter be criminally punished or forced to pay civil damages for publishing is obviously illusory in its absoluteness.It is not an absolute right in any real sense of the term. …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Civil Rights Act of 1957 Gives Federal Court Mandatory Jurisdiction To Entertain Suit by the United States To Enjoin State Criminal Prosecution

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Conflict of Laws--Federal Tort Claims Act--Applicable Substantive Law Held To Be Whole Law of State Where Negligence Occurred

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Constitutional Law--Discrimination--Conviction for Disturbing the Peace in Lunch Counter Sit-in Held To Violate Due Process for Lack of Evidence

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Federal Courts--Erie Doctrine--Opinion Evidence Held Admissible Under Federal Rule 43(a) in Diversity Case

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Federal Courts--Federal Question Jurisdiction--Lack of Jurisdiction to Enforce Award of Airline System Board of Adjustment in Labor Dispute

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Interstate Commerce--Taxation--State Privilege Tax …

The Absolute Privilege Of The Executive In Defamation, Arno C. Becht

Vanderbilt Law Review

Should executive officers have an absolute privilege to commit defamation? This is Professor Becht's inquiry as he traces the evolution and application of this privilege from its origin in England through its development in American state and federal courts. After balancing the factors for and against absolute immunity, the writer reaches the conclusion that officials should be reduced to a qualified privilege in defamation.

Defamation And The Right Of Privacy, John W. Wade, Dean

Vanderbilt Law Review

The history of the two torts of defamation and unwarranted invasion of the right of privacy has been greatly different. Defamation developed over a period of many centuries, with the twin torts of libel and slander having completely separate origins and historical growth. Professor Street summarizes this history by declaring that there was "a perversion of evolutionary processes," with the result that there was produced "a rather heterogeneous pile which should normally have gone to form a consistent body of legal doctrine, but which on the contrary, comprises many disconnected fragments moving in a confused way under the impulse of …

Agency -- 1961 Tennessee Survey (Ii), W. Harold Bigham

Vanderbilt Law Review

I. Employee and Independent Contractor Distinguished

During the abbreviated survey period there were no significant or momentous decisions by Tennessee courts--state or federal--involving agency principles. Indeed the only state appellate case properly to be considered here involved the rather pedestrian question of whether a petitioner for workmen's compensation benefits was, vis-a-vis the defendant prime contractor, an employee or an independent contractor.

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II. Misrepresentations of Agent

Butts v. Colonial Refrigerated Transportation, Inc. is merely another example of the Sixth Circuit's unfortunate proclivity for writing per curiam affirmances. It is well-nigh impossible to determine whether the liability of the defendant which …

Psychosexuality And The Criminal Law, Ralph Slovenko, Cyril Phillips

Vanderbilt Law Review

It is common knowledge that sexual mores vary in every culture. Sexual ethic and social structure are interrelated. Sexual morality is not the same in an industrially advanced society as it is in a primitive agriculture regime (the industrial revolution's influence upon sexual morals will so attest) Sexual mores vary in different parts of the same country (Puritan Massachusetts and pioneer Wyoming could not be expected to develop the same set of rules), and indeed between different social strata in the same one locality. Every society imposes regulations and codes upon sexual relations, and quite rightly. However, the striking fact …

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

Vanderbilt Law Review

During the period covered by this survey the pickings by way of decided cases have been pretty slim. Only two cases are here the subject of extended comment.' However, the comprehensive congressional study of state taxation of multistate business has been extended until July 1, 1963. The expanded congressional study now being conducted includes all forms of state taxation of interstate commerce, such as franchise taxes, sales and use taxes, gross receipts taxes, and ad valorem taxes. Under the chairmanship of Congressman Willis, a subcommittee of the House Judiciary Committee with the help of a sizeable staff and an advisory …

Equity -- 1961 Tennessee Survey (Ii), T. A. Smedley

Vanderbilt Law Review

During the current survey period, each of the higher Tennessee courts has been called upon to exercise its injunctive powers in significant and perplexing types of controversies. The court of appeals for the western section had to decide whether to take the risk of interfering in a bitter dispute between opposing factions of a church which had been torn by interfraternal strife for several years. In the middle section court of appeals an injunction was sought to restrain a store owner from operating his business under the name of a former manager of the store who had left this position …

Subnormal Mentality As A Defense In The Criminal Law, John E.V. Pieski

Vanderbilt Law Review

Although little is left of the theory which ascribed to mental deficiency causative force in criminal conduct, the entire episode taught at least two valuable lessons to modem criminologists. First, it served as a warning against superficial research and hasty conclusions, thus inducing subsequent scholars to take a more scientific approach to similar problems. Second, it aided in alerting others that, although not all or even most criminals are mentally deficient, there are an appreciable number of criminals who possess a subnormal mentality, and who must be reckoned within the criminal law. Notwithstanding that the legal profession has utilized the …