Law Commons^™

Tax Problems Presented By The Tennessee Constitution, Eugene L. Parker Jr.

Vanderbilt Law Review

Although the North Carolina Constitution of 1776 had no specific tax provision, the draftsmen of Tennessee's Constitution of 1796 initiated a standard which reflected the creed of the frontier. These pioneers thought that every free man should contribute something to the support of the government and those with more ability should contribute more. The ability of the citizen was measured by the quantity of land and the number of slaves, which provided roughly a fair differentiation. Everyone had a similar log cabin; one lot in a settlement was worth about the same as another; one cleared acre was the equal …

Book Reviews, Noel T. Dowling (Reviewer), Hugo L. Black, Jr. (Reviewer), George H. Cate, Sr. (Reviewer), Henry N. Williams (Reviewer)

Vanderbilt Law Review

On Understanding the Supreme Court

By Paul A. Freund

Boston: Little, Brown & Company, 1949. Pp. 130. $3.00

reviewer: Noel T. Dowling

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Courts on Trial

By Jerome N. Frank

Princeton: Princeton University Press, 1949. Pp. vii, 441. $5.00

reviewer: Hugo L. Black, Jr.

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Hugo L. Black: A Study in the Judicial Process

By Charlotte Williams

Baltimore: The Johns Hopkins Press, 1950. Pp. vii, 208. $3.50.

reviewer: George H. Cate, Sr.

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Hatch Act Decisions (Political Activity Cases) of the United States Civil Service Commission

By James W. Irwin

Washington: United States Government Printing Office, 1949. Pp. 304. $1.50 …

Cross-Examination Of Neuropsychiatric Testimony In Personal Injury Cases, Hubert W. Smith

Vanderbilt Law Review

Trial lawyers are well aware that fully 50 to 60% of all civil litigation involves some claim of physical or psychic disability. Purely physical disabilities are extremely difficult to evaluate but when the allegedly disabling symptoms are of psychic origin, wholly or in part, legal tribunals require the most competent illumination the mental sciences can provide if error and imposition are to be minimized. The purpose of the present presentation is not to impugn the mental sciences but rather to ask whether any astringent principles exist for shrinking extravagant testimony. The intelligent counsel does not aspire to annihilate and atomize …

Tort Liability For Abusive And Insulting Language, John W. Wade

Vanderbilt Law Review

"Sticks and stones may break my bones, but names will never hurt me."This old proverb did not originate with the courts, but it has commonly been regarded as expressing their attitude. Name calling is ordinarily not regarded as actionable under the Anglo-American legal system, no matter how opprobrious or violent the epithet.

A recent Ohio case will illustrate. In Bartow v. Smith,' plaintiff's attorney in his opening statement to the jury declared that a dispute had, arisen between defendant and plaintiff concerning the sale of a farm. Defendant, seeing plaintiff on the city street, came up to her and began …

Jurisdictional Amount In The Federal District Courts, William W. Hurst

Vanderbilt Law Review

In 1925, Judge Dobie, then professor of law at the University of Virginia, advanced a formula for determining the value of the matter in controversy in all federal question and diverse citizenship cases in the federal district courts. He called it a "plaintiff-viewpoint rule," and stated it thus: "The amount in controversy in the United States District Court is always to be determined by the value to the plaintiff of the right which he in good faith asserts in his pleading that sets forth the operative facts which constitute his cause of action."

Since then, the rule has received sanction …

The Tennessee Statutory Presumption Of Agency By The Operation Of A Motor Vehicle, Eugene N. Collins

Vanderbilt Law Review

In cases involving the negligent operation of a vehicle by a person not the owner plaintiffs have experienced extreme difficulty in proving that a master-servant relationship existed between the driver and the owner at the time of the accident so as to render the owner liable under the doctrine of respondeat superior.' It is frequently of the utmost importance to a plaintiff to prove that this relationship did exist, because in a large number of cases it is the owner of the vehicle, not the driver, who is financially responsible. A large majority of the courts came to recognize the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

AUTOMOBILE INSURANCE--COMPREHENSIVE CLAUSE EXCLUDING MECHANICAL BREAKDOWN--REQUIREMENT THAT EXCLUDED RISK BE SOLE PROXIMATE CAUSE

BAILMENTS--DELIVERY OF POSSESSION--PROPERTY DEPOSITED IN PUBLIC LOCKER

CONSTITUTIONAL LAW--INFRINGEMENT OF CIVIL RIGHTS BY PRIVATE INDIVIDUALS--CAUSE OF ACTION UNDER FEDERAL STATUTE

CONSTITUTIONAL LAW--RIGHT TO JURY TRIAL--ACTION FOR STATUTORY PENALTY UNDER PRICE ..CONTROL ACT

CONSTITUTIONAL LAW--UNITED NATIONS CHARTER--APPLICATION AS TREATY TO RENDER STATE LAW INVALID

CONTRACTS--CONSIDERATION--NEW AGREEMENT TO PAY LESS THAN ORIGINAL CONTRACT PRICE

CONTRACTS--DEFINITION OF TERMS--EFFECT OF PART PERFORMANCE IN MAKING TERMS CERTAIN

COPYRIGHT--ARTIST'S RIGHTS IN PRODUCTION AFTER SALE--"MORAL RIGHT" TO PREVENT DESTRUCTION

CRIMINAL LAW--SEARCHES AND SEIZURES--EFFECTS OF VIOLATION OF CONSTITUTIONAL RIGHT ON JURISDICTION OF FEDERAL COURTS

JOINT …

Book Notes, Law Review Staff

Vanderbilt Law Review

Book Notes

Selected Essays on Family Law Compiled and Edited by a Committee of the Association of American Law Schools

Brooklyn: The Foundation Press, Inc., 1950. Pp. 1122. $9.50

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The Law of Cadavers and of Burial and Burial Places

By Percival E.Jackson

New York: Prentice-Hall, Inc., 1950. Pp. lxxxvii, 734. $12.50

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Manual of Preventive Law

By Louis M. Brown

New York: Prentice-Hall, Inc., 1950. Pp. 346. $5.00

Books Received, Law Review Staff

Vanderbilt Law Review

Books Received

Availability for Work

By Ralph Altman

Cambridge: Harvard University Press, 1950. Pp. 350. $4.50

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Comparative Law, Cases and Materials

Rudolf B. Schlesinger

Brooklyn:The Foundation Press, Inc., 1950. Pp. 552. $7.50

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Federal Jurisdiction and Procedure, Cases

By Ray Forrester

St. Paul:West Publishing Company, 1950. Pp. 990. $8.50.

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Financial History of Tennessee Since 1870

By James E. Thorogood

State of Tennessee: Department of Finance and Taxation, 1950. Pp. 245.

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International Law, Cases and Materials

By Edwin D. Dickinson

Brooklyn: The Foundation Press, Inc., 1950. Pp. 740. $8.00

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Primer of Procedure

By Delmar Karlen Madison:

Campus …

Recent Cases, Law Review Staff

Vanderbilt Law Review

RECENT CASES

ATTORNEYS--REINSTATEMENT PROCEEDINGS--JURISDICTION OF DISBARRING COURT

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AUTOMOBILE LIABILITY INSURANCE--ESTOPPEL BY JUDGMENT--PRIOR JUDGMENT AGAINST INSURED AS BAR TO INSURER'S DEFENSE OF LACK OF COVERAGE

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BURGLARY INSURANCE--CRIMINAL ACT OF EMPLOYEE OF INSURED--HARM TO THIRD PERSON AS JUSTIFICATION

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CHATTEL MORTGAGES--MORTGAGEABILITY OF I.C.C. CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY--APPROVAL OF COMMISSION AS CONDITION PRECEDENT

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CONSTITUTIONAL LAW--DUE PROCESS--MANDATORY MINIMUM PRICE MARK-UPS ON INTOXICATING LIQUORS

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CONSTITUTIONAL LAW--OATH OF ALLEGIANCE AND OATH OF OFFICE--POWER OF LEGISLATURE TO ENLARGE UPON CONSTITUTIONAL PROVISION

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CONVEYANCES--CONSTRUCTION OF LIMITATIONS--ENTAILING LANGUAGE AS WORDS OF PURCHASE OR WORDS OF INHERITANCE

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CRIMINAL LAW--PRIVILEGE OF SELF-DEFENSE--DUTY OF OCCUPANTOF …

Books Received, Law Review Staff

Vanderbilt Law Review

BOOKS RECEIVED

BUSINESS ORGANIZATION By Alfred F. Conard Brooklyn: The Foundation Press, Inc., 1950. Pp. vii, 661. $7.00.

CASES ON FEDERAL COURTS By Charles T. McCormick and James H. Chadburn Brooklyn: The Foundation Press, Inc., 1950. Pp. 921. $8.00.

CASES AND MATERIALS ON WORLD LAW By Louis B. Sohn Brooklyn: The Foundation Press, Inc., 1950. Pp. 1363. $8.00.

FEDERAL ESTATE AND GIFT TAXATION: CASES AND MATERIALS By William C. Warren and Stanley S. Surrey Brooklyn: The Foundation Press, Inc.,1950. Pp. vii, 518. $7.00.

HATCH ACT DECISIONS By James W. Irwin Washington. United States Government Printing Office, 1949. Pp. v, 304. …

Admissibility In Criminal Prosecutions Of Proof Of Other Offenses As Substantive Evidence, Clinton J. Morgan

Vanderbilt Law Review

"The general rule has been well established that on prosecution for a particular crime evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it be a crime of the same character, is irrelevant and inadmissible." This statement by the Tennessee court announces the basic rule regarding the matter of proof of other crimes as substantive evidence--a rule which is quoted and adhered to in virtually every American jurisdiction. The evidence is not excluded because it has no probative value, but …

The Genocide Convention And The Constitution, Myres S. Mcdougal, Richard Arens

Vanderbilt Law Review

What is traditional for common crimes can scarcely be oppressive innovation for mass-murder. Even freedom of communication is not, furthermore, an absolute in democratic preference: security and human decency must likewise have their place.

It is no little irony that argument must be made in support of a convention to suppress genocide. "The spectacle," writes a contemporary journal of opinion, "of modern man explaining his right to existence is an odd one." The Genocide Convention is but one of many interrelated measures in a world-wide program to secure peace and respect for the dignity of the individual human being. Rational …

Erie To York To Ragan -- A Triple Play On The Federal Rules, Edward L. Merrigan

Vanderbilt Law Review

Approximately twelve years have passed since the Supreme Court of the United States promulgated the Federal Rules of Civil Procedure almost simultaneously with its decision in Erie R. R. v. Tompkins.' These two events revolutionized almost every phase of practice in the federal courts. The Rules substituted uniformity for state conformity in federal procedure, while the Erie decision required an adherence to state conformity in matters of substantive law.

As a result of this concurrent, diverse treatment of substantive and adjective law, it was assumed that the Court intended, in future diversity of citizenship cases, to recognize the dichotomy of …

Patent Monopolies And Free Enterprise, Myron W. Watkins, George W. Stocking

Vanderbilt Law Review

Public policy has long recognized the intimate relation between a dynamic technology and a well-adjusted economy. Without experiment, industrial arts stagnate. Rightly understood, invention is synonymous with improvement in the industrial arts, and invention comes about only from experimenting. Not every inventor finds what he is looking for, true enough, or is looking for what he finds. But unless, consciously or unconsciously, he is seeking a new way to do something or a new "combination of matter" he will never discover anything.

To encourage experiment and thus foster technical improvment is the avowed purpose of the American patent system. The …

Conflict Of Laws In Multistate Fraud And Deceit, William O. Beach Jr.

Vanderbilt Law Review

Unlike most conflict of laws questions, the choice-of-law problem in tort actions based on multistate fraud and deceit has been given surprisingly little attention. Until recent years the problem had been raised in but two or three reported cases, and no real attempt had been made to analyze and clarify it. The recognition and scanty treatment of the problem in the Restatement of Conflict of Laws' has perhaps been primarily responsible for the growing awareness of it in the courts in the past two decades. Nevertheless, neither the courts nor the secondary authorities have come forward with a thorough study …

Bills To Remove Cloud In Tennessee, Henry D. Bell

Vanderbilt Law Review

The bill in equity to remove cloud from title has been recognized in all of the American states. There has been, however, no agreement among the states as to the cases which come within the scope of the bill. Every bill to remove cloud presents two essential questions: (1) does the complainant have an interest in the property which entitles him to maintain the bill, and (2) does the adverse claim constitute a "cloud" on the title which equity will remove? The purpose of this Note is to review the authorities to determine what is necessary to satisfy these two …

Book Reviews, Stanley D. Rose (Reviewer), Charles C. Trabue, Jr. (Reviewer)

Vanderbilt Law Review

READINGS IN AMERICAN LEGAL HISTORY

Compiled and edited by Mark DeWolfe Howe

Cambridge: Harvard University Press, 1949. Pp. 529.$7.50

reviewer: STANLEY D. ROSE

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THE GROWTH OF AMERICAN LAW: THE LAW MAKERS

By James Willard Hurst

Boston: Little, Brown and Co., 1950. Pp. xiii, 502. $5.50

reviewer: STANLEY D. ROSE

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REASON AND LAW

By Morris R. Cohen

Illinois: The Free Press, 1950. Pp.211. $3.50

reviewer: STANLEY D. ROSE

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AN INTRODUCTION TO LEGAL REASONING

By Edward H. Levi

Chicago: The University of Chicago Press, 1949. Pp. 74. $2.00

reviewer: STANLEY D. ROSE

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LIVING LAW OF DEMOCRATIC SOCIETY

By …

A Better Theory Of Legal Interpretation, Charles P. Curtis

Vanderbilt Law Review

We have, almost all of us, I think, been brought up in the belief that the interpretation of legal documents consists essentially in a search for the intention of the author. I take it the classic, and I am sure the most elegant, exposition of this doctrine is the paper which Vaughan Hawkins, almost ninety years ago, in 1860, read before the juridical Society. Thayer printed it as an appendix in his Preliminary Treatise on Evidence and said of it, "the nature of the inquiry is described with penetration and accuracy." Hawkins states our creed in a few sentences...

"[I]n …

Interpretation Of Statutes In Derogation Of The Common Law, Jefferson B. Fordham, J. Russell Leach

Vanderbilt Law Review

The tendency of the lex scripta to supplant the lex von scripta has carried far since Roscoe Pound published his provocative paper on "Common Law and Legislation" in 1908. One can note at the same time indications that statute law is being received with much less hostility. The surprising thing, however, is that legislation in general is not at this day getting a far more sympathetic reception by lawyers and judges. Clearly they make up the professional group which has the largest share in the drafting and enactment of statutes. In actual practice, moreover, lawyers are given to committing private …

Factors Influencing Judges In Interpreting Statutes, Arthur W. Phelps

Vanderbilt Law Review

There has been recent discussion of abandoning the literal meaning rule and most of the other rules of statutory construction. A broader principle is favored which will allow the full play of the rational processes of the court. This view has great appeal, and, in terms of freeing judges who apply rules as rules without regard to their object, serves a need. But if it means a sudden release of the judiciary from always starting with a statute as it reads--as it is written--as it has meaning for most of us--it is a harmful suggestion. Law is something more than …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Automobiles--Family Purpose Doctrine--Automobile Owned by other than Head of Family

Contracts--Effect of Illegality--Recover Where No Moral Turpitude involved and Purpose of Statute Not Violated

Corporations--Liability of Officer to Creditors for Excessive Salary--Burden of Proof on Defendant to Show Reasonableness

Criminal Law--Proximate Cause--Responsibility for Death Due to Acts of Persons Opposing a Felony

Criminal Law--Violation of the Mann Act--Actual Transportation Entirely within a Single State

Evidence--Confidential Communications between Spouses--Admissibility of Testimony as to Conduct of Party Spouse

Insurance--Commercial--Radius Endorsement in Automobile Insurance--Effect of Breach after Return to Designated Area

Personal Property--Finding Lost Goods--Chambermaid's Right to Goods Found by Her …

Cooperative Action For Improved Statutory Interpretation, Frank E. Horack Jr.

Vanderbilt Law Review

During the past quarter century there has been a constant acceleration in legal periodical comment concerning statutory construction. Judges, practicing attorneys and law professors all have echoed basic dissatisfaction with the operation and application of the rules of statutory interpretation. Some would return to the "safe old ground" of literal interpretation; others would find relief in an expanded use of extrinsic aids; all find the process in a state of confusion and disintegration.

Remarks On The Theory Of Appellate Decision And The Rules Or Canons About How Statutes Are To Be Construed, Karl N. Llwellyn

Vanderbilt Law Review

One does not progress far into legal life without learning that there is no single right and accurate way of reading one case, or of reading a bunch of cases. For

(1) Impeccable and correct doctrine makes clear that a case "holds"with authority only so much of what the opinion says as is absolutely necessary to sustain the judgment. Anything else is unnecessary and "distinguishable" and noncontrolling for the future. Indeed, if the judgment rests on two, three or four rulings, any of them can be rightly and righteously knocked out, for the future, as being thus "unnecessary." Moreover, any …

Remarks On The Theory Of Appellate Decision And The Rules Or Canons About How Statutes Are To Be Construed, Karl N. Llewellyn

Vanderbilt Law Review

If a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense. If a statute is to be merged into a going system of law, moreover, the court must do the merging, and must in so doing take account of the policy of the statute-or else substitute its own version of such policy. Creative re- shaping of the net result is thus inevitable. But the policy of a statute is of two wholly different kinds-each kind somewhat limited in effect by …

Statutory Construction In Resolving Conflicts Between State And Local Legislation, Charles S. Rhyne

Vanderbilt Law Review

My contribution to this symposium will consist of the advancement of one main thesis and four subordinate and supporting ones. My main thesis is simple indeed. Procedural rules must be viewed as grants or creations of judicial power. My subordinate theses then indicate certain complications showing that in practice the matter cannot be thus wholly disposed of. Though too much reform has so assumed, it turns out that telling a court it has power does not guarantee exercise of that power. Judicial inertia, prece- dent-mindedness, love of technical niceties-all play their part in halting procedural improvement. So does, even more, …

The Position Of Statutory Construction In Present Day Law Practice, John W. Macdonald

Vanderbilt Law Review

Even the title assigned to this article emphasizes a point of view. We will consider the position of statutory construction not from the aspect of judges, appellate or trial, who must decide cases. Instead we are to look at the subject from the point of view of the practitioner, the lawyer himself. The practice of law is of course varied. And there are many fields of knowledge which control that practice. Some of these obviously do not involve law at all. The lawyer is a litigator, an advocate in court or before quasi-judicial bodies. He is also a counsellor, an …

Special Problems In Drafting And Interpreting Procedural Codes And Rules, Charles E. Clark

Vanderbilt Law Review

My contribution to this symposium will consist of the advancement of one main thesis and four subordinate and supporting ones. My main thesis is simple indeed. Procedural rules must be viewed as grants or creations of judicial power. My subordinate theses then indicate certain complications showing that in practice the matter cannot be thus wholly disposed of. Though too much reform has so assumed, it turns out that telling a court it has power does not guarantee exercise of that power. Judicial inertia, precedent-mindedness, love of technical niceties--all play their part in halting procedural improvement. So does, even more, a …

Statutory Construction In Resolving Conflicts Between State And Local Legislation, Charles S. Rhyme

Vanderbilt Law Review

As creatures of the states, our municipalities occupy a unique position in our governmental scheme. Not endowed with sovereignty, the municipality possesses no inherent powers, and can only do that which is authorized by the state.' The exercise of local powers, therefore, becomes the exercise of those powers which have been conferred upon it by state legislative action. Possible exceptions to this are those states in which "home rule" has been constitutionally conferred upon municipalities, by which authority to form local governments and to administer municipal affairs in the manner desired by the local electorate prevails. In view of the …

Some Statutory Construction Problems And Approaches In Criminal Law, James C. Quarles

Vanderbilt Law Review

Statutory construction and interpretation, important in every field of law, is vital in a field containing a large number of legislative acts and a considerable body of appellate court decisions construing them. For this reason alone, statutory construction problems are particularly significant in criminal law. Many American jurisdictions punish no activity other than that expressly declared criminal by statute.' The Federal Government, which of course punishes no crimes except those defined by Congress, has contributed to this growth of the criminal law through the imposition of many duties and the proscription of various activities relating to the collection of revenue, …