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Charles Evans Hughes: An Appeal To The Bar Of History, Alpheus T. Mason Dec 1952

Charles Evans Hughes: An Appeal To The Bar Of History, Alpheus T. Mason

Vanderbilt Law Review

Preparations for this Pulitzer prize-winning biography began in 1932 when a Princeton University undergraduate, Henry C. Beerits, took Hughes' public career as the topic of his senior thesis. On the suggestion of friends and instructors Beerits sent his sympathetic, uncritical essay to the Chief Justice. Evidently much pleased, Hughes promptly invited the youthful author to Washington, where he spent nearly a year arranging the Justice's public papers. Many sessions were spent together; the Chief Justice reminisced at great length, all this being noted down and turned over to Mr. Pusey. After retirement in 1941 the Chief Justice wrote "several hundred …


Unconvicting The Innocent, Richard C. Donnelly Dec 1952

Unconvicting The Innocent, Richard C. Donnelly

Vanderbilt Law Review

"Innocent Man is Unable to Clear Record after 7 1/2 Years in Prison. Under this headline, the New York Times recently reported the courthouse tragedy of Nathan Kaplan, 49-year-old salesman.' Mr. Kaplan's brush with the law began on September 28, 1937, when the Federal Government indicted him under the name of Nathan Kaplan, alias "Kitty," for the sale of heroin to a government undercover agent. Although he vigorously proclaimed his innocence from the day of his arrest, he did not take the witness stand at his trial. He was represented by able counsel and other due process requirements were fully …


Congress Or The Courts As Final Arbiter In Tax Disputes?, William J. Bowe Dec 1952

Congress Or The Courts As Final Arbiter In Tax Disputes?, William J. Bowe

Vanderbilt Law Review

During the last two years the Supreme Court of the United States has handed down only five income tax opinions. The box score stands four for the Government, one for the taxpayer. None of the cases involved modifications in fundamental concepts of tax law or resulted in major policy changes in the administration of the fiscal system. The record for the taxpayer is far more impressive in the Congress than it is in the courts. As will be pointed out later Congress rather than the Supreme Court is tending to become the final arbiter in tax disputes. Problems that were …


Recent Cases, Law Review Staff Dec 1952

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Agency--Liability of Master for Servant's Acts--State Permit to Operate

Agency--Possession as Indicia of Ownership

Constitutional Law--Aliens--Detention Where Deportations is Impossible

Courts--Contempt--Delay in Summary Punishment

Criminal Law--Habitual Criminal Statutes--Meaning of Previous Conviction Requirement

Domestic Relations--Liability of Husband for Necessaries of Wife Rightfully Living Apart

Income Taxation--Excludibility from Gross Income of Payment over Ceiling Price

Income Taxation--Taxable Income--Claim of Right

Procedure--Grand Jury--Motion to Expunge Defamatory Remarks in Report

Procedure--Statute of Limitations--Retroactive Operation

Statutes--Holding of Unconstitutionality Overruled--Necessity for Re-Enactment

Wills--Contest--Interest of Legatee's Representative


Book Reviews, Ralph F. Fuchs, Will A. Wilkerson, Walter C. Lindley, Robert S. Lancaster, Vincent V. Thursby Dec 1952

Book Reviews, Ralph F. Fuchs, Will A. Wilkerson, Walter C. Lindley, Robert S. Lancaster, Vincent V. Thursby

Vanderbilt Law Review

Administrative Procedure Legislation in the State

By Ferrell Heady

Ann Arbor: University of Michigan Press, 1952. Pp. 137. $1.00.

reviewer: Ralph F. Fuchs

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Bar Examinations and Requirements for Admission to the Bar Prepared by Committee on Bar Examinations and Requirements for Admission to the Bar for the Survey of the Legal Profession

Colorado Springs: Shepard's Citations. 1952. Pp. xvii, 498. $5.00.

reviewer: Will Allen Wilkerson

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Trial Judge

By Bernard Botein

New York: Simon and Schuster, 1952.Pp. 337 $5.00.

reviewer: Walter C. Lindley

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The Spirit of Liberty: Papers and Addresses of Learned Hand Collected and with Introduction and …


The Moral Element In Supreme Court Decisions, Samuel E. Stumpf Dec 1952

The Moral Element In Supreme Court Decisions, Samuel E. Stumpf

Vanderbilt Law Review

Does the United States Supreme Court decide cases on the basis of moral and ethical value judgments? Such a question may reveal a misunderstanding of the nature of law as well as the nature of the judicial process. Moreover, to expect the Court to roam in the field of morals may indicate a failure to take into account the limitations placed upon the Court both by our federal system and by the division of powers. Indeed, a reading of the Supreme Court decisions for the past twenty years reveals a manful resistance on the part of the judges to intrude …


Paths To Constitutional Home Rule For Municipalities, Wallace Mendelson Dec 1952

Paths To Constitutional Home Rule For Municipalities, Wallace Mendelson

Vanderbilt Law Review

A basic American tradition is that problems which are national in scope (i.e., which "affect more states than one") shall be handled by the national government, while problems of merely state-wide concern are left for state government. Municipal home rule is the application of this basic principal in the relationship of the state to its towns and cities. To put the matter in the most simple and direct terms--nothing should be done at the national level that can be done efficiently by the states and nothing should be handled at the state level that can be dealt with effectively by …


The Federal Declaratory Remedy: Justiciability, Jurisdiction And Related Problems, George W. Pugh Dec 1952

The Federal Declaratory Remedy: Justiciability, Jurisdiction And Related Problems, George W. Pugh

Vanderbilt Law Review

Procedure represents the body of doctrinal rules which prescribe the etiquette of counsel and courts. It deals with the means, not the ends of litigation, and in a purely theoretical sense, it may be set apart from the so-called "substantive rights" which give procedure its life and meaning. But, of course, from a practical standpoint, the two are inseparable. Since procedure exists solely to complement and implement the "rights" afforded by law, it might appear that the body of procedural doctrine would be but a compendium of pragmatically proved efficient conduct. The articulate law student can provide ample evidence to …


The Admissibility Of Evidence Procured By Illegal Search: Scotland, Zelman Cowen Jun 1952

The Admissibility Of Evidence Procured By Illegal Search: Scotland, Zelman Cowen

Vanderbilt Law Review

The question whether illegality in the means of procuring evidence is a bar to its admissibility has received little consideration in the English authorities. There is little authority in the reports, while most text-writers do not deal with the problem at all. Halsbury, who considers it briefly, states a rule that if property or documents have been wrongfully seized, the seizures will be excused if they are in fact material evidence of a crime committed by any person." The principal authority cited in support is Elias v. Pasmore. Archbold states a similar rule, but Phipson, who twice cites Elias v. …


Particularizing Standards Of Conduct In Negligence Trials, James Fleming Jr., David K. Sigerson Jun 1952

Particularizing Standards Of Conduct In Negligence Trials, James Fleming Jr., David K. Sigerson

Vanderbilt Law Review

The general principles to be applied by court or jury in deciding whether conduct is reasonable have been examined elsewhere.' The problem to be dealt with here concerns the specific application of the law's standard of conduct to concrete cases. How, that is, may it be shown what a party or his opponent should have done, in the way of taking precautions or the like, in the situation presented by the evidence? What kinds of proof or argument are available to make this showing? When must such a showing be made by proof? Is the jury or court to determine …


Delinquent Parents And The Criminal Law, Frederick J. Ludwig Jun 1952

Delinquent Parents And The Criminal Law, Frederick J. Ludwig

Vanderbilt Law Review

"There are no delinquent children; there are only delinquent parents." This tautological truism has long been the speaker's mainstay at Rotary luncheons, parent-teacher meetings, and assorted roundtables and institutes on juvenile delinquency. When a New York Children's Court judge undertook to put the principle into practice five years ago, a storm of controversy was unleashed which has not yet subsided. The case, tragic enough, involved 14-year-old Frankie, who scored hits on three passers-by with a stolen gun. The boy, who had been sleeping in hallways and on buses, was committed as a juvenile delinquent to a state training school. His …


The Role Of The Privy Council In Judicial Review Of The Canadian Constitution--A Post-Script, Edward Mcwhinney Jun 1952

The Role Of The Privy Council In Judicial Review Of The Canadian Constitution--A Post-Script, Edward Mcwhinney

Vanderbilt Law Review

In its Preamble, the Constitution of Canada speaks of the desire of the Provinces of Canada to be "federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom." Historically, then, the Constitution of Canada like the Constitution of the United States, stems from a compact between a number of different territorial units: the Provinces of Lower Canada (Quebec), Upper Canada (Ontario), and the two eastern maritime Provinces of Nova Scotia and New Brtnswick, joined together in 1867 to form the new …


Tax Planning For Nontaxable Estates, William J. Bowe Jun 1952

Tax Planning For Nontaxable Estates, William J. Bowe

Vanderbilt Law Review

Owners of modest estates are always greatly relieved to learn of the liberal federal estate tax exemption of $60,000. Freed from the burden of federal estate tax planning they frequently turn their attention to methods of transferring property which will avoid the heavy cost and delay incident to probate administration. Joint ownership, gifts of remainder interests, donee-beneficiary contracts, revocable trusts are among the more common devices available. Use of any one of these plans may accomplish a shift in possession and enjoyment of property upon the death of the planner with no delay and minimum expense.

But the income tax …


The Law Of Burial Insurance, Charles T. Cady Jun 1952

The Law Of Burial Insurance, Charles T. Cady

Vanderbilt Law Review

Burial insurance, used in the sense of a risk-shifting device to aid the less fortunate, has existed in the form of friendly societies from time immemorial. Indeed, it is probable that this noncommercial type was the first form of insurance. There is some evidence that such societies existed in Egypt, 2500 B.C. There exists more concrete evidence that they thrived in ancient China, India, Greece and Rome. The Grecian societies, although largely religious and ritualistic, had as their main function the guarantee of a decent burial for their members. The existence around A.D. 117-138 of Roman societies, called collegia, is …


Rights Of Creditors In Insurance -- The Tennessee Exemption Statutes, Paul J. Hartman Jun 1952

Rights Of Creditors In Insurance -- The Tennessee Exemption Statutes, Paul J. Hartman

Vanderbilt Law Review

The subject of the availability of assets to creditors is important when a trustee in bankruptcy as a representative of creditors is seeking to gather assets to pay off creditors; and the subject is of equal importance where a single creditor, not in a bankruptcy proceeding, is seeking to satisfy his claim out of the assets of his debtor. Whatever is property in the hands of the debtor is available to his creditors, unless it is exempt by law. This property is his estate, considered indifferently from the standpoint of the single creditor who seeks to realize for himself alone, …


Book Reviews, Hugh L. Sowards (Reviewer), Stanley D. Rose (Reviewer), William D. Warren (Reviewer) Jun 1952

Book Reviews, Hugh L. Sowards (Reviewer), Stanley D. Rose (Reviewer), William D. Warren (Reviewer)

Vanderbilt Law Review

Securities Legislation

By Louis Loss

Boston: Little, Brown & Com-pany, 1951. Pp. xxvii, 1283. $17.50

reviewer: Hugh L. Sowards

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Private Property, the History of an Idea

By Richard Schlatter

New Brunswick: Rutgers University Press, 1951. Pp. 284. $2.50

reviewer: Stanley D. Rose

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Oil and Gas Law: Collection of articles

TEXAS LAW REVIEW

Austin: Texas Law Review, Inc., 1951. Pp. xix, 1736. $15.00

reviewer: William D. Warren


County Home Rule In Tennessee, Henry N. Williams Jun 1952

County Home Rule In Tennessee, Henry N. Williams

Vanderbilt Law Review

The present Tennessee Constitution as interpreted by the courts permits the legislature to grant to the governing boards of counties a considerable amount of power to determine and regulate matters which are of local concern. There is no reason to doubt that the legislature could authorize county governing boards great freedom in determining the form and organization of county government. Thus the General Assembly could go far in establishing county home rule in Tennessee.

The chief difficulty in relying on the General Assembly's granting considerable authority under the existing constitutional provision to the governing boards of the counties to determine …


Recent Cases, Law Review Staff Jun 1952

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Adverse Possession--Statutes--May One Acquire an Indefeasible Life Estate under Tennessee Code Section 8582

Constitutional Law--Freedom of the Press--Effect of City Ordinance Prohibiting Solicitation of Magazine Subscriptions without Prior Consent of Person Solicited

Constitutional Law--Statutes--Requirement of Loyalty Oath as Valid Exercise of Police Power

Contracts--Procurement of Government Contracts on Contingent Fee Basis--Effect of Executive Order

Criminal Law--Mens Rea--Requirement in Action for Converting Government Property--Necessity for Criminal Intent

Damages--Injury to Child--Expenses of Parent in Attending Child

Divorce--Determination of Place Where Abandonment Occurs--Effect of Residence Requirement for Bringing Action

Domestic Relations--Legitimation Statute--Interpretation and Effect

Evidence--Unreasonable Searches and Seizures--Admissibility of Evidence Obtained …


The Clear And Present Danger Test--A Reply To Mr. Meiklejohn, Wallace Mendelson Jun 1952

The Clear And Present Danger Test--A Reply To Mr. Meiklejohn, Wallace Mendelson

Vanderbilt Law Review

As educator and philosopher Alexander Meiklejohn has won a lion's share of the honors of his profession. Few have seen so clearly, or done more to enrich, the meaning of America. When in a provoking little volume' that appeared in 1948, Mr. Meiklejohn examined the meaning of democracy and free speech and found that Mr. Justice Holmes' clear and present danger test was incompatible with both, he obviously struck fire. His theme was that when men govern themselves it is they and not government who must judge as to the wisdom, fairness and danger of ideas. This means that unwise, …


Evidence As A Problem In Communicating, Edward W. Cleary Apr 1952

Evidence As A Problem In Communicating, Edward W. Cleary

Vanderbilt Law Review

The law of evidence is sagging to the point of collapse under its own weight. It has cracked visibly in the administrative sphere, and what saves it in the courts is probably a rather general ignorance of what is actually between the covers of Wigmore, plus the fact that lawyers and judges often seem to be downright ashamed to push the rules to their logical extremes. Evidence in action is, happily perhaps, somewhat different from evidence in books. Nevertheless, among people who are thoughtful about such things there is general agreement that something ought to be done.


A Symposium On Evidence -- Foreward, Orie L. Phillips Apr 1952

A Symposium On Evidence -- Foreward, Orie L. Phillips

Vanderbilt Law Review

This is the fifth in a series of symposia published by the Vanderbilt Law Review on important legal subjects. This symposium covers a number of selected subjects in the field of Evidence. The privilege accorded me of writing this foreword affords me the opportunity to express my sincere appreciation of this excellent symposium and the confident hope that it will be most helpful to students, judges and practicing lawyers.

The term "Evidence" imports the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.' It embraces the rules of law …


Judicial Notice, Charles T. Mccormick Apr 1952

Judicial Notice, Charles T. Mccormick

Vanderbilt Law Review

The traditional Anglo-American system of proof demands rigorous guaranties of accuracy, with its requirement of witnesses having first-hand knowledge, its mistrust of hearsay, however reliable, except for narrow exceptions, and its insistence upon original documents and their authentication by witnesses. These requirements have their roots in the contentious or adversary system, where the party and not the judge is responsible for gathering and presenting facts, and in the method of jury trial. But this strict though scientific insistence upon proving everything at first hand is, like jury-trial itself, enormously costly in time, energy and money. The principal effect of the …


Logical Or Legal Relevancy -- A Conflict In Theory, Herman L. Trautman Apr 1952

Logical Or Legal Relevancy -- A Conflict In Theory, Herman L. Trautman

Vanderbilt Law Review

Is there a rational theory which serves as a basis for determining the admissibility of circumstantial evidence?

Circumstantial evidence involves the offer in evidence of Fact A for the purpose of having the trier of fact (jury, judge, administrative agency or arbitrator) first believe that Fact A is true, and from it infer the existence or truth of Fact B. Fact B may be one of the ultimate questions of factor propositions raised by the pleadings, or it may be a more remote fact or proposition which when established, again forms the basis for a further inference in the chain …


Expert Testimony, Mason Ladd Apr 1952

Expert Testimony, Mason Ladd

Vanderbilt Law Review

The opinion rule of exclusion and the use of expert testimony, like much of the law of evidence, developed out of the adversary system of trial. Not until the Eighteenth Century was the opinion rule established, and although the courts had used witnesses with special knowledge to assist them in obtaining needed information, expert witnesses were not used in the modern sense.' There were also inquisitorial hearings in which the inquisitors were all persons with specialized experience, but this was not similar to the use of experts today as the inquisitors determined the issue upon the basis of their own …


Presumptions In A One-Rule World, Alfred L. Gausewitz Apr 1952

Presumptions In A One-Rule World, Alfred L. Gausewitz

Vanderbilt Law Review

In the 54 years since Thayer wrote the first excerpt, an enormous amount of excellent scholarship has been devoted to presumptions. Yet confusion persists. It may not be presumptuous, therefore, to suggest some causes of confusion more radical than those mentioned by Professor Morgan in the second excerpt quoted above. This is not to say that he has not stated them. In fact he has painstakingly pointed out the fundamental difficulties in a number of articles written both before and after he became draftsman of the Model Code. As draftsman he has had to carry a burden of expounding it …


Requisite Proof Of Basis For Expert Opinion, John M. Maguire, Jefferson E. Hahesy Apr 1952

Requisite Proof Of Basis For Expert Opinion, John M. Maguire, Jefferson E. Hahesy

Vanderbilt Law Review

This article is about the factual foundation of expert opinion evidence. It is tentative, not dogmatic or even confident. It proposes for further consideration by others our effort at more precise shaping of doctrines which have become familiar but remained vague. These doctrines have to do with the degree of stringency which is and ought to be exercised in applying ordinary rules of evidential competency to proof of propositions of fact underlying or related to formulation and announcement of experts' opinions in litigated cases.


Some Developments In The Law Concerning Confessions, William Wicker Apr 1952

Some Developments In The Law Concerning Confessions, William Wicker

Vanderbilt Law Review

Our system of administering criminal laws is predicated upon accusatorial rather than inquisitorial proceedings. To maintain inviolate the safeguards consonant with this principle, we have placed upon the State an ever-increasing burden in proving the commission of the crime charged. That this burden has begun to weigh heavily, and perhaps onerously, becomes unmistakably evident from a study of recent developments in the law of confessions.


Real Proof I, Jerome Michael, Mortimer J. Adler Apr 1952

Real Proof I, Jerome Michael, Mortimer J. Adler

Vanderbilt Law Review

The trial of an issue of fact is an epistemic, a logical, and a legal affair. In its epistemic aspect it can be viewed as a process of learning: By means of the trial the jury acquires the knowledge which it must have in order to decide the issue. The analysis of this aspect of a trial is primarily concerned with the different kinds of knowledge and with the various ways in which knowledge is obtained. In its logical aspect the trial of an issue of fact can be viewed as a process of teaching: By their proof and disproof …


Declarations Against Interest, Edmund M. Morgan Apr 1952

Declarations Against Interest, Edmund M. Morgan

Vanderbilt Law Review

"Declarations of a person, whether verbal or written, as to facts relevant to the matter of inquiry, are admissible in evidence, even as between third parties, where it appears: (1) That the declarant is dead; (2) that the declaration was against his pecuniary or proprietary interest; (3) that he had competent knowledge of the fact declared; (4) that he had no probable motive to falsify the fact declared." This, Mr. Justice Walker of North Carolina in 1906 stated to be the established rule.' What is its origin; for what reason is the evidence held to be admissible; to what extent …


Self-Crimination Privilege: "Links In The Chain", Judson F. Falknor Apr 1952

Self-Crimination Privilege: "Links In The Chain", Judson F. Falknor

Vanderbilt Law Review

"According to their [the prosecution's] statement, a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of a crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony' which is necessary to convict any individual of a crime. It appears to the Court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself...What testimony may be possessed, or is attainable, against any individual, the Court can never know. It …