Law Commons^™

Lunar Reflections -- On The Jessup Cup, M. Elizabeth Culbreth

Vanderbilt Journal of Transnational Law

A hit from some years ago -- "The moon belongs to every-one" -- came to have special significance for a group of Vanderbilt Law students during the spring of 1967. For the members of the Vanderbilt International Moot Court Team under the guidance of their faculty advisor, Professor Harold Maier, researching, understanding and articulating the international legal arguments on both sides of that musical thesis became the sport of the day. Happily, their endeavors were rewarded on April 29, when Vanderbilt won the National Championship by defeating the team from Harvard Law School in the final round of the fifth …

From The Reviews, Journal Staff

Vanderbilt Journal of Transnational Law

From the Reviews

bibliography of writings on international law:

World Military Confrontations / Law, Policy and War / Law and the Maintenance of Peace

International Trade and Finance

European Economic Community

International Organizations

Conflicts

Private International Law

Book Reviews, Josef Rysan, L. G., G. C., R. P. B., W. E. W.

Vanderbilt Journal of Transnational Law

THE FUTURE OF GERMANY

It is significant that the most brilliant and penetrating analysis of the West German democracy comes from the pen of the leading German philosopher, Karl Jaspers. This fact demonstrates that German philosophy which used to be exclusively an "ivory tower" affair has finally come to grips with contemporary social problems. The English edition contains not only the translation of Jaspers' German bestseller, but also of the philosopher's just published "Answer to My Critics."

reviewer: Josef Rysan

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THE ENGLISH

by David Frost and Antony Jay

255 pages Stein and Day, New York, 1968.

reviewer: L.G.

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Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Federal Criminal Code Protects Rights Secured by Fourteenth Amendment

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Civil Rights--Removal--Strict Interpretation of Federal Removal Statute Affirmed

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Labor Law--Judicial Review of Arbitrator's Authority To Imply Contractual Condition

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Labor Relations--Federal Preemption of Defamation Suits Arising in Course of Organizational Campaign

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State and Local Taxation--Economic Exploitation Sufficient Connection To Require Non-Resident Seller To Collect Use Tax

Legislation, Law Review Staff

Vanderbilt Law Review

In United States v. Philadelphia Nat'l Bank,' the Supreme Court enjoined a proposed merger of the second and third largest commercial banks in Philadelphia. The Court held, inter alia, that section 7 of the Clayton Act 2 applied to bank mergers, and that the merger in question might substantially lessen competition. Central to the reasoning of the majority was the premise that an unchecked trend toward concentration of market power in commercial banking is contrary to the public interest in maintaining competition among existing commercial banks. Since commercial banking had traditionally been considered exempt from section 7 prosecution, the cry …

Discharge In The "Law" Of Arbitration, Roland P. Wilder Jr.

Vanderbilt Law Review

The vast majority of arbitrators will refuse to find just cause unless the discharge penalty bears some reasonable relation to the seriousness of the grievant's offense. They believe it to be their responsibility to determine whether the "punishment fits the crime" by realistically appraising the wrongful act's deleterious effects on the industrial community. If the grievant's proven offense appears to merit discipline short of discharge, the arbitrator usually will feel compelled to modify the discharge penalty in favor of some lesser degree of discipline. Since this amounts to a review of the penalty imposed by management, there is a substantial …

Class Gifts Of Future Interests: When Is Survival Required?, Herman L. Trautman

Vanderbilt Law Review

Because of recent significant developments, this article will under-take to deal with the requirement of survival in class gifts of future interests both with respect to the responsibility of a lawyer who plans an estate and with the problem confronting the courts in the many cases where either holographic wills are allowed or lawyers fail to discharge their professional responsibility concerning this litigious issue. By way of introduction, it will first stress the importance of a proper training for professional responsibility in this area. It will then attempt to provide a proper perspective for the courts to deal with the …

The United States Congress And Internal Reform, Robert F. Sittig

Vanderbilt Law Review

It has now been twenty years since the United States altered its internal machinery in a comprehensive attempt at modernization. Its willingness, in 1946, to adopt most of the changes suggested by a congressional study committee indicated the timeliness of that reorganization. The basic areas changed were: standing committees (size,jurisdiction, membership and operating procedures); regulation of lobby groups; coordination and supervision of fiscal affairs; and the bringing of professional research staffs to Congress. Most of these modifications were quickly implemented after passage of the act.' Of those given a trial, many met the test of time and have become a …

Trespassing Children: A Study In Expanding Liability, R. Neal Batson

Vanderbilt Law Review

When confronted with a case involving a child plaintiff, attorneys and the courts should recognize that the doctrine of attractive nuisance is only one of several theories on which the plaintiff may proceed against a landowner. The status of a plaintiff should first be determined. If the child is a trespasser, then either the constant trespasser theory, the known trespasser theory, or the doctrine of attractive nuisance may be applicable. It is possible, however, that the court may reject any one or all of these theories and decide the particular case under the general negligence principles of foreseeability of harm …

Book Reviews, Henry N. Wieman, Jerome Hall

Vanderbilt Law Review

The problem discussed by Professor Stumpf in his book Morality and the Law can be summarized by these questions: Do we have two kinds of prescribed conduct, one prescribed by morality independent of the government, the other prescribed by government independent of morality? Or is prescription by government necessarily moral because government is necessarily moral by reason of being the government? If not, under what conditions, if any, does prescription by government become a moral prescription? Under what conditions, if any, is government, by law, a matter of expedience, not to be confused with morality?

reviewer: Henry Nelson Wieman

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Miranda--Some History, Some Observations, And Some Questions, Karl P. Warden

Vanderbilt Law Review

At this writing Miranda v. Arizona' is less than four months old. Although its place in the annals of leading constitutional decisions is assured, its meaning for, and influence upon, the criminal law process in the United States is not at all certain. It will require years of data accumulation and analysis to determine how profound an effect it will have and to evaluate that effect in terms of social impact. It is too soon to know whether the Miranda case has started a new revolution in the administration of criminal justice or has merely ended an old one. Is …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Conspiracy To Eliminate Discounters From Automobile Market a Per Se Violation of Sherman Act

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Antitrust Law--Merger of Two Major Competitors in Industry with History of Concentration Violates Section 7 of Clayton Act

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Criminal Law--Future Confessions Will Be Inadmissible Unless Specified Pre-trial Procedures Are Followed

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Juvenile Courts--Juvenile Delinquent Entitled to Hearing On Question of Waiver of Jurisdiction

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Labor Law--Public Carrier Can Make Unnegotiated Unilateral Changes in Collective Agreements When "Reasonably Necessary" To Maintain Service

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Labor Law--In Future NLRB Elections, Employer Must Furnish List of Employees' Names and Addresses

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Taxation--Thin Incorporation Not Tantamount to Disqualification …

The Plaintiff In Default, Richard H. Lee

Vanderbilt Law Review

This article is concerned with one basic fact pattern. A party to a contract has commenced performance but has stopped short of completion. His failure to perform further is legally inexcusable. The other party has not performed, but is not in default. Can the one in default salvage anything from the wreckage of the contract when he himself "cast it on the rocks"? Can he recover the value of his part performance despite the fact that he refused to abide by his contract? The answer most commonly given by the courts is a righteous no.' But there are many factors …

Restitution In England, R. H. Maudsley

Vanderbilt Law Review

So long as a constructive trust will be imposed whenever it is necessary to prevent unjust enrichment, the terminological question is unimportant. If a situation requires a trustee's duties to be imposed upon a constructive trustee, the English court will do that. It may be that this will be a trust which the "beneficiary" can terminate by demanding the property and in that situation the two views of the constructive trust coalesce. If the problem is one of tracing it into a mixed fund by claiming a proportionate share of the fund or of the property purchased with it, then …

Real Property Depreciation Recapture: An Ineffectual Reform Of The Tax Laws, Charles S. Franklin

Vanderbilt Law Review

This note stems from a belief that an asymmetrical body of tax laws is a challenge to the legal profession which, by training, experience and tradition, is well situated to spur and guide reform. It is my intention to outline the story of but one section of the Internal Revenue Code: why it was proposed, what it sought to do, how it underwent modification by an unsympathetic congressional committee, and how it was finally enacted as a superficial compromise with the underlying asymmetry of our tax laws. In short, what follows is an appended bar in the organ theme entitled …

Forward: A Symposium On Restitution, John P. Dawson

Vanderbilt Law Review

The editors of the Vanderbilt Law Review deserve praise for arranging this symposium on the neglected subject of Restitution, a great and growing area of our private law whose literature is extra-ordinarily meager. Partly because of this neglect by legal scholars,the practicing profession as a whole remains unaware of the range and variety of restitutionary remedies and the possibilities they offer for solving problems that are otherwise intractable. The volume of restitution cases reported in current advance sheets shows that courts and lawyers are learning to make use of restitution remedies, but the subject still inspires hesitation and diffidence, for …

The English Constructive Trust:A Look Into The Future, D. W.M. Waters

Vanderbilt Law Review

In view of the history of the common law and of equity, a history shared by all common law jurisdictions, it would be nonsense to say that English law does not offer the deprived plaintiff relief. Of course, it does. What we have not been willing to do, however, is to rationalise the miscellany of remedies that exist. And, since we have not been prepared to rationalise, there are inconsistencies be-tween and within remedies, and a marked lack of development, particularly on the equity side. This has long been the complaint of the English lawyers who, since Lord Wright's first …

Book Reviews, John W. Wade, Gray Thoran Professor, Ronald M. Maudsley Professor Of Law

Vanderbilt Law Review

THE LAW OF RESTITUTION

By Robert Goff and Gareth Jones

London:Sweet & Maxwell, 1966. Pp. xxix, 540.

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CASES AND MATERIALS ON RESTITUTION

Second Edition.

By John W.Wade Brooklyn

The Foundation Press, Inc., 1966. P. xl, 866. $12.00.

Restitution On Default And Article Two Of The Uniform Commercial Code, Robert J. Nordstrom

Vanderbilt Law Review

Article 2 of the Uniform Commercial Code, entitled Sales, contains an entire chapter (Part 7) devoted to remedies. This chapter reveals two basic philosophies. First, the draftsmen were concerned with developing a pattern of recovery following default by one of the parties, even though default is but one reason for the nonperformance of promises. Second, the remedies which are codified emphasize the expectation interest of the nondefaulting party and almost ignore any development of the restitution interest. This emphasis upon the expectation interest singles out only one judicial approach by which the economic interests of the parties can be readjusted …

Restitution For Benefits Conferred Without Request, John W. Wade

Vanderbilt Law Review

The principle is now fully recognized in this country that a "person who has been unjustly enriched at the expense of another is required to make restitution to the other." This is the language of the first section of the Restatement of Restitution.' When one person confers a benefit upon another without the latter's solicitation, the benefit received constitutes an enrichment--a windfall, so to speak. This benefit may take one of several forms. It may involve (1) transferring property to the defendant, (2) saving, preserving or improving his property, (3) rendering personal services for him, or (4) performing for him …

Private Legislation And The Duty To Read--Business Run By Ibm Machine, The Law Of Contracts And Credit Cards, Stewart Macaulay

Vanderbilt Law Review

"It will not do for a man to enter into a contract, and, when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained."' This rallying cry often is sounded in contracts and restitution opinions. Sometimes it makes such good sense that it is axiomatic. Yet in common with all grand slogans, there are situations where it just doesn't fit...

More difficult are the cases where the words are there in a form more easily read and understood but where the probabilities are very great …

Income Splitting As A Means Of Avoiding Taxes, Allen T. Malone

Vanderbilt Law Review

The purpose of this note is to examine the present tax treatment of the three most popular income splitting devices used to avoid taxes: the family partnership, multiple trusts, and multiple corporations. In Part II, the various congressional and judicial limits and sanctions imposed upon these devices will be discussed along with recently proposed regulatory legislation. Part III will consist of an evaluation of the suggested limitations upon the use of income splitting devices. The ultimate concern of this note is to arrive at some conclusions as to the general approach and the specific methods best suited (1) to regulate …

The Legislature's Power To Judge The Qualifications Of Its Members, Law Review Staff

Vanderbilt Law Review

Because federal and state constitutions require members of the legislative branch of the government to meet certain qualifications, the legal existence of a legislative body is dependent upon compliance with those constitutional requirements.' However, by express constitutional provisions, and by traditional legislative practice and usage, the legislature itself is deemed to be the final judge of the election and qualifications of its members. Section 5 of article I of the United States Constitution provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members ...." The constitutions of all the states contain provisions to …

Bankruptcy As An Occasion For Restitutionary Claims, William F. Young Jr.

Vanderbilt Law Review

Whether we are concerned with claims against the estate or with voidable transfers, it is essential to note that the Bankruptcy Act makes the filing of a bankruptcy petition a decisive event: a transaction occurring after the filing is likely to have consequences far different from what would have ensued if it had occurred before. The date of filing is, indeed, one of the very meanings of the word "bankruptcy" as it appears in the act. This point of distinction must be observed in each part of the discussion that follows. In the main, Part II concerns restitutionary principles in …

Legislation, Law Review Staff

Vanderbilt Law Review

Federal Diversity Jurisdiction--Citizenship for Unincorporated Associations

In 1889 the United States Supreme Court ruled in Chapman v.Barney' that a New York joint stock company was not to be considered a "citizen" for purposes of federal diversity jurisdiction. This decision provided the basis for the rule that unincorporated associations are not considered juridical persons, and that the citizenship of their individual members is determinative of federal diversity.

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Protecting the Client When His Lawyer Dies

The problems which arise when a practicing attorney suddenly diestake many shapes. Those which face the law firm are of both an ethical nature, involving the …

Legal Research--Computer Retrieval Of Statutory Law And Decisional Law, David T. Moody

Vanderbilt Law Review

Legal research presently involves a considerable amount of any lawyer's time and efforts largely because it is a slow and tedious process. Searching for a pertinent legal point can prove to be time-consuming and often fruitless. Moreover, it is here that chance plays one of its largest roles in the law.' An important legal point may exist,yet the researcher may fail to find it although he exercises a great degree of diligence. All lawyers must recognize this problem and the fact that it is becoming more acute with the passage of time. Something needs to be done to facilitate legal …

Book Reviews, Robert H. Birkby, Elliot E. Cheatham

Vanderbilt Law Review

Law and Politics in the Supreme Court By Martin Shapiro New York: Free Press of Glencoe, 1964. Pp. 333. $6.95.

reviewer: Robert H. Birkby

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Lives of the Lord Chancellors, 1885-1940 By R. F. V. Heuston Oxford: Clarendon Press, 1964, Pp. xxiii, 632.

reviewer: Elliot E. Cheatham

Civil Rights Crimes And The Federal Power To Punish Private Individuals For Interference With Federally Secured Rights, Howard M. Feuerstein

Vanderbilt Law Review

Participants in the current civil rights movement in the South have been subjected to countless acts of violence and intimidation committed by private individuals acting either on their own or as part of racist organizations. As a result of such acts of violence, new legislation has been introduced in Congress.' Yet, the federal system historically has placed strict limitations on the power of the national government to deal with the acts of private individuals. The time is therefore ripe for a re-examination of these limitations. In so doing,this article deals with acts of private individuals in the technical sense of …

Values As Variables In Judicial Decision-Making: Notes Toward A Theory, David I. Danelski

Vanderbilt Law Review

The concept of values is central to the explanation of judicial decision-making. Indeed, Clark L. Hull has gone so far as to say that any fairly detailed and sound dynamic theory of behavior must contain an empirical theory of values. Although students of judicial behavior have used values, or some equivalent concept, in their studies, there has been as yet no thorough, systematic exploration of values with a view toward using it as the central concept in building an empirical theory of judicial decision-making. This paper is a modest step in that direction. It is not, however, a presentation of …

Nondiscrimination Implications Of Federal Involvement In Housing, Jerome B. Ullman

Vanderbilt Law Review

Government enforcement of equal opportunity in all housing, or in all housing connected with the various federal programs discussed in this note, would virtually eliminate the present fear among many whites that the presence of Negroes in the community hurts property values. Even if there were any basis to such a fear, the fact that Negroes had an easily enforceable right to purchase property in all neighborhoods would tend to prevent such price devaluation since the actual presence of Negroes in more and more areas would eventually make all white neighborhoods non-existent. Moreover,the fact that all, or the vast majority …