Law Commons^™

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 …

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 …

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 …

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. …

Defamation And The Right Of Privacy, John W. Wade

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 …

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.

Torts -- 1961 Tennessee Survey (Ii), John W. Wade

Vanderbilt Law Review

The twenty tort cases decided during the shorter survey period this year all involved negligence actions.' Most of the cases involved the application of established rules or standards to new fact situations, some of them being fairly routine. Only two cases were of striking significance.

Penology On Appeal: Appellate Review Of Legal But Excessive Sentences, Gerhard O.W. Mueller

Vanderbilt Law Review

Mr. Mueller traces the development of the technique of sentence appeals in relation to the evolution of penological theory and examines the practices of representative American jurisdictions in this area. In evaluating the status of the law, the author's reasoned judgment is that too few appellate courts have the power to review excessive sentences, and that even these courts do not exercise their power in terms of functional penology.

The Dilemma Of The Directed Acquittal, Richard H. Winningham

Vanderbilt Law Review

Some of the worst abuses of state criminal due process, the author believes, result from anachronistic and artificial restraints which prevent the trial judge from directing acquittals. Therefore,he advocates for all states a uniform policy and practice recognizing and authorizing directed acquittals where the evidence is legally insufficient to support a conviction.

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.

=================================

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 …

Constitutional Law -- 1961 Tennessee Survey (Ii), James C. Kirby, Jr.

Vanderbilt Law Review

Only three cases are assigned to this field for the abbreviated survey period and in one of these, the court avoided the constitutional question. In the other two cases the constitutional issues were not difficult and the results reached should cause neither surprise nor controversy among survey readers.

Equal Protection -- Racial Discrimination Home Rule--Self Executing Constitutional Provisions Miscellanous

Contracts -- 1961 Tennessee Survey (Ii), Paul J. Hartman

Vanderbilt Law Review

Statutes may impose a tax upon the transaction of certain business merely for the purpose of raising revenue, and not with any view of regulating the business itself. Even though such statutes impose a penalty for failure to comply with their provisions, contracts made without paying the requisite tax or obtaining the requisite license generally are not thereby made unenforceable. Of course, the legislature may provide that the failure to comply with a revenue statute will invalidate a bargain. But where, as in the Acuff case, the purpose of the statute is the protection of the public, a bargain made …

Domestic Relations -- 1961 Tennessee Survey (Ii), William J. Harbison

Vanderbilt Law Review

The definition of "abandonment" within the meaning of the Tennessee adoption statutes was clarified in the case of Ex parte Wolfenden. The stepmother of the subject child filed a petition for adoption, joined in and consented to by the natural father. A cross-petition was filed by the child's uncle and his wife, seeking to adopt the child and alleging that the natural father had abandoned the child and had delivered her to the home of the uncle for permanent rearing. The circuit judge granted the cross-petition upon the ground that adoption by the uncle was for the best interest of …

Workmen's Compensation -- 1961 Tennessee Survey (Ii), J. Gilmer Bowman, Jr.

Vanderbilt Law Review

Since the workmen's compensation statute was designed to provide benefits for an employee's work-connected injury or death, it necessarily follows that there must have been an employment relationship within the coverage of the statute and that the person or persons claiming the benefits must be within the class entitled to do so. The application of this basic premise, which on its face appears simple enough, was involved in three cases before the Tennessee Supreme Court during the survey period.

Bowling v. Whitley was a workmen's compensation suit brought by an employee against his immediate employer, a subcontractor, as well as …

Procedure And Evidence -- 1961 Tennessee Survey (Ii), Edmund M. Morgan, Joel F. Handler

Vanderbilt Law Review

Construction of Pleading--(a) Conclusions.- In an action by the administratrix of a decedents estate the allegations in the complaint that the intestate had a policy of insurance on his life for $1,500 and was induced by the fraud of defendant to make defendant the beneficiary by which she was able to collect the money upon his death and "that this $1500 insurance money is the property of the estate and defendant is accountable to complainant as administratrix of the estate" are sufficient as against ademurrer on the ground that the complaint fails to show any right or title in complainant …

Some Reflections On Baker V. Carr, Nicholas Deb. Katzenbach

Vanderbilt Law Review

This article is based on the author's address before the Vanderbilt University School of Law in connection with the school's 1962 Law Day ceremonies. In it, Mr. Katzenbach examines the positions of the various opinions in Baker v. Carr, the significance of the case both for Tennessee and the country as a whole, and the various alternatives open to the district courts for implementing the decision.

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 …

The Companion Of The New Hampshire Doctrine Of Criminal Insanity, John Reid

Vanderbilt Law Review

The problem of criminal responsibility is one of the most difficult in criminal law. Of the various solutions that have been devised, the author suggests that the New Hampshire-Scottish approach--with its emphasis on insanity as a question of fact for the jury--is the most desirable.

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 …

Insurance -- 1961 Tennessee Survey (Ii), Robert N. Covington

Vanderbilt Law Review

The Tennessee decisions in the field of insurance law during the survey period dealt almost exclusively with problems that may be characterized as the selection and control of risks. The importance of the principles used in the solution of these problems is obvious. Only by being able to select carefully those risks for which insurance will be offered can the insurer properly determine the premium that is to be charged. If policy language is interpreted to grant broader coverage than that actually intended, then the insurance fund is subjected to greater potential loss than estimated,so that the insurer's profits will …

Decedents' Estates, Trusts And Future Interests -- 1961 Tennessee Survey (Ii), Herman L. Trautman

Vanderbilt Law Review

The developments in these areas of Tennessee law during the first part of the year 1961 have been discussed heretofore in a recently published article.' In order to accommodate the transition from a fiscal year to a calendar coverage, however, this article will be limited to those appellate court opinions published after May 31 and not later than December 31,1961. During this period the General Assembly of Tennessee was not in session.

Creditors' Rights And Security Transactions -- 1961 Tennessee Survey (Ii), Forrest W. Lacey

Vanderbilt Law Review

During the period under survey there were few cases dealing with creditors' rights or security transactions. One of these, Cannon Mills, Inc.v. Spivey,' presented the question of whether the mere filing of a bill to subject the property of an insolvent debtor for the benefit of creditors created a lien lis pendens, or whether registration of the lien was necessary before it became effective. The facts were as follows. A judgment creditor with a nulla bona return filed a general creditors' bill on October 18, to subject the property of an insolvent debtor for the benefit of all his creditors. …

Conflict Of Laws -- 1961 Tennessee Survey (Ii), Elliott E. Cheatham

Vanderbilt Law Review

Jurisdiction of courts over foreign corporations is a developing subject. Almost all aspects of it are touched on by decision or discussion in two cases in different courts and under different statutes; one case was in the Supreme Court of Tennessee, the other in the United States district court.

=================================

Tucker v. International Salt Co. was an action in a state court in contract and quasi-contract against a Pennsylvania corporation.

=================================

Shuler v. Wood was an action in tort in the United States District Court for the Eastern District of Tennessee against two Pennsylvania corporations.

Business Associations -- 1961 Tennessee Survey (Ii), Kenneth L. Roberts

Vanderbilt Law Review

I. REVOCATION OF CHARTER OF GENERAL WELFARE CORPORATION

In the much-publicized case of Highlander Folk School v. State ex rel.Sloan, the supreme court upheld the revocation of the charter and dissolution of a general welfare corporation.

===============================

II. Foreign Corporation--"Doing Business" Service of Process

The cases of Tucker v. International Salt Co.," decided by the Tennessee Supreme Court, and Shuler v. Wood,' decided by Judge Taylor of the Federal District Court for the Eastern District of Tennessee, dealt with interesting and diverse questions of "doing business" by foreign corporations as relating to service of process. These cases are fully discussed …

Annual Survey Of Tennessee Law, Law Review Staff

Vanderbilt Law Review

This is the tenth Annual Survey of Tennessee Law to be published by the Vanderbilt Law Review. During the past ten years, the response to such issues from the members of the Bar has been gratifying to all those connected with the project. Many attorneys have told us that these issues have proved valuable to them both as a means of keeping up to date on recent developments in the law of this state and as a source of research guidance. We have been particularly pleased to see a number of articles from these issues cited by the courts of …

Criminal Law And Procedure -- 1961 Tennessee Survey (Ii), Robert E. Kendrick

Vanderbilt Law Review

In reviewing Cowan v.State, the Tennessee Supreme Court noted the following facts: Defendant, seeing an automobile stop at an isolated spot on a so-called "lovers' lane," approached it by way of a woods, being unseen by the two teen-age couples in the automobile until he was quite nearby. The occupants' attempt to drive away was thwarted by the defendant's exhibiting and threatening to use a pistol, warning against further escape attempts, and demanding and receiving the ignition key. He then insisted that the girls have sexual intercourse with him; and when they refused, he stated that he would not "take …

Book Reviews, Law Review Staff

Vanderbilt Law Review

Decision at Law

By David W. Peck.

New York: Dodd, Mead & Co.,1961. Pp. vii, 303.

==============================

Corporation Lawyer: Saint or Sinner? By Beryl Harold Levy.

Philadelphia and New York: Chilton Co., 1961. Pp. x, 175.

reviewer: Elliott E. Cheatham

================================

Criminal Psychology Edited by Richard W. Nice. New York: Philosophical Library, Inc., 1962. Pp. 284.

reviewer: J. Paschall Davis

=================================

Symposium on the Labor-Management Reporting and Disclosure Act of 1959 Edited by Ralph Slovenko. Baton Rouge: Claitor's Bookstore, 1961. Pp. xliv, 1237. $20.00.

reviewer: Robert N. Covington

==================================

Handling Accident Cases, Vol. 3

By Albert Averbach.

Rochester: The Lawyers …

Baker V. Carr -- Malapportionment In State Governments Becomes A Federal Constitutional Issue, William M. Hames

Vanderbilt Law Review

The Court's decision in Baker v. Carr was properly cast in terms of protecting individual rights under the equal protection clause, for this issue can be distinguished and separately handled. It does seem inevitable, however, that the decisions which set standards by which to determine invidious discrimination will also by these standards delineate, at least in broad outline, one aspect of what will be considered an acceptable "republican" form of government guaranteed by the Constitution.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administrative Law--Due Process--Expulsion From Public University Requires Notice and Hearing

=============================

Antitrust Law--Investigatory Powers--Federal Trade Commission Has Right To Obtain Private Copies Of Privileged Census Information

=============================

Constitutional Law--Due Process-Escheat By One State of a Fund Claimed By Other States Held To Violate Due Process

=============================

Sales--Warranty--Advertisement That Cigarettes Are Harmless Held An Express Warranty

=============================

Taxation--Income Tax-Deferral Of Prepaid Income Disallowed

=============================

Taxation--Inheritance, Estate and Gift Taxes--Blockage Rule Rejected in Evaluating Stock For Ohio Succession Tax

=============================

Taxation--Use Tax--Commerce and Equal Protection Clauses--Discrimination Against Multi-State Business

=============================

Torts--Negligence--Vendor of Alcoholic Beverages Held Liable for Injuries to Intoxicated Vendee Despite …

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 …