Law Commons^™

Some Bugaboos In Pre-Trial, Alfred P. Murrah

Vanderbilt Law Review

In view of all that has been written and said for pre-trial conference,' it seems rather superfluous, if not presumptuous, to undertake to add to or enlarge upon the subject. Indeed, it might be efficacious to heed Judge Clark's suggestion that the procedural cause would be better served "if something could be done to stop us judges ... from publishing what we say" about the Rules. But even at the risk of overstating the case, those who have enlisted for the duration' never forego an opportunity to strike a blow on the side of simplified procedure. Pre-trial practice has been …

Crosskey's Constitution: An Archeological Blueprint, Howard J. Graham

Vanderbilt Law Review

Could it be fortunate that so much of history is a closed, or at least a forbidden, book? Otherwise might we not squander our resources reliving and refighting the past? The present soon would be unendurable, the future an endless remarshalling yard for causes stretching back to antiquity.

If the first volumes of Professor Crosskey's study invite this somber opening reflection, it is not that his achievement is unimpressive. Here, undeniably, is a work in the great tradition of controversial writing. Few lawyers and certainly fewer historians--ever willingly have assumed greater burdens of proof. Yet fewer still have contrived a …

The Democracy Of Justice Oliver Wendell Holmes, Charles E. Wyzanski Jr.

Vanderbilt Law Review

Oliver Wendell Holmes is everywhere recognized as a great American. His life story has been depicted on the stage, fictionalized in a popular biography,' and majestically summarized in the Dictionary of American Biography by his successor and disciple. Every undergraduate knows of Holmes' wounds in three Civil War battles, his seminal lectures on The Common Law delivered at the Lowell Institute, his pioneer decisions in labor cases in the Supreme Judicial Court of Massachusetts and his long and distinguished tenure as Associate Justice of the Supreme Court of the United States. But the recital of his public offices does not …

Federal Income Taxes And The Civil Fraud Penalty, Raymond Whiteaker

Vanderbilt Law Review

The drive against tax evaders is now in full swing after a complete reorganization of the Internal Revenue Service, and the new Commissioner has promised an efficient enforcement of all revenue laws. Although the effective administration of the federal income tax rests primarily upon the willingness of the taxpayer voluntarily to disclose his correct income, Congress has provided certain civil and criminal penalties to punish those who have not fulfilled their obligations to the United States Treasury. This article will deal only with the administration and operation of the civil fraud penalty.

The most severe civil penalty that may be …

Book Reviews, James C. Evans, Samuel E. Stumpf

Vanderbilt Law Review

State Taxation of Interstate Commerce By Paul J. Hartman Buffalo: Dennis & Co., 1953. Pp. xi, 323. $7.50

reviewer: James Clarence Evans

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Church, State and Freedom By Leo Pfeffer Boston: The BeaconPress, 1953. Pp. xvi, 605. $10.00

reviewer: Samuel Enoch Stumpf

Taft-Hartley Sections 301 And 303 Procedural Aspects, Joseph F. Dirisio, Joseph Martin Jr.

Vanderbilt Law Review

The motives and purposes behind the binate Sections 301 and 303, no less than other sections of the Taft-Hartley Act,' are mixed and ambiguous. Foremost, however, seems the notion that Congress intended to create new federal rights, contract and tort, enforceable nationally in a federal forum. In broad terms, where the required relationship to interstate commerce exists, Section 301 permits suits by either employers or unions for violation of collective bargaining agreements; Section 303 permits those injured by certain boycotts and unlawful combinations to bring suit-- in both cases, the forum provided is the district court of the United States. …

Recent Cases, Law Review Staff

Vanderbilt Law Review

A Commentary on Recent Case Law --By Subject:

Constitutional Law--Due Process--Use in State Prosecution of Evidence obtained by Illegal Invasion of Privacy

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Constitutional Law--Unlawful Search and Seizure--Admissibility of Evidence for Impeachment Purposes

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Evidence--Radar Evidence of Speed--Coincidence of Radar and Speedometer Readings as Hearsay

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Federal Courts--State NonResident Motorist Statute--Waiver of Federal Venue Privilege

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Federal Jurisdiction--Diversity of Citizenship--Retroactive Effect of Amendments to Perfect Jurisdiction

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Income Taxation--Deductions--Periodic Alimony Payments

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Labor Law--Preemptive Effect of Taft-Hartley--Scope of State Jurisdiction

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Torts--Dog Bite--Owner's Scienter

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Workmen's Compensation--Accident Arising out of Employment--Pre-Existing Heart Disease

Jury Trial In Chancery Court In Tennessee, Frank C. Ingraham

Vanderbilt Law Review

Tennessee has since 1827 maintained, in some degree, a separate court of equity, presided over by a chancellor. Though most states have abolished the procedural distinction between cases in law and suits in equity, Tennessee still retains this dichotomy in its court system. Prior to 1827 law and equity were dispensed in Tennessee by a single court of general jurisdiction, the Superior Court of Law. This practice grew out of the North Carolina Act of 1782 and the continuation of that Act by the First Territorial Legislature in 1794, both of which gave equity jurisdiction to the Superior Court of …

Fiction Vs. Reality, In Re Contracts: A Survey, Merton Ferson

Vanderbilt Law Review

The history and philosophy of the law of contracts has more than academic interest. In some areas there are conflicts and uncertainties that stem from the history, nature and basis of contracts.

Primitive men were familiar with the idea of possession which later developed into the idea of ownership. And a person having possession or ownership has long been able to transfer whatever he had to another.'

But the idea of obligation was a later development in the advance of civilization. Obligations, as we know them at present, would have been incredible to primitive men. Do we fully realize even …

Falsification As Contempt, Stephen D. Potts

Vanderbilt Law Review

The last twenty years have been witness first to an expansion and then to a retrenchment of constitutionally protected civil liberties. The exercise of the contempt power is an area in which constitutional limitations on modes of procedure are inapplicable so long as the power is used to preserve the judiciary.'

Contempts are either direct or constructive. Direct contempts are committed in the presence of the court whereas constructive contempts are committed outside the presence of the court. This distinction is significant in that direct contempts are punishable without a formulated charge, hearing or formal judgment of guilt. Constructive contempts …

Dalehite V. United States: A New Approach To The Federal Tort Claims Act?, Massillon M. Heuser

Vanderbilt Law Review

The decision for the United States in "Dalehite v. United States,"'though by a closely divided Supreme Court, possibly indicates a turning point in litigation involving the construction of the Federal Tort Claims Act. The trend theretofore had been to expand the concept of suability and liability expressed in the Act. In "United States v. Aetna Casualty and Surety Co." the Court had established the right of an insurer-subrogee to sue in its own name on a portion of a claim arising in favor of the insured-subrogor, despite the Anti-Assignment Statute and the obvious procedural and administrative difficulties not dealt with …

Some Possible New Fields In A Narrowing Act, Ross O'Donoghue

Vanderbilt Law Review

Both Congress and the courts, particularly the Supreme Court, have increasingly tended to narrow the scope of the Tort Claims Act, but within these confines there are certain classes of torts, well-recognized in the common law, which have been little used or totally neglected as the basis for suits. It is the purpose of this paper to suggest some of these and to consider their availability. Of course, such speculation may prove faulty in some cases and overlook others actually available. Prediction in law is a very risky business, so that some of these suggestions will very likely not stand. …

State Law Versus A Federal Common Law Of Torts, Irvin M. Gottlieb

Vanderbilt Law Review

The Statute, Its Scope and Basic Standard Section 421(k) of the Federal Tort Claims Act excludes from its coverage "any claim arising in a foreign country."' The Foreign Claims Act which was passed by the 77th Congress and amended by the 78th Congress has specific application to foreign countries, including places located therein which are under the temporary or permanent jurisdiction of the United States.

Court test of the territorial scope of the Federal Tort Claims Act arose in a series of cases decided in 1948, culminating in United States v. Spelar, where the issue of possible foreign coverage was …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Full Faith and Credit--Characterization of Statute as Penal

Federal Tort Claims Act--Exceptions--Intentional Torts

Federal Tort Claims Act--Indemnity--Employee's Liability to Government

Federal Tort Claims Act--Parties--Impleader and Joinder

Gift Tax--Valuation--Sale or Replacement Value

Life Insurance--War Clause--Korean Conflict

Tennessee Procedure--Right to Jury Trial in Chancery--Purely Equitable Suit

Trade-Marks--Infringement as Unfair Competition--Application of Lanham Act

Claims Against States, Leslie L. Anderson

Vanderbilt Law Review

In 1924, commencing a leading series of articles on "Government Liability in Tort," Professor Edward M. Borchard referred to what he called the "unexampled expansion of the police power in the United States." He wrote of the increasing risks which individuals in this country are left to bear from "defective, negligent, perverse or erroneous administration" of the functions of government. If those functions had increased at a considerable rate at the time of his article, what would one say of their extent today? Even the leaders of the New Deal discerned the risks to which increased governmental activity subjected people, …

Subrogation, Indemnity, Contribution And Election Of Remedies Aspects Of The Tort Claims Act, Fred Blanton

Vanderbilt Law Review

Dramatically altering the concept of sovereign responsibility in the field of injuries to person and property, the Federal Tort Claims Act of 1946 in action has progressed steadily by application and interpretation to emerge as one of the most, if not the most, important pieces of domestic legislation enacted during the past decade. This ascendency has transpired primarily because the overwhelming majority of courts have boldly taken a dynamic approach to the inevitable problems occurring and recurring in a day-to-day consideration of the multitude of factual permutations and combinations presented to them for analysis and decision under the Act. Generally …

Federal Tort Claims Act And French Law Of Governmental Liability: A Comparative Study, Sidney B. Jacoby

Vanderbilt Law Review

Governmental liability for tort seems to be a field in which a comparative study is particularly appropriate. The subject is a segment of legislative reforms in which the influence of foreign systems has been marked. Highly developed foreign systems, especially the French, played their role in the demands among scholars for legislative reforms. The late Professor Edwin Borchard of Yale Law School, for many years one of the chief sponsors of federal legislation, made detailed studies of the foreign laws of governmental responsibility for tort.'

Book Reviews, Ferdinand F. Stone, Reginald Parker (Reviewer)

Vanderbilt Law Review

Governmental Liability By H. Street New York: Cambridge University Press, 1953. Pp. 221. $5.00.

reviewer: Ferdinand F. Stone

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Roman Law and Common Law: A Comparison in Outline, Second Ed. By W. W. Buckland and Arnold D. McNair. Revised by F. H. Lawson New York: Cambridge University Press, 1952.Pp. xii, 439. $7.00.

reviewer: Reginald Parker

The Rule Of Law And The Modern Social Welfare State, Roscoe Pound

Vanderbilt Law Review

Professor Friedmann, who had already made a notable contribution to jurisprudence in his Legal Theory, now in its second edition, has now made a second and perhaps even more notable contribution toward understanding the role and presaging the future of the common law system in the society of today. His purpose is a reassessment of the function of law and of legal institutions in England a half century after Dicey's Law and Public Opinion in England during the Nineteenth Century, comparing the economic function of law and how the common law was adapted to it in the nineteenth century with …

Section 112(B)(6): Benefit Or Burden?, Raymond Whiteaker

Vanderbilt Law Review

The general provision in the Internal Revenue Code pertaining to the liquidation of corporations is section 115 (c). Under this section gain or loss on a liquidation is recognized to the extent that the assets received in liquidation exceed or fail to exceed the basis of the share-holder's stock. An exception to this general rule, however, is provided by section 112(b) (6) whereby a parent may liquidate a subsidiary without recognizing any gain or loss on the liquidation if the statutory requirements are met.

The nonrecognition provision first appeared in the Revenue Act of 1935 as section 110 (a).' This …

Personal Liability Of Corporate Officers For Ultra Vires Contracts, J. F. Dirisio

Vanderbilt Law Review

A director or other officer of a corporation, when contracting on its behalf, acts as its agent and the laws of agency are generally applicable. This note presents those problems, apparently unique to corporation law, in the liability of an agent who, with authority, contracts for a principal who has no authority.' Of no concern here are those instances where, either because of ratification or estoppel, the corporation itself is liable, since if the principal is bound the other party has no ground of complaint against the agent.

An officer of a corporation, contracting in excess of or without authority …

Book Reviews, Jay W. Murphy, Edmund M. Morgan (Reviewer), Reginald Parker (Reviewer)

Vanderbilt Law Review

Readings in Jurisprudence and Legal Philosophy

By Morris R. Cohen and Felix S. Cohen

New York: Prentice-Hall, Inc., 1951. Pp. viii, 944, $8.50

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Jurisprudence: Men and Ideas of the Law

By Edwin W. Patterson

Brooklyn: The Foundation Press, Inc., 1953. Pp. viii, 649.

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Jurisprudence -- Its American Prophets

By Harold Gill Reuschlein

Introduction by Roscoe Pound

Indianapolis: The Bobbs-Merrill Company, Inc., 1951. Pp. xii, 527, $7.50

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Law and Society in Evolution

By Sidney Post Simpson and Julius Stone

Introduction by Roscoe Pound

St. Paul: West Publishing Co.,1948. Pp. xlvi, 692

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Law in Modern Democratic Society

By …

Overlapping, Duplication And Conflicts Among Municipal Corporations, Alvin E. Evans

Vanderbilt Law Review

There is a well-known principle of municipal government that there cannot be two municipalities possessed of the same or similar powers, privileges and jurisdiction covering the same territory at the same time. Perhaps the earliest expression of this principle may be found in an early English dictum to that effect where the court explains why such a proposition must be true, viz., "[F]or, instead of good order, that would only be productive of anarchy." Whether in our conglomerate of municipalities we have abided by this principle or have created duplications, overlappings and conflicts due to the vast multiplicity of municipal …

Why The Prudent Man?, Alex B. Stevenson

Vanderbilt Law Review

In the law relating to fiduciary investments there has been going on of recent years something very like a revolution. One needs an excuse for adding anything at all to the very considerable volume of comment about the Prudent Man Rule for trust investment. However, failing the hope that anything really new may be said, there does remain a persistent belief that the rationale of what has happened has been somewhat oversimplified.

In the interests of perspective, accordingly, it might be serviceable if we were first (and briefly) to reexamine some of the history of the more dramatic highlights of …

The Non-General Power Of Appointment -- A Creature Of The Powers Of Appointment Act Of 1951, Allan Mccoid

Vanderbilt Law Review

In the course of the past fifty years, during which estate planning has become a specialty rather than one of many jobs handled by the general practitioner, the power of appointment has become an increasingly popular form of gift. The two great advantages which have been claimed for the power are the introduction of great flexibility into the estate plan and the reduction of the tax burden on the property as it passes from one generation to another. It was presumably with both of these objectives in mind that Professor William J. Bowe made a suggestion last year as to …

Heir Hunting -- A Profession Or A Racket?, Frank C. Ingraham

Vanderbilt Law Review

Although the cases clearly define the law and public policy applicable to the genealogist's contract, the important variable is the individual factual situation and its implications. The courts have upheld the heir-hunter's contract when the following factors were predominant in the suit: where the services of the genealogist amounted to valuable consideration; where the parties were competent and on equal footing; where there was no implied or express agreement to participate in existing or contemplated litigation; where the beneficiary accepted the evidence which established his claim and received the benefit of the claim; where there was no duty on the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases--

Attorney and Client--Contingent Fee Contracts--Divorce Action

Corporations--Corporate Power--Contributions to Philanthropic Institutions

Corporations--Criminal Anti-Trust Action--Indemnification of Directors for Litigation Expenses

Evidence--Presumption of Law and Inference of Fact--Retrospective Presumption of Continuity

Federal Procedure--Class Actions--Discretion of Trial Court

Income Taxation--Deductions--"Ordinary and Necessary"--Expenses

Income Taxation--False Statements--Criminal Penalties

Labor Law--Arbitration Agreements--Specific Enforcement in Federal Courts

Military Law--Discharged Personnel--Power to Arrest for Serious Crimes

Military Law--Privilege Against Self Incrimination--Admissibility of Handwriting Specimen Obtained Involuntarily

Torts--Automobile Guest--Contributory Negligence as a Matter of Law

Workmen's Compensation--Employees' Altercations--Aggresso

Book Reviews, Law Review Staff

Vanderbilt Law Review

Readings in Jurisprudence and Legal Philosophy By Morris R. Cohen and Felix S. Cohen New York: Prentice-Hall, Inc., 1951. Pp. viii, 944,$8.50

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Jurisprudence: Men and Ideas of the Law By Edwin W. Patterson Brooklyn: The Foundation Press, Inc., 1953. Pp. viii, 649.

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Jurisprudence--Its American Prophets By Harold Gill Reuschlein Introduction by Roscoe Pound Indianapolis: The Bobbs-Merrill Company, Inc., 1951. Pp. xii, 527, $7.50

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Law and Society in Evolution By Sidney Post Simpson and Julius Stone Introduction by Roscoe Pound St. Paul: West Publishing Co.,1948. Pp. xlvi, 692

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Law in Modern Democratic Society By Sidney Post Simpson …

Labor Law, Paul H. Sanders

Vanderbilt Law Review

The body of statutory wording, regulations and court and administrative decisions which clusters around such familiar federal landmarks as the Labor-Management Relations Act ("Taft-Hartley") and the Fair Labor Standards Act ("Wage and Hour") fall far short of constituting the entire subject matter of Labor Law. State statutes or the common law of the state may be much more in point in providing the legal framework for solving a particular problem of the employment relationship, whether viewed individually or collectively. The law which governs the various aspects of the "human factor in industry," or which prescribes the ground rules under which …

Constitutional Law, Paul H. Sanders

Vanderbilt Law Review

The Supreme Court of Tennessee has been faced with few major Constitutional Law problems during the period under consideration. Statistically, the action of the Court in invalidating one law out of almost a score that were attacked before it on the basis of constitutional defect suggests an attitude of judicial restraint toward the product of a coordinate branch of government. The relatively small number of constitutional questions raised-- and many of them were obviously make-weight rather than points of principal reliance-- suggests a general awareness of the Court's stability and the unlikelihood of its departing from established precedent. Similarly, regard …