Law Commons^™

Small Business Growth And Survival During The First Two Years, Kurt B. Mayer, Sidney Goldstein

Vanderbilt Law Review

In summary, analysis of the businesses observed in this study reveals that certain conditions are more likely to have fatal effects on a business venture than others. Undercapitalization, managerial in-competence, and personality defects appear to be insurmountable liabilities which cannot be mitigated by the presence of the other assets. Although adequate capital and managerial competence are indispensable for survival, they are rarely sufficient in themselves to insure it. They must be supplemented by other factors, such as motivation, hard work, persistence, and flexibility.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Advertising--Undisclosed Use of Simulations In Television Commercials--a Deceptive Practice

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Antitrust Law--News Service Package Contract, a Tying Arrangement under Section I of the Sherman Act

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Antitrust--Union-Employer Agreements as to Labor Demands To Be Sought From Other Employers

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Constitutional Law--Laws Prohibiting the Use of Contraceptives by Married Couples for the Prevention of Conception Are Unconstitutional

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Constitutional Law--Rights of Addressee To Receive "Communist Political Propaganda" Protected Under First Amendment

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Federal Courts--Erie Doctrine Not the Test for Applicability of Federal Rules of Civil Procedure

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Constitutional Law--Televising of Criminal Trials Held Violative of the Right to a Fair Trial …

Managerial Problems Of The Enterprise, Douglas C. Basil

Vanderbilt Law Review

The small firm, particularly the newly formed one, is confronted with problems ranging from the shortage of capital to the legal intricacies of organizational form. The technical obstacle of raising capital, obtaining sales outlets, and purchasing equipment must be surmounted. In the final analysis, however, the success of a small business depends upon the managerial ability of its owner.' The purpose of this article is to identify a few of the major management problems of the small enterprise and suggest appropriate solutions. One continuous difficulty is the structuring of the organization. At what point should staff specialization occur? What are …

The Right To Effective Counsel In Criminal Cases, Ernest G. Kelly, Jr.

Vanderbilt Law Review

Under the Constitution of the United States as well as the laws of many states, a defendant in a criminal action is entitled not merely to the formality of representation by any counsel but also to some degree of efficacy in this representation. Determining whether this right to effective counsel has been violated is a difficult problem. One source of difficulty is the potential conflict between two strong public policy considerations: the desire to spare a defendant the injustices which can result from ineffective representation as opposed to the need for finality of judgments and the orderly functioning of the …

Inconsistent Taxation Of Grantor Powers, Leslie A. Nicholson, Iii

Vanderbilt Law Review

"Certainty," Lord Hardwicke declared in 1753, "is the mother of repose and therefore the law aims at certainty."' This note will explore the extent to which the law has missed the mark of certainty in the taxation of trust grantors. The heavy burden of federal income and estate taxation has prompted many persons to divest themselves of property during their lives. The property is usually given to a relative in order to shift the income from the property into a donee's lower tax bracket and to avoid the payment of an estate tax on the property by incurring an inter …

A Symposium On Small Business, Eugene P. Foley

Vanderbilt Law Review

The diversified composition of small business frequently causes those unfamiliar with small business problems to despair of finding means to strengthen this vital segment of our economy. What can be done to help such an amorphous group develop a form that can withstand the pressures of a competitive society? There is no specialized material with which a small business can be coated, like a space capsule, to make it resistant to the heat and stresses of risk-taking in a profit and loss economy.

Financing -- A Major Problem Of Small Business, Joseph T. Howell Jr.

Vanderbilt Law Review

It is imperative that a definitive study of small business include a discourse on financing.' Generally, the first consideration of a prospective entrepreneur is the availability of sufficient capital, borrowed or paid-in, to support the activity of his business. Of paramount importance, however, to those who attempt to assess the prospects of survival and future growth of a company is the recognition that all considerations are secondary to the human factor. The careful banker, while requiring collateral to secure a loan, depends on his estimation of the applicant's personality traits. While the adequacy of capital contributes to the success of …

Condominium: A Reconciliation Of Competing Interests?, James C. Clark

Vanderbilt Law Review

This note will first examine some of the operative provisions of the condominium statutes. Particular emphasis will be placed upon those provisions which are basic to the creation, existence, and dissolution of this unique form of property ownership. The FHA Model Statute For Creation of Apartment Ownership will be the principal vehicle of analysis, for it is the basis of many of the state condominium statutes. State provisions which differ from the Model Act will then be examined to discover the best statutory answer to the needs of condominium housing. Finally, attention will be focused on the tax implications of …

Expanding Jurisdiction Of The Federal Power Commission And The Problem Of Federal-State Conflict, William A. Campbell

Vanderbilt Law Review

After exploring federal-state conflicts in the granting of licenses for hydro-electric projects, it is clear that, thus far, the FPC has won most of the disputes; and this is not altogether bad, for there are certainly legitimate national interests to be protected here. But there are also legitimate state interests to be protected, not out of concern for the preservation of federalism as a political theory, but because the state is the political unit with the primary concern and responsibility for certain matters and because it can administer and regulate those matters with a higher degree of effectiveness than can …

Judicial Notice Of Foreign Law, Jerome J. Krasa

Vanderbilt Law Review

A fundamental cleavage exists between the two methods of viewing judicial notice. Both views must be understood before the doctrine of judicial notice can be said to have a real meaning applicable to the whole variety of legal problems which arise today. This understanding must be achieved before many of the seeming inconsistencies in what has been written about the doctrine can be clarified. Finally, this basic understanding must be had if any comprehension of the operation of judicial notice in any specific field of law is possible.

Prologue, Joe L. Evins Mc

Vanderbilt Law Review

A more vivid awareness of the significance of small business to the economic structure of the nation must be cultivated. Those who have examined the role of the small businessman in our economy have emphasized repeatedly that a strong small business sector is essential to the preservation of our free enterprise system, the maintenance of a balance of economic and political power, and the assurance of a constant flow of new ideas and vigor into that system.

Condominium--Tax Aspects Of Ownership, Richard R. Mcdowell

Vanderbilt Law Review

The ancient concept of condominium ownership has been revived in this country as an answer to the increasing demand for adequate urban housing. The advantages of individual home ownership have had to be subordinated by many families in favor of the convenience of apartment rental. A partial answer to this problem has been found in the creation of cooperative apartments, but this device still leaves much to be desired.' It was not until Puerto Rico achieved its initial success with condominiums that the advantages of this form of home ownership fully came to the attention of this country. To encourage …

Charitable Tort Immunity Under The First Amendment, I. Stephen North

Vanderbilt Law Review

The doctrine of charitable tort immunity was conceived in England in 1861. The case of Holliday v. Leonard' held that to apply funds in trust to satisfy a tort claim would be to thwart the intent of the donor. In 1871, Holliday was overruled and since then charities in England have been liable for their torts. Apparently unaware that the Holliday case had been overruled, the courts of Massachusetts and Maryland' cited it as authority and established the immunity rule in America. From the beginning, the doctrine was not without its dissenters. In 1879, for example, Rhode Island rejected immunity. …

When Will The Corporate Form Save Taxes?, Richard L. Strecker

Vanderbilt Law Review

While major emphasis will be placed upon the tax considerations involved in answering the question posed by the title, the broader problem is aptly stated in the familiar phrase, "Choice of Business Form."' It is not possible to consider this problem realistically without taking into account the context of the business and private law considerations which must enter into the decision, and may indeed be controlling over the tax factors. Therefore, the question, "When Will the Corporate Form Save Taxes?" will be discussed in the light of the full legal and business milieu.

The Antitrust Laws And The Corporate Executive's Civil Damage Liability, Joseph R. Manning

Vanderbilt Law Review

It will be the purpose of this note to examine the executive's potential civil liability for damages resulting from his violations of the federal antitrust laws. First, there is the injury to the persons against whom his unlawful conduct was directed. They may desire compensation for their injuries, as well as treble damages in a suit authorized by section 4 of the Clayton Act.' Also, the executive may cause injury to his corporation by subjecting it to fines, damages,and litigation expenses. This presents the question: whether a shareholder may bring a derivative suit against the executive for these damages to …

Agency -- 1964 Tennessee Survey, John S. Beasley

Vanderbilt Law Review

During the period covered by this Survey several cases have raised rather interesting points for consideration under the law of agency. On one occasion the Tennessee Supreme Court declined the opportunity of joining the ranks of the majority of states in moving toward a more modern rule on employer's liability with respect to an employee's child injured negligently by the employee. In this and other decisions, the courts have followed Tennessee precedent rather closely, with the result that there are few changes in the law of agency.

Conflict Of Laws--1964 Tennessee Survey, Elliott E. Cheatham

Vanderbilt Law Review

The language of the typical state statute is general and unlimited in terms, as, "a contract," "any tort, "every will , as if the statute should be applied to all cases involving such a matter in the courts of the state. Ordinarily, statutes originate and are drafted with thought only to matters within the state. When the matter in issue occurs wholly or partly in another state, it would be an error to determine the reach and application of the statute merely from the generality of its language. In the absence of specific direction this should be determined in the …

Business Associations--1964 Tennessee Survey, Daniel J. Gifford

Vanderbilt Law Review

In Denny v. Phillips & Buttorff Corp.,' the United States Court of Appeals for the Sixth Circuit affirmed a judgment of the United States Court for the Middle District of Tennessee which awarded $235,000 in fees plus $6,227.98 in expenses to counsel representing minority stockholders in a suit which had been brought to force cancellation of a purchase by the Phillips & Buttorff Corp. from the instrumentalities of the controlling stockholders of such corporation of 60,000 shares of stock in Win. R.Moore Dry Goods Company for $2,700,000. The purchase of the Moore stock had apparently been used as a means …

Decedents' Estates, Trusts And Future Interest -- 1964 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

Validity of Instrument Which Only Appoints Fiduciary--Is an instrument which makes no testamentary gift, but only designates or appoints the personal representative to administer the estate and provides certain special powers of fiduciary administration entitled to probate as a valid will? While it has been said that there need be no dispositive gift of property to entitle a testamentary writing to probate as a will,' there seems to have been no definite court decision in Tennessee so holding until the recent case of Delaney v. First Peoples Bank of Johnson City. In that case a writing properly executed with the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Attorneys--Interstate Legal Services and the Unauthorized Practice of Law

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Conflict of Laws--New York Public Policy Permits Enforcement of Foreign Gambling Obligation

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Conscientious Objectors--Universal Military Training and Service Act--Supreme Court Test of"Belief In A Relation to A Supreme Being

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Constitutional Law--Abatement of Convictions Occurring Prior to Passage of Civil Rights Act of 1964

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Escheats--Disputes Between States Concerning Unclaimed Corporate Obligations

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Labor Law--Failure To Bargain--Employer Required To Bargain With Respect to His Proposal To Contract Out Work

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Professions--Canon Twenty of the Canons of Professional Ethics Interpreted To Ban Statements to News Media

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Taxation--Corporate Income Taxation--Merger …

Legal Positivism And The Natural Law: The Controversy Between Professor Hart And Professor Fuller, George Breckenridge

Vanderbilt Law Review

Professor Hart defends legal positivism and Professor Fuller sets out his view of the natural law. Perhaps it would be more accurate to say that Fuller is against positivism and Hart against natural law. Each is an untypical representative of the varied traditions that bear these names. Each is, at the same time, because of his radical restatement and defense of his positions, probably the most reasonable and least extreme antagonist. In this dialogue, if anywhere, we are likely to discover the true issues and the common ground, if any, between the two positions. In fact each concedes, frankly or …

Insurance -- 1964 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

In Phoenix Ins. Co. v. Brown,' the named insured in a fire policy was Walter Brown. Walter had at one time owned the property insured. He had, however, conveyed it to his divorced wife Elsie, for whom he "was looking after the property," prior to the taking out of this policy. It was not alleged that the defendant's agent (who had previously written other policies on the property in Walter's name at the time Walter was the title-holder) knew of the conveyance to Elsie. After total destruction by fire the defendant refused to pay on the grounds of the lack …

Torts -- 1964 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, the Tennessee appellate courts decided a considerable number of tort cases last year, covering a wide variety of problems.There were no striking new developments. In fact, the two decisions which were awaited by the profession with the greatest interest, Kyker v. General Motors Corporation' and Texas Tunneling Co. v. City of Chattanooga, tend to slow down some modem developments. In the Kyker case, it was indicated that manufacturers are not yet strictly liable in Tennessee, at least on warranty grounds, without privity of contract. In the Texas Tunneling case, a federal court undertaking to apply Tennessee law placed …

Racial Imbalance In The Public Schools: Constitutional Dimensions And Judicial Response, David B. King

Vanderbilt Law Review

Eleven years after the decision of the Supreme Court in the School Segregation Cases, white and Negro children remain separated in many school systems throughout the nation. In the South this racial separation has been persistently fostered by both school and public officials. Since the rationale of the School Segregation Cases to the effect that official policy requiring separation on the basis of race is prohibited, this racial separation in the South, commonly known as segregation, is clearly illegal. Separation of the races in the school systems of the North and West has resulted both from devious types of racially …

Equity -- 1964 Tennessee Survey, W. W. Garrett

Vanderbilt Law Review

In 1956 in the case of Langford v. Vanderbilt University, the Tennessee Supreme Court recognized the existence of a common law right of privacy. The Court of Appeals, Western Division, in Kyritsis v. Vieron, now holds that injunction does not lie to protect a personal right. The suit arose in the chancery court of Shelby County. Complainant alleged he was pastor of the Saint George's Greek Orthodox Church affiliated with the Greek Orthodox Church of North America and Canada, and that defendant was pastor of the Church of the Annunciation affiliated with the Greek Orthodox Archdiocese of North and South …

Torts -- 1964 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, the Tennessee appellate courts decided a considerable number of tort cases last year, covering a wide variety of problems.There were no striking new developments. In fact, the two decisions which were awaited by the profession with the greatest interest, Kyker v. General Motors Corporation' and Texas Tunneling Co. v. City of Chattanooga, tend to slow down some modem developments. In the Kyker case, it was indicated that manufacturers are not yet strictly liable in Tennessee, at least on warranty grounds, without privity of contract. In the Texas Tunneling case, a federal court undertaking to apply Tennessee law placed …

Unexpected Disqualification Of Reorganizations Under The Internal Revenue Code By The Inadvertent Transfer Of Boot, Alden H. Smith, Jr.

Vanderbilt Law Review

It is common today to read of corporations "merging" or of one corporation "buying out" another. Many of these transactions will be "reorganizations" under section 368(a) of the Internal Revenue Code. Section 368 is the current congressional resolution of two conflicting policies of tax law. On the one hand, it is desirable to promote the free mobility of capital in order that it be used in the most economical manner. On the other hand, there is the desire to prevent shareholders from using corporate reorganizations as a means of avoiding income taxes. The most common of shareholder schemes are those …

Evidence: A Functional Meaning, Lyman R. Patterson

Vanderbilt Law Review

A trial always involves two basic problems-the problem of ascertaining the truth of the matter in issue, and the problem of re-solving a dispute. The former can be characterized as the probative problem, arising from the problem of proving, and the latter as the forensic problem, arising from the procedural problem of proving-in-a-trial. The probative problem is a problem of evidence in that it is the problem of using evidence to ascertain the truth by "the ratiocinative process of continuous persuasion."' The forensic problem is a problem of the admissibility of evidence, and it is the forensic problem which has …

Court-Curbing Periods In American History, Stuart S. Nagel

Vanderbilt Law Review

Due to its unavoidable involvement in the political process, the Supreme Court has often been an object of congressional attack. Excellent descriptive studies have been made of certain periods of conflict between Congress and the Court,' but there is a lack of writing which systematically analyzes relations between Congress and the Court throughout American history. It is the purpose of this: paper to analyze in a partially quantitative manner some of the factors which seem to account for the occurrence or nonoccurrence and for the success or failure of congressional attempts to curb the Court.

Contracts -- 1964 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Promissory Estoppel--Application by Federal Court

II. Third Party Beneficiary--Enforcement of Labor and Material Bond

III. Statute of Frauds--Statute as Defense to Third Party

IV. Parol Evidence Rule--Application to Extrensic Subsequent Agreement

V. Illegal Bargains--Agreement Not to Compete

VI. Death of Party to Personal Service Contract as Terminating the Contract