Law Commons^™

Rule 10b-5 And The Stockholder's Derivative Action, Lewis D. Lowenfels

Vanderbilt Law Review

This article focuses upon a new, emerging private cause of action based upon section 10(b) and rule 10b-5-a stockholder's derivative action initiated on behalf of a corporation which has been defrauded in connection with the purchase or sale of securities. Five reported cases, three decided in the last three months of 1964, have sustained a stockholder's derivative suit based upon section 10(b) and rule 10b-5. The significance of these decisions becomes apparent, not only when one considers that the derivative suit has traditionally been an internal corporate matter governed exclusively by state law, but also when one focuses upon the …

Creditor's Rights And Security Transactions -- 1964 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

The Bankruptcy Act gives the trustee, as of the date of bankruptcy,the rights of a lien creditor whether or not such creditors actually exist." Yet, the rights of such a lien creditor and his status relative to other conflicting interests are determined by state law. Under Tennessee law encumbrances on automobiles, other than liens dependent on possession, must be noted on the certificate of title to be valid against creditors, purchasers or encumbrancers in the absence of actual knowledge.' In the instant case, although the encumbrance was noted on the bill of sale, it was not noted on the title …

The Experience Of State Fair Employment Commissions: A Comparative Study, Arnold H. Sutin

Vanderbilt Law Review

Passage of the new federal civil rights law in 1964 might have been expected to decrease the importance of the state fair employment practices (FEP) laws. Congress, however, chose not merely to permit these laws to continue in force to deal with purely local problems,but went further to entrust the primary administration of title VII, the federal fair employment statute, to state agencies where they exist. Thus the experience of these state agencies is of even greater importance now than formerly, for they will perform the day to day work of carrying out our nation's policy to prohibit discrimination in …

The Defense Establishment And The Domestic Economy, Adam Yarmolinsky

Vanderbilt Law Review

The first edition of Adam Smith's Wealth of Nations was published on the 9th of March, 1776, within four months of the signing of the Declaration of Independence. It was one of those rare occasions when history permits something to happen on a convenient date. For the principles of economics which Adam Smith expounded are an essential element in the structure and growth of American social thought, along with the principles of the Declaration of Independence itself. Their importance and relevance should not be obscured by the irrelevancies of economic fundamentalists, any more than their relevancies of constitutional fundamentalists can …

Criminal Law And Procedure -- 1964 Tennessee Survey, Graham Parker, Robert E. Kendrick

Vanderbilt Law Review

The substantive criminal law receives little attention from the Tennessee appellate courts. No doubt this observation would be equally true of most jurisdictions. To one who received his legal training in a common law system of criminal law and who yet has had some experience with Canada's federal code of criminal law, the emphasis on criminal procedure is surprising. Does this mean that the state codes of substantive law have reached such heights of perfection and expertise that the efforts of the Model Penal Code draftsmen are unnecessary or, at best, academic? It is unlikely. The position rather reflects a …

Domestic Relations -- 1964 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

Though most of the family law decisions of the supreme court and appellate courts of Tennessee reported during 1964 were of the common garden variety, four cases presented issues of notable significance, and in three of them the supreme court seems to have decided questions of first impression in this jurisdiction. As usual, the most common cause of controversy lay in matters of alimony, child support, and property settlements; but there were also decisions regarding grounds for divorce, child custody, the wife's right to damages for loss of the husband's consortium, and the parents' liability for a child's tort. Three …

Constitutional Law -- 1964 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

The prosecutions in McKinnie v. State, arose from "sit-in" demonstrations by which a group of Negroes attempted to obtain service at a privately operated cafeteria in Nashville. The passage of the Civil Rights Act of 1964 has since been held by the United States Supreme Court to abate these particular prosecutions and the prospective application of its public accommodations provisions makes it unlikely that their facts will recur.

Evidence -- 1964 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The difficulty in dealing with presumptions arises in part from the fact that the term embraces a host of different meanings, varying with the purposes underlying the presumption in a given situation. Unfortunately, the courts seldom articulate the meaning which they are attributing to the term and consequently do little to clear up the confusion... In Arnett v. Fuston, a negligence action, plaintiff argued that a verdict of not guilty against one of the two co-defendants was not supported by any evidence, and that a presumption should apply against him "for his election to stand on his motion for directed …

Annual Survey Of Tennessee Law, E. Blythe Stason

Vanderbilt Law Review

In preparing the Survey of Administrative Law for 1964, we find only eleven cases upon which to comment. Seven of them arise from a single field of administrative action, i.e., the work of County Beer Boards. One is a zoning variation case, another involves a realtor's license revocation, and the other two are lower federal court cases decided in Tennessee, one relating to social security, and the other to an interpretation of the abandonment provisions of the Interstate Commerce Act. Compared with many other states this is a modest showing. Indeed, when one takes account of the number of boards …

State And Local Taxation -- 1964 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Five cases involving a construction of sections 67-26021 and 67-26092 of the income tax statute (Hall Income Tax) were consolidated for one opinion in the Gallagher case. Two of the cases involved the redemption of shares by the issuing corporations; the other three involved the liquidation of corporations, with a surrender of shares and distributions of assets. The Commissioner, in all of these situations, imposed an income tax on the amount constituting the difference between the original investments in the shares and the sum received in liquidation or redemption. The Commissioner argues that although these amounts may not have been …

Multiple Corporations Under The Revenue Act Of 1964, James T. O'Hare

Vanderbilt Law Review

It is a maxim of taxation that where graduated tax rates are imposed on the income of a legal entity, tax avoidance in the form of income splitting will be attempted. This has proven true in the case of individuals' and trusts, and has more recently become true of corporations. For over a decade the law governing the tax status of affiliated corporations has been developing. The Revenue Act of 1964 introduces several important changes in the federal income tax treatment of multiple corporations. The purpose of this note is to examine the tax status of multiple corporations both before …

College Education As A Legal Necessary, R. Douglas Wrightsel

Vanderbilt Law Review

This note seeks to determine whether a college education is a legal necessary, or perhaps it would be better to say for what purposes it may be necessary. Then we shall consider what consequences may flow from calling it a necessary, and how intelligent legal planning can achieve the most favorable consequences. Controversy over whether a college education is a necessary has centered primarily in two areas. The first major area is the divorce situation in which the court is petitioned to include in the support decree a sum for the college education of the child. The second area involves …

Recent Developments Concerning Constitutional Limitations On State Defamation Laws, Samuel G. Mcnamara

Vanderbilt Law Review

Two recent cases, New York Times Co. v. Sullivan A and Garrison v. Louisiana, have over-turned many aspects of state laws regarding the defamation of public officials. The importance of these two cases is due not only to the problems they have solved, but also to the potential confusion which they have created. The primary purpose of this discussion is to point out the practical effect which the decisions will have on state law, both statutory and decisional. This note is concerned primarily with those aspects of the law of defamation dealing specifically with the conditional or qualified privilege to …

Restitution -- 1964 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The most significant case during the Survey period is Gulf Oil Corp.v. Forcum. The State of Tennessee condemned for highway purposes certain property including the location of a filling station. Defendant was lessee of this property and had installed its own tanks, pumps and other equipment. Plaintiff had the contract to construct the highway and was entitled under this contract to salvage condemned property. Refusing to allow defendant's agent to remove the service station equipment, plaintiff removed the equipment itself at considerable expense. When the condemnation proceeding was completed, defendant was awarded 2,000 dollars for the value of its leasehold, …

Expanded Bases Of Jurisdiction -- An Examination Of Tennessee's New "Long-Arm" Statute, Harry G. Nichol, Jr.

Vanderbilt Law Review

A foreign corporation considering the consequences of its activity in relation to forums outside the state of its incorporation is faced with three basic legal problems. They are generally regarded as the different degrees of "doing business" for purposes of (1) qualification,(2) taxation, and (3) judicial jurisdiction. The purpose of this paper is to discuss a major recent development concerning the jurisdiction of Tennessee courts, in light of similar developments throughout the country.

Book Reviews, Elliot E. Cheatham, Joseph B. Board, Jr., Monroe Berkowitz

Vanderbilt Law Review

The Law Practice of Alexander Hamilton By Julius Goebel, Ed. and Associate Editors New York and London: Columbia University Press, 1964. Pp. XXV, 898.

reviewer: Elliot E. Cheatham

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Lawyers in Politics: A Study in Professional Convergence By Heinz Eulau and John D. Sprague Indianapolis: Bobbs-Merrill,1964. Pp. 164. $1.95.

reviewer: Joseph B. Board, Jr.

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Occupational Disability and Public Policy Edited by Earl F. Cheit and Margaret S. Gordon. New York: John Wiley and Sons,Inc., 1963. Pp. xii, 446.

reviewer: Monroe Berkowitz

Legislation, Law Review Staff

Vanderbilt Law Review

In increasing measure the legal profession has come to recognize its public responsibilities. One of these responsibilities is to protect clients from the dishonesty of lawyers. The lawyer who handles funds of a client is a fiduciary in the highest sense. Occasionally, however, an attorney misappropriates the funds of his client. The client's remedy against the lawyer is probably futile, for an embezzler will generally have no funds to cover the loss. Although misappropriation is rare it receives much publicity when it does occur. Embezzlement and loss with consequent publicity impair the reputation of the entire legal profession.In dealing with …

Firearms Legislation, Joe B. Brown

Vanderbilt Law Review

Throughout recorded history men have armed themselves with weapons for use against their fellow men and for protection from environmental hazards. An increasing population combined with increasingly effective and deadly weapons has created a problem in the control of private weapons. At the present time every state and district in the United States and the federal government have some restrictions on firearms.' Are they adequate? Many think not. A recent Gallup Poll shows that seventy-three per cent of the people in the United States would favor a law requiring a police permit before a person could buy a gun. Even …

Distributions By Charitable Organizations: Their Effect On Tax Exempt Status And Deductibility Of Donations Received, Thomas H. Belknap

Vanderbilt Law Review

The number and importance of tax exempt organizations has steadily grown in the past decade to the point where there were over 45,000 as of the beginning of 1963, as compared with 12,000 at the end of 1952. "Unquestionably, the economic life of our nation has be-come so intertwined with foundations that unless something is done about them, they will hold a dominant position in every phase of American life." This, according to the Patman Report, is because"multi-million-dollar foundations have replaced the trusts which were broken up during the Theodore Roosevelt administration." Both the Patman Report and the increased activity …

Determining The "Line Of Commerce" Under Section Seven Of The Clayton Act, William H. Barr

Vanderbilt Law Review

A provision of the antitrust statutes currently receiving a great deal of publicity is the anti-merger section of the Clayton Act-section 7. The statute prohibits the acquisition by one corporation of stock or assets of another corporation, "where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." It is designed to eliminate the merger as a means to amassing monopoly power by prohibiting at its incipiency the lessening of competition or the creation of monopoly power through merger. A finding …

In Search Of Holmes From Within, Saul Touster

Vanderbilt Law Review

What appears here is part of a longer psychological study of Holmes which takes as points of focus, or rather of entree, four of his life choices: his enlistment in the Union forces while still in college in 1861, his entrance into law school in 1864, his decision to give up a law professorship at Harvard in 1882 in favor of the Massachusetts bench, and finally, his move to Washington and the Supreme Court in 1902. In a sense this last was not a choice. There were not the clear alternatives before him as there were in the first three--he …

Theodore Roosevelt And The Appointment Of Mr. Justice Moody, Paul T. Heffron

Vanderbilt Law Review

The author here describes the events leading to the appointment of William Henry Moody to the United States Supreme Court. Here counts the pressures brought to bear on President Theodore Roosevelt and the considerations which led to the President's selection of Moody over Horace Harmon Lurton.

William 0. Douglas -- His Work In Policing Bankruptcy Proceedings, John W. Hopkirk

Vanderbilt Law Review

William 0. Douglas, while associated with the Securities and Exchange Commission during the mid-nineteen thirties, was responsible for a study of methods and procedures of corporate reorganization. By examining this area of Douglas' work, we can compare the position on corporate reorganization which the Justice developed as an administrative official for the New Deal with his later consideration of the same problems as a member of the Supreme Court of the United States. Through this comparison we can observe a number of basic attitudes which were manifested by Douglas both before and since he has joined the Court. Important among …

The Divisibility Of Warranties In Insurance Policies, Jerald H. Sklar

Vanderbilt Law Review

The doctrine of substantial compliance, and other rules of construction such as the rule calling for an interpretation of warranties as being promissory rather than continuing, are familiar and frequently applied. When applied in favor of the insured, the usual result is to find that the insured has not breached the warranty. This note deals with a less frequently employed tool of beneficent interpretation and one whose thrust is different, the divisibility of warranties. The doctrine of divisibility does not result in a finding of "no breach"; instead it admits the breach, but deems it immaterial because it is not …

Chief Justice Taft At The Helm, Alpheus T. Mason

Vanderbilt Law Review

The office of Chief Justice carries scant inherent powers. The Chief Justice manages the docket, presents the cases in conference, and guides the discussion. When in the majority, he assigns the writing of opinions. Whatever influence he exerts in the exercise of these prerogatives rests less on formal authority than on elusive personal characteristics. Charles Evans Hughes, who had served as Associate Justice from 1910 to 1916 and later had been able to observe Taft's role in the Court over a period of seven years, considered the Chief Justice "the most important judicial officer in the world." His actual power, …

Salmon P. Chase: Chief Justice, David F. Hughes

Vanderbilt Law Review

This article is not an in-depth study of some aspect of Salmon P. Chase's career as Chief Justice. Nor is it a survey of his judicial career. Rather, it is an attempt to present an overall view of Chase as Chief Justice through an examination of a limited number of topics. Such an approach seemed appropriate, for the sweep of his days on the Court are not well enough known to make a detailed study of one aspect of his career particularly valuable, nor is enough known about him to make a summary more than an exercise in superficiality. In …

Chief Justice Waite And The "Twin Relic": Reynolds V. United States, C. Peter Magrath

Vanderbilt Law Review

In the landmark case of Reynolds v. United States, the United States Supreme Court held that a general law prohibiting polygamy did not abridge the religious freedom of members of the Mormon faith guaranteed by the first amendment. The author here explores the background of Chief Justice Waite's opinion in Reynolds v. United States: the tenets and development of the Mormon faith in the United States, the character of the Waite Court, and the sources and development of Chief Justice Waite's opinion in the case.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Fourteenth Amendment--Fifth Amendment Privilege Against Self-incrimination Applicable to States--Federal Standard Determinative

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Criminal Law--Habeas Corpus Relief Where Subsequent Decisions Reveal Prejudicial Error in Original Sentence

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Criminal Law--Probable Cause and Fourth Amendment Guarantees as Applied to State Parolees

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Criminal Law--Retroactivity of Mapp Exclusionary Rule

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Decedent's Estates--Res Judicata Effect Upon Heir Who Did Not Participate in Prior Will Contest

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Equity--Compulsory Medical Aid to Adult Who Objects on Religious Grounds

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Federal Courts--Vexatious Suit--Attorney's Fees as Element of Costs-Denial of Plaintiff's Motion to Dismiss With Prejudice

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Labor Law--Pre-emption--Applicability of Pre-emption Doctrine to Libel Action Arguably Subject to …

Legislation, Law Review Staff

Vanderbilt Law Review

College Disciplinary Proceedings

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Enforcement of Foreign Non-Final Alimony Decrees

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Legal Aid for Indigent Criminal Defendants

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Prenatal Injuries and Wrongful Death

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Truth in Lending

Book Notes, Law Review Staff

Vanderbilt Law Review

In his discussion of the traditional power framework within which the Supreme Court operates the author covers old ground, dealing with such matters as the jurisdictional limitations upon the Court, its law court function of making case by case determinations, and its self-imposed restraints as to when and how it will hear and determine a controversy. The second broad heading, entitled "Marshalling the Court," forms probably the most fascinating chapter in the book. The author is here concerned with the issue most vital to any policy-oriented Justice: How can he win and hold for his side at least four other …