Law Commons^™

Justice William 0. Douglas And The Concept Of A "Fair Trial", Helen S. Thomas

Vanderbilt Law Review

This article seeks briefly to demonstrate the ways in which this basic commitment of Justice Douglas bear on particular constitutional issues, particularly with regard to criminal cases. The article treats these issues under five general headings: detention; the right to counsel; bail; the right to trial by jury; and trial procedures. Some overlapping between sections cannot be avoided; but it is hoped that this organization will bring the problems more sharply into focus.

Experience Or Reason: The Tort Theories Of Holmes And Doe, John P. Reid

Vanderbilt Law Review

Oliver Wendell Holmes is credited with awakening the American bar to the utility of tort theory. The author here emphasizes the contributions to tort theory made by a Chief Justice of the New Hampshire Supreme Court, Charles Cogswell Doe, during the latter half of the nineteenth century and compares and contrasts the tort theories of Holmes and Doe through analysis of the judicial opinions and other writings of each man.

Justice Murphy: The Freshman Years, Woodford Howard

Vanderbilt Law Review

Justice Murphy is commonly regarded as having been a libertarian activist. He was not highly regarded as a Justice during his lifetime and this opinion prevails today. Here Professor Howard sees Justice Murphy during his early years on the Supreme Court as a man of indecision rather than an uncompromising libertarian. Through an examination of first amendment cases between 1940-42, the author finds that Murphy displayed a common reaction to the responsibilities of a new Supreme Court Justice which differed from most only in intensity.

Justice Joseph Story: A Study Of The Legal Philosophy Of A Jeffersonian Judge, Morgan D. Dowd

Vanderbilt Law Review

Few studies have sought to explicate the legal philosophy of Joseph Story despite his enormous reputation as scholar, Supreme Court justice and professor at the Harvard Law School. Worse still, there has been little critical analysis of nineteenth-century concepts and statements of the law.' The purpose of this essay, then, is to examine the validity of Story's legal theories and to evaluate his work as a major contributor to American public law. As a result of this study,it is hoped that progress can be made toward a greater understanding of the man, the justice, and his philosophy of law.

Book Review, Allison L. Scafuri

Vanderbilt Law Review

The intellectual force in this scientifically and technologically oriented century, as Gatland and Dempster indicate, resides with men who have renaissance minds that can ably embrace scientific as well as societal propositions, reason anew and reach unique and far-reaching conclusions beyond the realm of current thought. To date, the intellectual strength of the lawyer has been his pervading understanding of problems from every societal view. This test can remain valid; however, the province of the legal "skill-elite group"must range far beyond his traditional social science touchstones into decidedly esoteric scientific subjects. The horizon of jurisprudence now embraces the mechanical universe …

Justice Brewer And Substantive Due Process: A Conservative Court Revisited, Robert E. Gamer

Vanderbilt Law Review

From the heat of ideological battle which has accompanied the emergence of America into the status of a capitalistic society, late nineteenth century conservatives have emerged in many circles with a reputation for being selfish, profit-hungry individuals attempting to hide their rapacity under a cloak of pleasant platitudes and private charity. In addition to falling under this less-than-favorable shadow, those of this breed who presumably came to cluster about the Supreme Court of the United States have been attacked by liberals for subverting the Constitution of the United States into an instrument to serve the acquisitive interests of the capitalists …

Book Note, Law Review Staff

Vanderbilt Law Review

Mr. Stringfellow strikes hard at the indifference of the legal profession to the plight of the poor before the bar. Usually, they are "simply not represented at all," much less honestly or effectively. He attributes this to three factors: the expense and time usually involved in the legal process, charlatan lawyers who exploit the poor, and the poor man's image of the law derived from police brutality. The police are the poor's most frequent contact with the law, and "the image that they see when they see the law in action is of the law as an enemy." Mr. Stringfellow …

The Question Of Union Activity On Company Property, William B. Gould

Vanderbilt Law Review

Trade unionism is not an accepted principle in this country today...

The National Labor Relations Act maintains an encouragement of its "practice and procedure" as a basic policy of the United States. Yet there is a pronounced disparity in atmosphere between many established collective bargaining relationships and industries or regions which are nominally unionized or unorganized. Since Congress has chosen to proscribe a good deal of picketing of an organizational and recognitional nature in the Landrum-Griffin amendments to the act it is quite likely that the grounds for union-management combat will shift in this area somewhat to less specifically regulated …

Reflections Upon Hegel's Concept Of Property, Contract, Punishment, And Constitutional Law, Morris D. Forkosch

Vanderbilt Law Review

Codification and re-codification in federal and state jurisdictions has proceeded in a geometrical progression these past decades. To what extent is the old law yielding or, au contraire, to what extent is the ancient law reappearing? For example, are Plato's views on crime and punishment being revived, continued, or changed?' Or,to what extent are Hegel's views in a certain few legal areas of present interest and value? As we shall see, an understanding of Hegel's juris-prudential views, as related to specific topics, is a present-day pragmatic necessity. We propose to seek these views, albeit briefly, in the fields of property, …

Book Reviews, Ronan E. Degnan, Jerold Israel, Robert F. Drinan S.J.

Vanderbilt Law Review

Cases and Materials on Debtor and Creditor

By Vern Countryman

Boston: Little, Brown & Co., 1964. Pp. lxiii, 841. $12.50.

reviewer: Ronan E. Degnan

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The Supreme Court on Trial

By Charles S. Hyneman

New York: Atherton Press, 1963. Pp. IX, 308. $6.50.

reviewer: Jerold Israel

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Religion and American Constitutions (1963 Rosenthal Lectures)

By Wilbur G. Katz

Northwestern University Press 1964. Pp. 114. $3.50.

reviewer: Rev. Robert F. Drinan, S.J.

The Establishment And Administration Of Pension Plans In The Labor Relations Process, Robert J. Hickey

Vanderbilt Law Review

The purpose of this article is to analyze the role of pension plans' in the labor relations process. The earliest pension plans had their origin in the early nineteenth century and were pioneered by fraternal associations established and operated by and for the employees. The advent of unions on the labor scene resulted in the union, instead of the fraternal association, administering the program. As for employer pension plans, the union leaders feared that such programs were only a devious employer's device to prevent unionization. Thus, prior to World War II, employer pension plans were usually unilaterally instituted. However, beginning …

Legislation, Law Review Staff

Vanderbilt Law Review

Estate Tax--Marital Deduction--Compliance With Revenue Procedure 64-19

In those cases where an executor or trustee is directed by the governing instrument to satisfy a pecuniary bequest or transfer in trust by a distribution of the property in kind,' with assets at values as finally determined for federal estate tax purposes, there is the possibility that the surviving spouse will receive property the fair market value of which at the time of distribution is less than the amount of the marital deduction.

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Voting Rights--Residence Requirements for Voting in Presidential Elections

It seems safe to conclude that the choosing of presidential …

Immunity Through Confession?, John A. Spanogle Jr.

Vanderbilt Law Review

Does this advice from Judge Leonard P. Moore sound fanciful? Could it ever profit a criminal to confess his guilt? The advisability of such action may not be as improbable as it sounds. In order to determine whether it is fanciful or not it is necessary to review several cases decided by the United States Supreme Court, which this article will undertake to do.

Credit Unions--Regulatory Control Development--Problems--Recommendations, Charles D. Matthews

Vanderbilt Law Review

An awareness of the credit union, its economic and social impact,has a special significance to the lawyer. Although such significance appears minimized by a dearth of litigation addressed to credit unions in the past, this is not a true reflection of fact; nor would a true history of credit union litigation be a guide to the future. The lack of identifiable credit union litigation is chiefly due to the lack of appreciation by the bench for the distinguishing features of savings and loan associations, commercial banks, and credit unions. Two prospective developments should cause increased attorney contact with credit unions. …

Federal Power To Seize And Search Without Warrant, Philip M. Carden

Vanderbilt Law Review

Mr. Garden here explores the history and development of the power of federal officers to seize and search without warrant. The study is divided into the power to search persons, places, vehicles, and to seize things The author concludes that, with a limited exception, no federal power of search or seizure of persons or property without prior special warrant can be derived from the federal constitution. Finally, the author suggests that the Supreme Court may refuse to follow its dicta upholding the federal power to search and seize without warrant if the proper case is brought before it.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Consignment Agreements To Fix Retail Prices

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Constitutional Law--Fifth Amendment-Denial of Passport

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Constitutional Law--State Procedure To Determine The Voluntariness of a Confession

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Criminal Law--Statutory Rape-Good Faith, Reasonable Belief That Female Has Reached Age of Consent as a Defense

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Insurance--Validity of Policy Provision Permitting Insured To Choose Forum for Determination, of Disputes Under the Policy

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Labor Law-Closing of Plant Due to Unionization

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Labor Law--National Labor Relations Act--Strike by Minority of Union as Protected Concerted Activity When in Support of Union Position

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Labor Law--National Labor Relations Act--Union's Duty of Fair Representation Not Implicit in Section 7--Discrimination …

A Tale Of Two Cases, William H. Agnor

Vanderbilt Law Review

Professor Agnor here traces the development of what he suggests is a bad rule of law which originated in a poor decision of a jurisdiction highly respected for its decisions on the law of future interests. The author's demonstration of how the case has been blindly followed by both bench and bar underscores his message that members of the legal profession must not rely on encyclopedic statements of the law without an examination into the policies and problems involved.

Raising The Perpetuities Question: Conception, Adoption, "Wait And See," And Cy Pres, Robert J. Lynn

Vanderbilt Law Review

Applying the orthodox, the "wait and see," or the cy pres version of the Rule Against Perpetuities presupposes analyzing the limitations in the dispositive instrument as of the time of their creation to determine whether any gifts are future, whether any future gifts are remainders or executory interests, and whether any remainders or executory interests are contingent. If a contingent future interest might vest, if it vests at all, at a remote time, it is bad ab initio under the orthodox form of the Rule. That being so, the perpetuities question may properly be raised at the time the contingent …

Removal Of Future Interest Encumbrances--Sale Of The Fee Simple Estate, Candler S. Rogers

Vanderbilt Law Review

The removal of future interest encumbrances on realty may in proper cases relieve hardship of private parties and be of benefit to the community by rendering the land marketable and productive. The author here examines the scope of equity jurisdiction in these cases and the applicable statutes. The author concludes with proposals to improve the statutory treatment of the problem and suggests that equity already has the power to provide the relief contained in his statutory proposals.

Introductory Essay On The Literature Of Future Interests, Roy M. Mersky

Vanderbilt Law Review

The general practice of law involves, among other things, the drafting of wills and trust agreements and the litigation of cases arising out of such instruments as drawn by other lawyers. Successful practice in this field is predicated upon adequate training in the law of future interests. This difficult and technical branch of law contains rules and procedures which are understandable only in the light of their historical background

Land Use Planning For Industrial Development, Peter J. Winders

Vanderbilt Law Review

For many reasons, a political unit may decide to undertake a program of encouraging the establishment of industry within its borders. This may be effectively done by informing entrepreneurs of the locational advantages which sites within the jurisdiction offer and by increasing the attractiveness of the sites. Research necessary to provide industry with information about possible plant sites and resources will provide part of the data from which projections may be made as to future development of the area. When such projections indicate that an area is one which will in the future be a desirable location for industry, steps …

Group Legal Services: The Bench, The Bar, And The Brotherhood, Law Review Staff

Vanderbilt Law Review

The bar has long sought to make legal services readily available to all persons whatever their situation. Thus, the bar has sponsored legal aid societies and lawyer referral systems, and has promoted neighborhood law offices. These methods all meet the bar's traditional individualistic view that the attorney-client relationship should be direct without any third party interference. However, the lay public, often bewildered by a myriad of unfamiliar names in the yellow pages, continues to seek means of securing legal services more cheaply, more efficiently, and more reliably. Group legal services--whereby an organized group procures legal services for its individual members--are …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Violation of Section 7 of the Clayton Act by Joint Venture

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Civil Rights--Anti-discrimination Law as a Vehicle for a Private Civil Action

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Condemnation--Landowner Cannot Recover From Federal Government for Damages Caused Before Date of Taking Where Government Did Not Previously Contemplate, Condemning Property

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Constitutional Law--Loss of Nationality--Foreign Residency Statute Held Violative of Due Process

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Constitutional Law--Reapportionment--Both Houses of a State Legislature Must Be Based as Nearly as Is Practicable on Population

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Constitutional Law--Twenty-first Amendment--Scope of State Power Over Intoxicants Moving Within Its Borders

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Evidence--Statutory Presumptions--Reasonableness Is Implicit in Test of Rational Connection

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The Art Of Interpretation In Future Interest Cases, Daniel M. Schuyler

Vanderbilt Law Review

Man's quest for an absolute, for a definition of "good," for the meaning of "justice," carries us back to the beginnings of philosophy. And although these concepts are as elusive as the Questing Beast pursued by King Pellinore in T. H. White's delightful book, The Once and Future King, the history of mankind indicates that the curiosity of thoughtful persons is insatiable and that the search will not end. It continues daily before our eyes-in mathematics, astronomy, medicine, psychology, sociology, economics, philosophy, and other disciplines not the least of which is law. Even Holmes, the supposed skeptic, who rejected absolutes' …

Legislation, Law Review Staff

Vanderbilt Law Review

Budget Planners--Regulation To Protect Debtors

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Criminal Law--Taxation of Court Costs

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Statute of Limitations--Professional Negligence--Foreign Objects Left in Patient's Body

Perpetuities: Cy Pres On The March, W. Barton Leach

Vanderbilt Law Review

The standard doctrine has been that where an interest may vest too remotely the entire interest is stricken down; and this destructiveness is multiplied by the all-or-nothing rule of Leake v. Robinson which declares that the invalidity of a gift to any member of a class invalidates the gifts of all other members. It is the thesis of this paper that the penalty for violation of the Rule--a penalty inflicted, not on the violator, but on his or her intended beneficiaries, usually minors or unborns--should be, not the invalidation of the future interest, but rather a tailoring of the interest …

Commercial Transactions And Personal Property--1963 Tennessee Survey, John A. Spanogle, Jr.

Vanderbilt Law Review

Obviously, the biggest event in the Tennessee law of commercial transactions this year was the enactment of the Uniform Commercial Code [hereinafter referred to as the U.C.C.]. That statute became effective in this state on July 1, 1964. Its effect on the prior Tennessee law is discussed in great detail elsewhere in this issue,' and need not be re-examined here. It should also be pointed out that the enactment of the U.C.C.required some modifications in the criminal statutes relating to security agreements. In particular, executing a second security agreement covering personalty, without disclosing a prior security agreement covering the same …

Procedure -- 1963 Tennessee Survey, William I. Harbison

Vanderbilt Law Review

In two important decisions rendered during the survey period the Tennessee Supreme Court considered some of the aspects of joinder of actions under present circuit court practice. In the first of these, Necessary v. Gibson,' plaintiff joined a count for personal injuries resulting from defendants' alleged negligence with a count seeking recovery in contract based upon alleged promises of defendants to pay plaintiff for her injuries and expenses arising out of the same accident.

Domestic Relations -- 1963 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

During 1963, the Tennessee Supreme and Appellate Courts faced a wide variety of problems in the domestic relations field, but handed down no decisions of outstanding significance. The legislature made several minor revisions in relevant statutes, one of which may prove to be a rather important change in this state's divorce law.

Criminal Law And Procedure -- 1963 Tennessee Survey, Robert E. Kendrick

Vanderbilt Law Review

1. Homicide. A number of years ago the Tennessee Supreme Court adopted the common law principle that one is justified in taking life in defense of his habitation when actually or apparently necessary to repel an attempt by another to enter forcibly or violently under circumstances creating a reasonable apprehension that the assailant's design is imminently to commit a felony therein or to assault or offer personal violence or inflict personal injury on an inmate so that there are reasonable grounds for concluding that life is endangered or great bodily harm is threatened thereby.'

Flippen v. State, a homicide case, …