Law Commons^™

The Role Of The American Bar Association In The Selection Of Federal Judges: Episodic Involvement To Institutionalized Power, Joel B. Grossman

Vanderbilt Law Review

One phenomenon of recent domestic politics has been the resurgence of the American Bar Association as a vital, and often influential, group in the political process as well as in the legal profession. There is no better characterization of this than the ABA's assumption of a lead position in a profession-wide campaign to improve the quality of judges selected for the several court systems in the United States. In a relatively short span of time, the ABA has grown from a group with a minimum of influence to one with a quasi-formal role in the federal selection process. Its success …

Tennessee Law And The Sales Article Of The Uniform Commercial Code, W. Harold Bigham

Vanderbilt Law Review

Although much of the interest engendered by the Uniform Commercial Code has centered around Article 9--Secured Transactions,and although Article 9 has been described as the heart of the Code, Article 2--Sales--is half again as long, is in many ways more iconoclastic,' and has precipitated perhaps more criticism than any of the other articles of the Code. Article 2 contains some innovations which are, at least upon initial impression, startling departures from traditional concepts of sales law, and it is therefore not surprising that there has been a spate of legal literature published on various aspects of this article. Since limitations …

Creditors' Rights And Security Transactions -- 1963 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Mechanics Liens

Hammer-Johnson Supply, Inc. v. Curtis,' presented a new aspect of the recurring question of the duty of a supplier of materials to apply payments from a known source to the debt incurred for that source.

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Assets Available to Creditors

In re Jennings' presented the question of whether the proceeds from a medical payment clause of a liability insurance policy are free from the claim of creditors.

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Miscellaneous

In Murdock Acceptance Corp. v. Jones, a deed of trust was executed by Jones and his wife to secure payment of "$5000.00, together with any and all other indebtedness …

Insurance -- 1963 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

1. Definition of "Temporary Substitute Automobile." Defendant issued a public liability policy covering insured's use of a described vehicle (a 1955 Ford) as a taxicab. The policy contained a standard temporary substitute automobile clause, covering a non-owned auto-mobile "while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its break-down, repair, servicing, loss or destruction."

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2. Application of Automobile Policy Liability Limits. A husband and wife (hereinafter H and W) were injured in an accident caused by the insured. In their actions against the insured W was awarded 4,500 dollars and H …

Torts -- 1963 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The elements of a valid cause of action in negligence are specifically enumerated by Justice Holmes of the Tennessee Supreme Court in the case of Ruth v. Ruth:

1. A duty of care owed by the defendant to the plaintiff.

2. A failure on the part of the defendant to perform that duty.

3. An injury to the plaintiff resulting proximately from the defendant's breach of that duty of care.

This outline will be used for the treatment of general questions of negligence, and particular fact situations will then be subsequently treated.

New Approaches By The Fpc / Scope Of Judicial Review, Charles E. Mccallum, Joel Porter

Vanderbilt Law Review

New Approaches By the FPC to the Regulation of Natural Gas Producers: an Evaluation

Since 1954 the independent producers of natural gas have been regulated by the Federal Power Commission, operating under the Natural Gas Act' as construed by the Supreme Court in the Phillips case. The results of this regulatory activity have been frustration and delay. Recently the Commission has taken steps to relieve some of its miseries. It has instituted a new approach to producer regulation, area pricing,and it has by regulation outlawed the use of certain contract provisions, indefinite price adjustment clauses, deemed especially harmful to the …

Legislation, Law Review Staff

Vanderbilt Law Review

LEGISLATION

Disposition of Unclaimed Dividends and Shares--Distributions from Interstate Business Associations

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Conflict of Laws Problem and Judicial Response

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Water Pollution--State Control Committee

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Comparison of Several Existing Pollution Control Acts

Communications Satellites--Progress And The Road Ahead, Bernard G. Segal

Vanderbilt Law Review

The declared policy of the United States is the establishment of a global system of communications satellites which will serve our needs and those of other countries, which will permit the participation of all nations, and which will contribute to world peace and understanding." Such a system, President Kennedy stated, is a vital element in the march of civilization. For lawyers to have a meaningful understanding of the developments in this new and important endeavor requires some understanding of the basic technology of communications satellites, of applicable legislation, and of the international problems involved. This article will attempt to present …

Contracts -- 1963 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Both the one year provision and the sale of goods provision of the Statute of Frauds were construed in Anderson-Gregory Co. v. Lea.'Regarding the duration of the contract, the facts in the opinion are somewhat sparse... The court held that the contract did not come within this provision of the statute. If a contract could have been performed, under its terms, within a year from the time of its making, it is not within the Statute of Frauds, even though it is improbable that the contract would be performed within a year.

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The Tennessee Supreme Court case of Oman …

Case Comments -- Federal Estate Tax -- Losses Arising From Sale Of Property To A Corporation By An Estate Not Disallowed By Section 267, Law Review Staff

Vanderbilt Law Review

Decedent died testate in 1955, leaving 2,500 shares of stock of the Leader Building Company in her gross estate. Her three sisters were the legatees in equal shares of the estate, and they were also beneficiaries of separate trusts which owned the remaining 7,500 shares of the company.' In order to raise enough funds to pay the Federal Estate Tax, the estate, petitioner herein, had to sell some of the stock. Accordingly, the corporation redeemed about half of the shares held by the estate, which thereby sustained a net capital loss. Petitioner sought a deduction of this loss, in order …

Agency--1963 Tennessee Law, John S. Beasley, Ii

Vanderbilt Law Review

The Union Carbide and Ferguson cases were suits to recover Tennessee sales taxes and use taxes paid under protest for 1956 and 1958. Carbide and Ferguson urged that since they were under contract to the Atomic Energy Commission, the legal incidence of the tax was on the United States directly and therefore invalid. Carbide had been secured in 1943 to manage and operate certain plants involved in work on the atomic bomb, and Ferguson had subsequently been engaged to build additional facilities for this purpose. Both contended that their relationship with the United States and the Atomic Energy Commission was …

Business Associations--1963 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

Section two of the act creating Tennessee's new Law Revision Commission charges that body with the duty to study and report to the next legislature on "the laws governing the organization and operation of corporations, partnerships and other forms of business and social endeavor." The study is now roughly a year old and is reportedly making good headway. Since much of our law of business organizations may therefore be changed in the near future, this Survey has been abbreviated as much as possible.

The Powers Of Shareholders Of A Societe Anonyme, David J. Supino

Vanderbilt Law Review

French corporation law,which is primarily statutory, has seen no comprehensive statutory revision in almost a century; and while literally dozens of amendments have been engrafted on to the basic corporate legislation of 1867, they are for the most part ad hoc legislative resolutions of particular problems which betray no underlying unity of design and which have broken the unity of the old legislation. The result is that the law is Janus faced, and the theories which the law embodies are not wholly in accord with social and economic needs.

In this necessary process of assimilating new insights into the law …

An Analysis Of Insurable Interest Under Article Two Of The Uniform Commercial Code, John M. Stockton

Vanderbilt Law Review

The basic requisite of an insurable interest pervades all types of insurance contracts.' The reason most commonly given to justify this requirement is that in the absence of such an interest the agreement is no more than a common wager. A second reason is that the absence of an insurable interest might encourage the insured willfully to destroy the property (or life) of the insured. Despite universal recognition of its need, insurable interest is a term of indefinite meaning. This is evidenced by the many opinions in which courts have had difficulty in determining the existence of such an interest. …

Evidence -- 1963 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The doctrine of judicial notice is that an indisputable proposition of fact or a proposition of law of the jurisdiction is not subject to proof. The doctrine thus serves to relieve the litigant of the burden of proving certain facts and law, and is one of immense theoretical implication for the trial lawyer. A fact which is judicially noticed has much greater probative value than a fact which is proved, no matter how strong the proof. Judicial notice thus offers the trial lawyer an extremely effective, but apparently largely unused, device in litigation. None of the cases involving judicial notice …

Real Property - 1963 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

I. DEEDS

A. Construction

B. Suit to set aside deed

C. Restrictive covenants

II. TITLES

A. Easements

B. Actual Possession as Notice to Purchaser

III. EMINENT DOMAIN

A. Right to Incidental Damages

B. Value of Fee and Leasehold

C. Determination of Area Condemned

D. Liability of City for Land Condemned

E. Procedural Problems

IV. LEGISLATION

Corporations Insuring Employees' Lives, E. Ralph Cotham, Iv

Vanderbilt Law Review

The Sixth Circuit Court of Appeals' in 1959 reversed a tax court holding that a life insurance contract taken out by a corporation to insure an employee's life was a wagering contract because neither the corporation nor the beneficiary possessed an insurable interest in the employee's life and that the proceeds were thus not excludible as an amount received "under a life insurance contract." In 1964 the Fifth Circuit Court of Appeals affirmed a federal district court's judgment entered on a jury's verdict that a corporation, which was both owner and the beneficiary of a life insurance policy, had no …

Book Reviews, Elliott E. Cheatham, George Rossman

Vanderbilt Law Review

Lawyer and Litigant in England: The Hamlyn Lectures, 1962

By R.E. Megarry

London: Stevens & Sons, Limited, 1962. Pp. x, 205.

reviewer: Elliott E. Cheatham

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The Language of the Law

Boston: Little,Brown & Co., 1963. Pp. xiv, 526. $12.50.

By David Mellinkoff

reviewer: George Rossman

The Abstention Doctrine: A Problem Of Federalism, Joyce Britt

Vanderbilt Law Review

Equitable abstention refers to the deference a federal court will give a state tribunal to determine the rights of the litigants, even though technically, a federal court could entertain the action, whether by means of diversity of citizenship or because of a federal issue involved. Because of comity, or convenience, or a sense of balance in the federal system, or better handling of the problem, or some other reason of policy, federal courts at times have required a litigant to proceed in the state courts before invoking federal court jurisdiction. How this doctrine arose, its extensions and limitations form the …

Corporations -- Effect Of Statements Made In Stock Prospectus, Law Review Staff

Vanderbilt Law Review

In the case of United Funds, Inc. v. Carter Products, Inc.,' the City Circuit Court of Baltimore, Maryland, handed down a decision which" broke new legal ground." The case, involving the effect of statements made in stock prospect uses on a corporation's future actions, has provoked surprisingly little discussion by legal commentators, and none at all on the "new" ground it broke. The purpose of this comment is to examine the Carter Products decision, to attempt to place it in proper legal perspective, and finally to evaluate it as a new development in the law.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--FTC Proceeding Will Not Toll the Statute of Limitations in an Action Under Section 4(b) of the Clayton Act

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Conflict of Laws--Where None of the Beneficiaries Reside in Forum State, Limitation on Amount of Recovery Imposed by State Where Tort Occurred Governs

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Criminal Law--Double Jeopardy--Conviction of Greater Degree of Offense on Retrial

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Federal Rules of Civil Procedure--No Requirement that Agent Appointed To Receive Service of Process be Expressly Bound To Give Notice to Principal

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Labor Law--NLRA--Union's Duty To Represent Fairly

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Labor Law-Walsh--Healey Act--Secretary of Labor Not Authorized To Set More Than One Prevailing Wage

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Tennessee Law And The Secured Transactions Article Of The Uniform Commercial Code, Charles H. White

Vanderbilt Law Review

The Uniform Commercial Code in its treatment of personal property security represents a sincere and conscious effort on the part of its draftsmen, authors and sponsors to update and modernize commercial law so as to be able to keep abreast of today's space-age economy. It is submitted that once a familiarity with the new terms,concepts, and theories is acquired, the average practitioner should not encounter any serious difficulty operating under the Uniform Commercial Code and will, in all probability, discover that in most instances the ideas are the same, although perhaps a little hard to recognize at first examination.

Conflict Of Laws--1963 Tennessee Survey, Elliott E. Cheatham

Vanderbilt Law Review

The most important development in conflict of laws for many years is the enactment of the conflict of laws provisions of the Uniform Commercial Code.' In adopting these provisions the General Assembly did much more than to fix the law for the specific matters covered, important though these are. The General Assembly rejected one widely urged method of choice of law, and it prescribed a wholly different one. It rejected the old vested rights theory which calls for the use of the law of the place of the last element of a transaction to govern the case, as, the place …

Restitution - 1963 Tennessee Survey, J. Brad Reed

Vanderbilt Law Review

Constructive trusts are related to the field of trusts in somewhat the same way that quasi-contracts are today related to the field of contracts-in misnomer only. A judicial declaration of a constructive trust means simply that the holder of legal title to the property affected, must convey it to the person for whose benefit the constructive trust is declared.' The primary efficacy of this equitable remedy is that it gives the successful complainant a preference over all the defendant's creditors; its theory is not that the complainant is trying to reach the defendant's property, but rather that the property which …

Developments In Space Law, Albert Gore

Vanderbilt Law Review

A democratic society could not long endure without the voluntary support of its citizens of application of legal proceedings for settlement of disputes. Perhaps few take the time to consider the extent to which our daily lives are affected by the judicial machinery which a free people have established. Here I refer not merely to the deterrent effect of criminal laws by which we deal with offenses against society. I refer also to our system for the legal settlement of controversies arising between individuals. After all, without our courts and our lawyers, questions involving tort and breach of contract would …

The Financing Of Benefits In Unemployment Insurance, Ernest J. Eberling

Vanderbilt Law Review

The current federal-state unemployment insurance system has been in operation throughout the country for over a quarter of a century. As one of the two major social insurance programs created by the Social Security Act of 1935, it has become generally accepted as one of the nation's most important measures against the privation of unemployment and as a stabilizer of the economy in helping offset the down drag on economic activity resulting from excessive joblessness. Despite its general acceptance, however, it has been subjected to vigorous controversy in recent years. Criticism of the program has focused largely upon two issues, …

Law And Literature--A Comment, Harvey Couch, Iii

Vanderbilt Law Review

The author here examines the ways in which law and literature complement each other; legal settings providing dramatic backdrops to fine literature and literature serving to familiarize lawyers with writing style as well as the moral sentiments of the people expressed in literature. Yet law and literature need not remain distinct entities, but blend together in certain works of such authors as Hand, Camus, and Prettyman, providing, perhaps, the lawyers most enjoyable reading.

Constitutional Law -- 1963 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

A 1963 survey of Tennessee cases having to do with various issues of constitutional law, including legislative apportionment, desegregation, equal protection and due process.

Decedents' Estates, Trusts And Future Interests -- 1963 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

Three interesting cases represent significant developments in the laws concerning the distribution of amounts received by the administrator in wrongful death actions, two' of which arose under the Tennessee wrongful death statute and the other arising under the Federal Employers' Liability Act. The two cases arising under the Tennessee statute were problems of somewhat first impression,reasoned upon analogy, and the case arising under the federal statute resulted in the Tennessee Supreme Court overruling its prior decision.

State And Local Taxation -- 1963 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Excise Tax--Entire Net Income of Domestic Corporation Engaged in Multistate Operations Attributable to Tennessee

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II. Privilege Tax as Applied to Foreign Corporation--Orders Solicited in State Accepted in Foreign State

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III. Applicability of Tax for Privilege of Doing Business to Foreign Corporation--Sufficiency of Local Activity

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IV. Use Tax--Exclusion if Subject to Sales Tax

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V. Franchise Tax--Leased Property Included in Measure

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VI. Privilege Tax on Persons Engaged in Business of Collecting Accounts--Deductability of Attorney's Fees from Gross Collections

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VII. Ad Valorem Tax--Applicability to Non-Domiciliary Interstate Motor Carriers

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VIII. Exemption of Religious Institution from Property …