Law Commons^™

Labor Law -- 1963 Tennessee Survey, Paul H. Sanders, Harvey Couch

Vanderbilt Law Review

I. ARBITRATION PROCESS

An active area of litigation today is concerned with the interrelation of the judicial process and the arbitration process in the settlement of labor disputes. It was observed in last year's survey that the Supreme Court of the United States had "embarked on the project of fashioning a body of federal common law governing the enforcement of collective bargaining agreements"' since the landmark decision in the Lincoln Mills case.

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II. PICKETING

The Labor-Management Reporting and Disclosure Act of 1959 amended section 8(b) of the National Labor Relations Act to make it an unfair labor practice for …

Trade Regulation -- 1963 Tennessee Survey, Leo J. Raskind

Vanderbilt Law Review

In two cases, McKesson & Robbins v. Government Employees Department Store, Inc.,' and its companion, Plough, Inc. v. Hogue & Knott Super Market, the challenge to resale price maintenance, already successful in twenty-three other states, was brought to the Tennessee Supreme Court by appeals from two opinions holding the Tennessee Fair Trade Law unconstitutional. The historical background of fair trade legislation and the national controversy surrounding it since 1951 provide essential elements of perspective for consideration of these two cases.

The First Amendment And The Judicial Process: A Reply To Mr. Frantz, Wallace Mendelson

Vanderbilt Law Review

Cut loose from its foundation in the distinction between discussion and incitement, the clear and present danger test lost its rational meaning and became a cloak for "vague but fervent transcendental-ism." In short, the activists destroyed it as an intelligible guide to decision-and then abandoned it about a dozen years ago. Meanwhile they have tried, and apparently discarded, one "new" verbalism after another. The latest is Mr. Justice Black's absolutist concentration on two untroubled words in the first amendment: "no law." This gambit--"no law means no law"--again begs all the difficulties simply by ignoring them. As Dean Griswold has suggested, …

A Breakthrough On Presidential Inability: The Aba Conference Consensus, James C. Kirby, Jr.

Vanderbilt Law Review

As a marriage of the two proposals which have the greatest past acceptance, the consensus recommendation should receive widespread acceptance. It meets the objections which the Kennedy administration had to the Eisenhower proposal and the objections of supporters of the Eisenhower plan to the enabling amendment. It does not appear to be subject to any legitimate criticism which executive branch spokesmen have leveled in the past at proposed amendments. The method by which it evolved should indicate widespread acceptance in academic and professional circles.

Executive support continues to be the key. Experience has shown that no proposal so intimately concerned …

The Effect Of White Motor Co. On Exclusive Selling Arrangements, Jack R. Hlustik

Vanderbilt Law Review

At present, the status of exclusive selling arrangements with territorial and/or customer limitations is unsettled. Since these arrangements are not illegal per se, a full trial is necessary to adjudge their validity. Future courts, enlightened by the arguments of lawyers, the analyses of commentators, and the testimony of numerous expert witnesses, will be in a better position to formulate policies and establish guidelines in this area. Legislative proposals may be submitted to Congress to eliminate this uncertainty. Hasty legislation in this area would be unwise, however, for legislative experience in this area, like judicial experience, is limited.

The Waite Court And The Fourteenth Amendment, Howard J. Graham

Vanderbilt Law Review

Underscoring so much while leaving so much unsaid, this book is a powerful plea for post-1937 trends and constructions--not merely in the Supreme Court, but now in Congress. How does the nation, the Court, the Congress, make good a lost century? Chief Justice Waite's triumph--decidedly more modest in my estimation than in Dr. Magrath's--was that he dared, tried, succeeded--at least by half. The country's failure was that it so long did not--has not yet--even by half. Twenty years and three constitutional amendments after emancipation too many of our forebears, including all members of this Court except the former Union colonel …

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Attorneys--Violation of Canon 27 by Encouraging or Permitting Favorable Publicity

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Constitutional Law--Dismissal of Criminal Charges Because of Deprivation of Right to Effective Counsel by Eavesdropping

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Criminal Law--Credit Card Invoice as a "Security" under National Stolen Property Act

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Criminal Law--Rights of Alleged Parole Violator at Revocation Hearing

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Labor Law--Federal Procedure--Right to Jury Trial under Section 17 of the Fair Labor Standards Act

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Labor Law--Representation. Elections--Provision on Ballot Allowing Vote for "No Representation"

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Labor Law--Unfair Labor Practice--Availability of Injunction Prior to Exhaustion of Administrative Remedies

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Taxation--Federal Estate Tax--Survivor's Annuity as Insurance Under Section 2039 a …

The Municipal Corporation And Conflicts Over Extraterritorial Acquisitions: The Need For Land Planning, Robert Phay

Vanderbilt Law Review

The conflicts which arise between different governmental units involve questions of power, loss of revenue, inconsistent zoning statutes,and actions challenged as arbitrary. However, basic to all these conflicts is the problem of conflicting desires for land use. In other words,any challenge made to a proposed taking is one in which the political unit affected by the taking objects because of supposed injury to its own development, interests, or present governmental functions. The problem can thus be seen as actually concerning the proper allocation of land-a study in land planning, the ultimate objective being, ac-cording to McDougal and Rotival, "the creation …

Legislation, Law Review Staff

Vanderbilt Law Review

Administrative Law--The Scope of Official Notice

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Associations--Definition of Cooperative

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Full Faith and Credit--Procedures for Enforcement of Foreign Money Judgments

The Use Of Coerced Confessions In State Courts, J. A. Spanogle

Vanderbilt Law Review

It is now well settled that involuntary confessions must be excluded from evidence in all criminal trials in state courts. It has been difficult, however, to distinguish a voluntary confession from an involuntary one, because the term "involuntary" is not well defined. This lack of definition, which creates great problems for state trial and appellate courts in attempting to apply the rule to individual cases, has, in turn, stemmed from a lack of understanding of the reasons for excluding involuntary confessions. The United States Supreme Court has handed down thirty-four coerced confession cases, holding confessions admissible in some factual situations …

A Survey Of The Fraudulent Conveyance In Bankruptcy, Paul J. Hartman

Vanderbilt Law Review

No debtor should be permitted to conceal or dispose of his property for the purpose of preventing his creditors from satisfying their legal claims. In ethical terms which have become classic, a debtor should be just to his creditors before he can rightfully be generous with his property for the benefit of others. The original and primary purpose of bankruptcy legislation has been, and continues to be, a just distribution of the bankrupt's property among his creditors.

To help effectuate the purpose of bankruptcy legislation, the fraudulent conveyance is of major importance in three distinct respects. In the first place, …

Book Reviews, Richard C. Allen, Lawrence D. Gaughan

Vanderbilt Law Review

In this little book, Leon Radzinowicz, Wolfson Professor of Criminology and Director of the Institute of Criminology at the University of Cambridge, presents a brief survey of criminology in England, the United States, and eight countries of continental Europe. His perspective is historical as well as geographical: in discussing each nation, he begins with a sketch of the concepts and personalities that lent vitality to the development of its criminological teaching and research and concludes with an analysis of the contemporary scene, based on his own first-hand observations during a recent world tour "in search of criminology."With so vast a …

Hart And Honore, Causation In The Law, John H. Mansfield

Vanderbilt Law Review

It is scarcely necessary at this date to give notice of the publication of Causation in the Law. Since its appearance four years ago the book has become widely known and has been much discussed by legal scholars, particularly in the fields of torts and criminal law. Doubtless it has received similar attention from philosophers, for it is a work that seeks to achieve something which is seldom attempted, and then with little success, namely, to combine legal and philosophical thinking in a way that secures the understanding and approval of both philosophers and lawyers by satisfying the analytical rigor …

The Role Of Law And The Function Of The Lawyer In The Developing Countries, Wolfgang G. Friedmann

Vanderbilt Law Review

In the majority of contemporary democratic societies, the role of the lawyer is important, in some cases (such as the United States) predominant. This is so partly because a democratic constitution and legal order--for all the differences between the various types of democracy--are based on a delicate and precarious balance of functions and powers, which makes the role of the lawyer, as a trained balancer, important. But it is also connected with the fact that in the formative era of modern democracies, especially throughout the nineteenth and early twentieth centuries, the predominant economic philosophy of democracy was that of laissez …

On Legal Stability And Change, Edwin W. Patterson

Vanderbilt Law Review

The paradox, "law must be stable and yet it cannot stand still,"expresses one of the basic metaphysical aspects of law. Is law a Being or a Becoming? Some would answer this question by saying that the law is always a Becoming, a part of the eternal flux of human actions and conditions. It is impossible, they may say, to enclose the law in a logical system of norms, however well sanctioned. The important things, then, are the motivations of the persons who effectuate legal change (assuming these persons can be pointed out, which is not always the case) or their …

The Behavioral Sciences, Stability, And Change, Donald Young

Vanderbilt Law Review

Estimation of the potential contribution of behavioral research to social stability and social change may be attempted only in over-simplified terms. The necessary simplification here will be accomplished by considering the core behavioral sciences alone, by taking the position that social stability and change are two aspects of a single social process, by assuming that the problem is not whether behavioral research can contribute to understanding of that process but how the contribution best may be made, and by limiting illustrative references mainly to the medical and legal fields.

The Contribution Of Professional Organizations To Stability And Change Through Law, Glenn R. Winters

Vanderbilt Law Review

The term "stability" pertains more directly to the physical sciences than to law. Offhand, one associates stability with rest and instability with motion. Gibraltar is stable; a rowboat in rough water is not.There can be, however, stable motion and precarious rest. The earth moves at more than a thousand miles a minute in a stable orbit, and a railroad train thundering down a smooth and level track at ninety miles an hour may have a high degree of stability. On the other hand, the mass of rock and earth that recently plunged into the water behind an Italian dam killing …

The Dedication, Harvie Branscomb

Vanderbilt Law Review

This is a day of rejoicing for all of those who love this University, for those who know the quality of this School, and for those who are aware of the role which a great school of law can play in the progress of this southern region. We are grateful to all of you for coming to help us celebrate this accomplishment, especially grateful to those of you who bring greetings from other schools of law, and for those of you who have had a part in this program and will have a part in it this morning. This day …

The Lawyer's Response To The Demand For Both Stability And Change Through Law, Orison S. Marden

Vanderbilt Law Review

We need not worry about the lawyer's response to the need for stability in the law. The average lawyer is a conservative chap who does not favor change unless the need for it has been proved to the hilt.Nor need we tender full apologies for this hardheaded attitude, for,as Judge Cardozo once said, "certainty and uniformity are gains not lightly to be sacrificed. Above all is this true when honest men have shaped their conduct upon the faith of the pronouncement." At times, however, we have allowed these considerations, important as they are, to outweigh even more compelling reasons for …

Challenge And Response In Family Law, Max Rheinstein

Vanderbilt Law Review

The invitation to write for this symposium on Stability and Change Through Law a short article about challenges and responses in the field of family law has been a challenge. I accepted it hesitatingly. The time limit allowed was too short to permit investigation or elaboration. However, it has given me an opportunity to express some judgments I have come to form in some thirty years of occupation with family law. With one exception all these judgments are based on general impression rather than systematic incisive research. A topic on which extensive research has been undertaken is that of divorce; …

Book Review, W. N. Ethridge, Jr.

Vanderbilt Law Review

The consummation of Llewellyn's particular interest in the craft of appellate judging was his classic The Common Law Tradition: Deciding Appeals, which he completed in 1960. After reading it,no appellate judge could decide a case or write an opinion without being affected to some extent by Llewellyn's method and criteria. He conceived of law as the product of a rational process. The traditional dichotomy of reason and experience are reconcilable by development of legal methods in a rational framework. This technique clarifies and supports the sociological jurisprudence of Holmes, Cardozo, and Brandeis.

Some Developments In Conflict Of Laws, Elliott E. Cheatham

Vanderbilt Law Review

The economy and the social systems of our country are national in character. From Maine to California, and now on to Hawaii and Alaska, goods and people move freely. The legal systems, in contrast, make a checkerboard, with each of the fifty states having its own laws and courts. In the international area, there is a distant parallel. South and west of the iron curtain there is increasing movement of goods and people across national frontiers, but the nations continue to cherish their legal differences. It is the responsibility of conflict of laws to deal with the interaction of the …

Stability And Change In Constitutional Law, Robert B. Mckay

Vanderbilt Law Review

Constitutional law, like other law, is rooted in the conservative tradition of the legal system as a whole and thus more willingly pays court to the muse of history and the force of precedent than to the muse of sociology and the demand for revision. It is therefore not surprising that lawyers read constitutions as law, in the ordinary meaning of that word, and that judges apply constitutional provisions as they do other law...

The Constitution of the United States was not cast in legal mold by accident, but by design that was itself the product of ineluctable history. A …

Technology, Prediction, And Disorder, Albert Wohlstetter

Vanderbilt Law Review

The topic assigned to me joins in a familiar way science and technology. Not long ago this would have been irritating to pure scientists,and in particular to someone studying abstract mathematics. The connection is appropriate, however, because science is not very pure. Even mathematical logic turns out, to the surprise of most of those practicing it twenty years ago, to be very useful in electronic brains. Science and technology have always been linked; and inseparably. As both Leonardo and Francis Bacon at the dawn of the age of science knew very well, knowledge is not only understanding and therefore good …

Economic Aspiration And Method, Jesse W. Markham

Vanderbilt Law Review

The topic I have chosen concerns the changing nature of organized economic enterprise, especially its social and legal environment. By organized economic enterprise I shall mean any economic entity in which decision-making is essentially composite rather than individual, of which business corporations and labor unions are the most obvious and, in terms of impact on the total economy, the most important. But by the criterion employed--decisions are essentially composite rather than individual--the average household consisting of at least one wife and husband surely falls within its ambit. Nor do I mean to imply that organized economic enterprise can be assessed …

Legal Institutions And Social Controls, Philip Selznick

Vanderbilt Law Review

When the architects of this program asked me to discuss non-legal social controls, I assume they had in mind the need for greater humility within the legal profession. So proud an occasion as this calls for sober reflection on the limits of the distinctively legal-on the contingent, derivative, and partial place of formal adjudication and control within the larger ordering of human society. I have no objection to communicating such a perspective, there by adding an appropriate note of piety to these proceedings. Nevertheless, I think it may be more important for us to consider some of the great social …

The Creative Power And Function Of Law In Historical Perspective, Harry W. Jones

Vanderbilt Law Review

The creative work of legislators, administrators, judges, and practicing lawyers is far more than a "response" to social change. Through-out recorded history, law itself has been one of the greatest of the forces of social change. Change and stabilization are, as Donald Young has reminded us, part of the same social process, and law is at the heart of that process. Let us concede, and readily, that the command theories of law embodied in the writings of Bodin, Hobbes, and Austin exalted unduly the pervasiveness of law's imperatives as the controlling influence on the behavior of men in society. At …

Stability And Change In Constitutional Law, Jerre S. Williams

Vanderbilt Law Review

This characterization of the role of the United States Constitution by the great Chief Justice one hundred and forty-four years ago accurately sets the scene for a consideration of stability and change in constitutional law. To have viewed the United States Constitution as a code would have been contrary to the entire common-law tradition out of which it grew. Instead, as this quotation reveals, it has never been seen as establishing a set, unchangeable meaning. The history of constitutional interpretation in the United States reveals that Pound's famous dictum, "law must be stable and yet it cannot standstill," is not …

Legislation, Law Review Staff

Vanderbilt Law Review

Admission to the Bar--Legal Profession--Residence Requirements for Student Applicants to the Bar

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Corporations--Bylaws--Allocation of Power Between Shareholders and Directors

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Courts--Administration of Justice--Restricting the Appellate Jurisdiction of Courts of Last Resort

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Nonprofit Corporations--Definition

Law And The Dilemma Of Stability And Change In The Modernization Process, Lucian W. Pye

Vanderbilt Law Review

Even as a student of comparative politics my interests have led me more to analyzing the newly developing countries, countries which often appear to be impervious to principles about the rule of law. Out of this awareness of my limitations for this occasion, I have chosen as my theme what I feel to be a significant paradox about the role of law in the modernization process which is now engrossing the energies of the underdeveloped countries of Asia, Africa, and the Middle East. Boldly stated, this paradox is that historically, when Western law was introduced into traditional societies with the …