Law Commons^™

Nlrb - Fepc?, Jeffrey M. Albert

Vanderbilt Law Review

One potential agency in the attack on racial discrimination in employment is the National Labor Relations Board. The President has indicated that substantial reliance will be placed on that agency for the vindication of Negro rights in areas of employment not covered by Executive Order 10925. Less than a year. ago the board's approach in this area was cautious and its proper role ill-defined and speculative.' Within the past year, however, the NLRB has moved rapidly by sharpening four, possibly five, anti-bias remedies. Three have roots in early NLRB decisions. The fourth is new. The fifth, resurrection of which has …

Local Government -- 1962 Tennessee Survey, Gilbert Merritt, Jr.

Vanderbilt Law Review

Local government cases usually make dry reading, but this year one unusual dispute gives some insight into the customs and court-house politics in one of Tennessee's smaller counties. The county judge and the county register of deeds (a lady) disagreed about office space in the courthouse. The county judge wanted to swap offices with the lady, but she refused. So after talking to the sheriff about it, the judge knocked holes in the lady's wall; whereupon she got an injunction. Judge Shriver, speaking for the court of appeals, said the sheriff could not give the judge permission to knock the …

Procedure And Evidence -- 1962 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction of Pleading--Where the plaintiffs bill of complaint for specific performance of a contract for the purchase of a specified parcel of realty discloses on its face that the agreement was oral, the defendant may raise the defense of the statute of frauds by demurrer.'

Burden of Proof and Presumptions--The current decisions do little to clear up the confusion caused by the use of the term presumption, though it is usually not too difficult to determine the effect intended to be given it in a particular case.

Judicial Notice--The cases in which the Tennessee courts have applied the doctrine of …

Restitution -- 1962 Tennessee Survey, John W. Wade

Vanderbilt Law Review

For the prevention of unjust enrichment of a defendant the courts make available a number of restitutionary remedies to a plaintiff. These remedies developed separately, and they differ somewhat in their characteristics, but during recent years writers have seen that there is a single principle underlying them all, whether they are administered at law or in equity.

Commercial Transactions And Personal Property -- 1962 Tennessee Survey, John A. Spanoale

Vanderbilt Law Review

The Code, and its repealer provisions, will not become effective in Tennessee until June 30, 1964. This delay gives the practicing attorney fifteen months to become familiar with its provisions. This amount of time will be needed for such education, for the Code is a very large and detailed piece of legislation, and little has been written comparing the present Tennessee law to the Code. It is not the purpose of this article to attempt to summarize the effect of the provisions of this legislation on the present Tennessee law, but only to give notice that it has been enacted …

State And Local Taxation -- 1962 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

I. Exemption of Religious Institution from Property Taxation--Taxation of Parking Lots and Cafeterias Operated by Exempt Institution for Employees

II. Apportionment of Income from a Multistate Unitary Business for Excise Tax Purpose--Inclusion of Income from Sale of Extra-State Land in Measure of Tax

III. Taxability as Income to Stockholder of Distributions from Massachusetts Trust--Distributions in Cash and Stock of Capital Gains from Sales of Securities

IV. Sales Taxes--Taxability of Contractor Installing Air Conditioning Equipment for Tax Exempt User

V. Penalties for Delinquencies in Sales and Use Taxes--Mistake as Basis for Relieving Against Penalty for Delinquencies

Constitutional Law -- 1962 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

I. Delegation of Legislative Power to Metropolitan Charger Commission

II. Right to Jury Trial: Special Findings Without General Verdict

III. Due Process of Law: In Personam Jurisdiction Over Nonresident Individual

IV. Due Process: Expulsion from Public University Without Hearing

V. Equal Protection: Legislative Apportionment

VI. Legislative Classification: Suspension of General Law for One County

VII. Legislative Classification: Exemption from Carrier Regulation

VIII. Equal Protection: Racial Discrimination

IX. Standing to Challenge Constitutionality

Corporations -- 1962 Tennessee Survey, Daniel J. Gifford

Vanderbilt Law Review

I. Jurisdiction Over Foreign Corporations--The Solicitation Plus Rule The extent of Tennessee's assertion of jurisdiction over foreign corporations was considered in Atchison, Topeka & Santa Fe Ry. v. Oritz' and Fisher v. Trion, Inc. by two of the Tennessee courts of appeal. Both cases are of interest because of their respective approaches to the so-called "solicitation plus" rule.

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II. Corporate Promotions Community General Hospital, Inc. v. Diehl involved an unsuccessful promotion of a hospital corporation. A preferred stockholder had brought a class action in the Chancery Court of Shelby County for the appointment of a receiver to carry out …

Insurance -- 1962 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

The courts of Tennessee were confronted by a number of interesting problems of insurance law during 1962. For the most part, the results were neither startling nor unsettling. There were, however, decisions that seem to qualify previous opinions, sometimes without citation, and there was one very troublesome opinion concerning credit life insurance.

Labor Law -- 1962 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

Two decisions during the survey period involve implementation of rights under collective bargaining agreements. These Tennessee decisions interrelate with other decisions in an area of labor law that has been developing with astonishing rapidity since the Supreme Court of the United States embarked on the project of fashioning a body of federal common law governing the enforcement of collective bargaining agreements in the famous Lincoln Mills decision in 1957. It has been determined that rights under collective bargaining agreements, where the parties would be subject to the Taft-Hartley or Labor-Management Relations Act of 1947, arise under this federal common law." …

Real Property -- 1962 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

I. Deeds

A. Construction

B. Suit to Set Aside Deed

C. Boundary Disputes

II. Titles

A. Dedication

B. Easements

C. Avulsion, Accretion, Reliction

III. Eminent Domain

A. Right to Incidental Damages

B. Value of Leasehold

C. Measure of Damages for Diversion of Stream

D. Determination of Area of Land Condemned

E. Liability of City for Land Condemned Within Its Boundaries

IV. Landlord and Tenant

A. Liability of Landlord for Injury to Employee of Tenant Due to Defective Condition of Premises

B. Right of Landlord to Enforce Forfeiture Clause.

Torts -- 1962 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

Most of the tort cases during the survey period do not involve any significant changes in the law. Mindful of the necessity of stability and predictability, and of a tradition of even-handed continuity, our courts have been naturally hesitant to upset established rules. However, in a few areas (injuries to unborn children, application of the immunity doctrine to a minor whose disability is removed, scope of liability for negligent misrepresentation) the courts have been faced with new problems and changed conditions. In these areas the decisions frankly accept responsibility for some development of legal doctrine to keep it responsive to …

Trade Regulation -- 1962 Tennessee Survey, Leo J. Raskind

Vanderbilt Law Review

In Hogue v. Kroger, a retail grocer sought a declaratory judgment, under the Dairy Law of 1961, of his right to reduce the seding price of his milk (ex-trading stamps) below the statutory price by the amount of the cost of the trading stamps to a stamp-dispensing competitor. The commissioner of agriculture opposed this practice. Being responsible under the statute for enforcing compliance with the statutory price, the commissioner answered, coupling with his answer a cross-bill seeking to enjoin further sales by Hogue at the reduced cash price. The supreme court affirmed a denial of the commissioner's injunction and remanded …

Workmen's Compensation -- 1962 Tennessee Survey, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

The Tennessee Supreme Court was again faced with a substantial number of workmen's compensation cases during the current survey year. Fewer of the cases than usual were concerned primarily with whether the decision below was supported by sufficient evidence. However, a number of them were illustrative of aspects of the statutory requirement that an employee suffer an injury by accident arising out of and in the course of his employment in order to be eligible for workmen's compensation benefits.

Liability Of Unincorporated Association For Tortious Injury To A Member, Judson A. Crane

Vanderbilt Law Review

Whether a partnership should be treated as a legal entity has been discussed in connection with the drafting of the Uniform Partnership Act' and its interpretation. It seems that the act is in some respects consistent with the entity theory, particularly in the creation of "tenure in partnership" of the joint property. As to liability of the partnership for tortious injury of a member by the partners or partnership employees, it seems clearly to have adopted the non-entity or aggregate approach. Section 13 provides that the partnership is liable for loss or injury by wrongful act or omission caused --to …

Changing A Partnership Into A Corporation, Daniel J. Gifford

Vanderbilt Law Review

The present essay will deal only with those businesses which possess unlimited growth potential in respect of the amount of assets which they can profitably employ in the production of income. If such businesses grow sufficiently, they will probably ultimately reach the stage of publicly held corporations. The reasons for this will vary, although it would seem that once the growth process has picked up momentum, the business may require capital at a rate faster than earnings can be accumulated or funds can be obtained from lenders.

Book Reviews, Estes Kefauver, Stanley D. Rose, W. Edward Sell, Harold G. Wren, Robert N. Covington

Vanderbilt Law Review

Congress and the Court By Walter F. Murphy. Chicago: The University of Chicago Press, 1962. Pp. xi, 308. $6.95. (judicial power)

reviewer: Senator Estes Kefauver

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Interstate Apportionment of Business Income for State Income Tax Purposes By Charles E. Ratliff, Jr. Chapel Hill: The University of North Carolina Press, 1962. Pp. xi, 132. $4.00. (tax law)

reviewer: Stanley D. Rose

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Expulsion or Oppression of Business Associates By F. Hodge O'Neal and Jordan Derwin. Durham, N.C.: Duke University Press,1961. Pp. vii, 263. $10.00. (business organizations)

reviewer: W. EDWARD SELL

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The Ideologies of Taxation By Louis Eisenstein. New York: The …

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Workmen's Compensation--Forum's Use of Foreign State's Tort Law for Recovery Against Third Party Does Not Require Forum's Use of Foreign State's Election Provision in Workmen's Compensation Suit

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Constitutional Law--Advertising-Statute Restricting Size,Number, and Location of Gasoline Price Signs Is Unconstitutional

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Evidence-Attorney--Client Privilege--Applicability When a Corporation Is the Client

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Evidence--Attorney-Client Privilege-Doctor's Report to Attorney on Condition of Client Is Within Privilege

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Federal Jurisdiction--In Federal Question Action Federal Court Is Competent To Exercise In Personam Jurisdiction Over Corporation if It Has Sufficient Contacts With United States

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Federal Rules of Civil Procedure--Counterclaim Not Compulsory in First Suit …

Book Note, Law Review Staff

Vanderbilt Law Review

The book is divided into three major parts. Included in each of these parts are articles written by men who have studied these issues at length. Part I, "The People and Their State Government," deals with issues regarding an individuals relationship to his state--his protections against and his control over governing authorities. The second part, "The Representatives of the People," concerns itself with the established structure of state government and its effect on the quality of local leadership there under. Part III, entitled "The Powers of the State," explores the powers which are given and those denied to the state …

Is A Partnership Under The Uniform Partnership Act An Aggregate Or An Entity?, A. Ladru Jensen

Vanderbilt Law Review

The conflict in entity versus aggregate views of a partnership is materially lessened in those jurisdictions which have removed the procedural disability of partnerships to be sued in their own names. The advantages secured by having a procedural statute allowing partnerships to be sued in their own names argue strongly for the adoption of such act in all of the states having the Uniform Partnership Act, as is indicated by the foregoing analysis. The recognition of the Internal Revenue laws of partnerships as an aggregate for purposes of income taxation will most surely long continue, even though partnerships may be …

Recent And Prospective Developments In Taxation Of Partnerships, Arthur B. Willis, Stephen A. Bauman

Vanderbilt Law Review

This article will attempt to set forth the provisions of the Revenue Act of 1962 insofar as they affect the taxation of partners and partnerships, the recent developments in this area in brief detail and wide exposure, and the significant aspects of expected future legislation,including an analysis of certain parts of H.R. 9662.

Partnership By Estoppel, William H. Painter

Vanderbilt Law Review

"Wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it."' This statement, repeated with tedious frequency in the cases, is both obvious and misleading in its simplicity, for of all the maxims of law based on notions of natural justice, this is one of the most difficult to apply. This discussion will explore it as applied in the law of partnership, so-called "partnership by estoppel." In addition, the liability of those who have retired from partnerships will be considered since, although this …

Meaning And Structure Of Law In Islam, Salah-Eldin Abdel-Wahab

Vanderbilt Law Review

There are many other reasons to believe that consideration of Islamic jurisprudence should prove amply rewarding in the comparative study of law. A legal system which still underlies the legal life and social conduct of some 400 million people (one sixth of the world population) cannot be ignored. The original solutions which it provides for problems of high complexity and its very advanced normative structure which consists entirely of works by jurists, not of government codes and statutes, are worthy of consideration.

Policyholders' Interest Income From Life Insurance Under The Income Tax, Richard Goode

Vanderbilt Law Review

Life insurance policies usually combine pure insurance and saving features. This fact is recognized by the industry and by those who draw up national economic accounts but is not fully reflected in the income tax. None of the return on saving through life insurance is taxed to a policyholder prior to the maturity, redemption, or surrender of a policy. Part of the return, but apparently only a small fraction of the total, is taxed when policies mature for reasons other than the death of the insured or are redeemed or surrendered. Inasmuch as most forms of investment income are taxable, …

The Bank-Depositor Relationship--A Comparison Of The Present Tennessee Law And The Uniform Commercial Code, John A. Spanogle Jr.

Vanderbilt Law Review

The author examines the relationship of the bank and its deposit or under existing Tennessee law and then points out changes and modifications which would arise under the Uniform Commercial Code. Professor Spanogle notes that many of the problems discussed are not governed by statute in Tennessee and that the case law is unclear in certain areas. This is one of his reasons for recommending the adoption of the Uniform Commercial Code by the Tennessee legislature.

The Ethical Foundation For The Pragmatic Conception Of Justice, Anton Donoso

Vanderbilt Law Review

Since the death of John Dewey ten years ago, his thought has been the subject of a number of works, some of the most significant of which deal with his philosophy of law and of justice. The question of his conception of justice arises out of his general effort to show that the resolution of moral conflicts between various claimants is possible by the use of the scientific method, by which is meant intelligent examination justified by reliable public test through reference to consequences. This entails the formulation of a norm of justice that is both valid (true) and morally …

The Western Hemisphere Trade Corporation:A Functional Perspective, Leo J. Raskind

Vanderbilt Law Review

Among the statutory forms available for the conduct of foreign operations the Western Hemisphere Trade Corporation, traditionally the Cinderella of the Internal Revenue Code, has been reoriented by the new provisions of the Revenue Act of 1962. Unlike its story-book counterpart, however, the Western Hemisphere Trade Corporation does not emerge in a state of new magnificence. The new act,by curtailing, but not eliminating, the deferral of taxation on earnings retained abroad by United States controlled foreign subsidiaries, has initiated a process of review and of reorganization of the tax planning of foreign operations. Since the new statutory provisions affect existing …

Culture Patterns And Judicial Systems, Stuart S. Nagel

Vanderbilt Law Review

Comparative law, like comparative government in general,' has largely confined itself to unintegrated descriptions of European legal principles. Not only has comparative law traditionally been limited in its subject matter, but it also has rarely, if ever, made use of statistical techniques in accounting for the differences observed. It is the purpose of this paper to analyze statistically the relations between industrialism, democracy, and collectivism on the one hand and the judicial process on the other in ten different societies.

Aid For The Medically Indigent, Jacob Meerman, Millard Long

Vanderbilt Law Review

In the following paper we discuss the ability of low income groups to purchase needed care, consider the private alternatives to government action, find these deficient, and hence review various proposals made to the Congress. Finally, we examine a proposal which, while originally propounded in the early Fifties, has received little attention in the recent debates. To the authors, it would seem the best approach to care for the indigent.

Recent Case Comments, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Full Faith and Credit--Prior Conflicting Divorce Decrees

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Conflict of Laws--Tax Claims of One State Held Not Enforceable in Another State

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Constitutional Law--Discrimination--Statute Prohibiting Racial Discrimination in Renting of Private Apartment Houses Does Not Violate Due Process

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Constitutional Law--Establishment of Religion--Recitation of State Composed Prayer in Public Schools Held Unconstitutional

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Criminal Law--Narcotics-Criminal Prosecution for Addiction Is a Cruel and Unusual Punishment Violating Eighth and Fourteenth Amendments

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Damages--Collateral Source Rule--Value of Medical Services Plaintiff Received as a Gratuity Not Allowed as Special Damages

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Due Process--Taxation of Insurance Premiums Paid to Foreign Insurers on Property …