Law Commons^™

Insurance -- 1961 Tennessee Survey (Ii), Robert N. Covington

Vanderbilt Law Review

The Tennessee decisions in the field of insurance law during the survey period dealt almost exclusively with problems that may be characterized as the selection and control of risks. The importance of the principles used in the solution of these problems is obvious. Only by being able to select carefully those risks for which insurance will be offered can the insurer properly determine the premium that is to be charged. If policy language is interpreted to grant broader coverage than that actually intended, then the insurance fund is subjected to greater potential loss than estimated,so that the insurer's profits will …

Decedents' Estates, Trusts And Future Interests -- 1961 Tennessee Survey (Ii), Herman L. Trautman

Vanderbilt Law Review

The developments in these areas of Tennessee law during the first part of the year 1961 have been discussed heretofore in a recently published article.' In order to accommodate the transition from a fiscal year to a calendar coverage, however, this article will be limited to those appellate court opinions published after May 31 and not later than December 31,1961. During this period the General Assembly of Tennessee was not in session.

Creditors' Rights And Security Transactions -- 1961 Tennessee Survey (Ii), Forrest W. Lacey

Vanderbilt Law Review

During the period under survey there were few cases dealing with creditors' rights or security transactions. One of these, Cannon Mills, Inc.v. Spivey,' presented the question of whether the mere filing of a bill to subject the property of an insolvent debtor for the benefit of creditors created a lien lis pendens, or whether registration of the lien was necessary before it became effective. The facts were as follows. A judgment creditor with a nulla bona return filed a general creditors' bill on October 18, to subject the property of an insolvent debtor for the benefit of all his creditors. …

Conflict Of Laws -- 1961 Tennessee Survey (Ii), Elliott E. Cheatham

Vanderbilt Law Review

Jurisdiction of courts over foreign corporations is a developing subject. Almost all aspects of it are touched on by decision or discussion in two cases in different courts and under different statutes; one case was in the Supreme Court of Tennessee, the other in the United States district court.

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Tucker v. International Salt Co. was an action in a state court in contract and quasi-contract against a Pennsylvania corporation.

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Shuler v. Wood was an action in tort in the United States District Court for the Eastern District of Tennessee against two Pennsylvania corporations.

Business Associations -- 1961 Tennessee Survey (Ii), Kenneth L. Roberts

Vanderbilt Law Review

I. REVOCATION OF CHARTER OF GENERAL WELFARE CORPORATION

In the much-publicized case of Highlander Folk School v. State ex rel.Sloan, the supreme court upheld the revocation of the charter and dissolution of a general welfare corporation.

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II. Foreign Corporation--"Doing Business" Service of Process

The cases of Tucker v. International Salt Co.," decided by the Tennessee Supreme Court, and Shuler v. Wood,' decided by Judge Taylor of the Federal District Court for the Eastern District of Tennessee, dealt with interesting and diverse questions of "doing business" by foreign corporations as relating to service of process. These cases are fully discussed …

Annual Survey Of Tennessee Law, Law Review Staff

Vanderbilt Law Review

This is the tenth Annual Survey of Tennessee Law to be published by the Vanderbilt Law Review. During the past ten years, the response to such issues from the members of the Bar has been gratifying to all those connected with the project. Many attorneys have told us that these issues have proved valuable to them both as a means of keeping up to date on recent developments in the law of this state and as a source of research guidance. We have been particularly pleased to see a number of articles from these issues cited by the courts of …

Criminal Law And Procedure -- 1961 Tennessee Survey (Ii), Robert E. Kendrick

Vanderbilt Law Review

In reviewing Cowan v.State, the Tennessee Supreme Court noted the following facts: Defendant, seeing an automobile stop at an isolated spot on a so-called "lovers' lane," approached it by way of a woods, being unseen by the two teen-age couples in the automobile until he was quite nearby. The occupants' attempt to drive away was thwarted by the defendant's exhibiting and threatening to use a pistol, warning against further escape attempts, and demanding and receiving the ignition key. He then insisted that the girls have sexual intercourse with him; and when they refused, he stated that he would not "take …

Book Reviews, Law Review Staff

Vanderbilt Law Review

Decision at Law

By David W. Peck.

New York: Dodd, Mead & Co.,1961. Pp. vii, 303.

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Corporation Lawyer: Saint or Sinner? By Beryl Harold Levy.

Philadelphia and New York: Chilton Co., 1961. Pp. x, 175.

reviewer: Elliott E. Cheatham

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Criminal Psychology Edited by Richard W. Nice. New York: Philosophical Library, Inc., 1962. Pp. 284.

reviewer: J. Paschall Davis

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Symposium on the Labor-Management Reporting and Disclosure Act of 1959 Edited by Ralph Slovenko. Baton Rouge: Claitor's Bookstore, 1961. Pp. xliv, 1237. $20.00.

reviewer: Robert N. Covington

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Handling Accident Cases, Vol. 3

By Albert Averbach.

Rochester: The Lawyers …

Baker V. Carr -- Malapportionment In State Governments Becomes A Federal Constitutional Issue, William M. Hames

Vanderbilt Law Review

The Court's decision in Baker v. Carr was properly cast in terms of protecting individual rights under the equal protection clause, for this issue can be distinguished and separately handled. It does seem inevitable, however, that the decisions which set standards by which to determine invidious discrimination will also by these standards delineate, at least in broad outline, one aspect of what will be considered an acceptable "republican" form of government guaranteed by the Constitution.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administrative Law--Due Process--Expulsion From Public University Requires Notice and Hearing

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Antitrust Law--Investigatory Powers--Federal Trade Commission Has Right To Obtain Private Copies Of Privileged Census Information

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Constitutional Law--Due Process-Escheat By One State of a Fund Claimed By Other States Held To Violate Due Process

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Sales--Warranty--Advertisement That Cigarettes Are Harmless Held An Express Warranty

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Taxation--Income Tax-Deferral Of Prepaid Income Disallowed

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Taxation--Inheritance, Estate and Gift Taxes--Blockage Rule Rejected in Evaluating Stock For Ohio Succession Tax

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Taxation--Use Tax--Commerce and Equal Protection Clauses--Discrimination Against Multi-State Business

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Torts--Negligence--Vendor of Alcoholic Beverages Held Liable for Injuries to Intoxicated Vendee Despite …

Equity -- 1961 Tennessee Survey (Ii), T. A. Smedley

Vanderbilt Law Review

During the current survey period, each of the higher Tennessee courts has been called upon to exercise its injunctive powers in significant and perplexing types of controversies. The court of appeals for the western section had to decide whether to take the risk of interfering in a bitter dispute between opposing factions of a church which had been torn by interfraternal strife for several years. In the middle section court of appeals an injunction was sought to restrain a store owner from operating his business under the name of a former manager of the store who had left this position …

State And Local Taxation -- 1961 Tennessee Survey (Ii), Paul J. Hartman

Vanderbilt Law Review

During the period covered by this survey the pickings by way of decided cases have been pretty slim. Only two cases are here the subject of extended comment.' However, the comprehensive congressional study of state taxation of multistate business has been extended until July 1, 1963. The expanded congressional study now being conducted includes all forms of state taxation of interstate commerce, such as franchise taxes, sales and use taxes, gross receipts taxes, and ad valorem taxes. Under the chairmanship of Congressman Willis, a subcommittee of the House Judiciary Committee with the help of a sizeable staff and an advisory …

Trade Regulation -- 1961 Tennessee Survey (Ii), Leo I. Raskind

Vanderbilt Law Review

This field of law, not previously treated independently in the annual survey, is designated as Trade Regulation or alternatively as Government or Public Control of Business. In the limit, this body of doctrine is an amalgam of tort and contract principles bearing the impress of the equity practice. These distinct principles are now embodied in both state and federal statutes as the foundations of legal control over competitive commercial conduct. Their scope extends, with different emphasis, from public utility rate regulation to a variety of aspects of market structure and conduct in the unregulated sector of the economy. The principal …

Tax Planning Of The Administration Of An Estate, Sherwin P. Simmons

Vanderbilt Law Review

In this article, the author points out that the tax hazards and tax saving opportunities presented in the administration of an estate cannot be disregarded. With this in mind, he discusses in detail the filing of a decedents final income tax return, the various elections and alternatives available to the executor in the tax planning of the estate, the tax consequences flowing from the executors management of the estate, and the problems encountered in terminating the estate and paying the tax.

The Opinions Of Hughes And Sutherland And The Rights Of The Individual, R. Perry Sentell, Jr.

Vanderbilt Law Review

A pair of tasks are undertaken by Mr. Sentell in this article: First, he analyzes and compares the opinions of Justices Sutherland and Hughes on the substantive and procedural rights of individuals, and cites both contemporary and present day comment on these opinions. Second, he probes the more difficult problem concerning the probability of judges of highly dissimilar philosophies and backgrounds reaching consistent agreement in particular areas of the law.

Judicial Review: Political Reality And Legislative Purpose: The Supreme Court's Supervision Of Congressional Investigations, Martin Shapiro

Vanderbilt Law Review

The Supreme Court has long claimed the power to exercise judicial review over the investigatory activities of Congress. The most severe limitation the Court has imposed is the requirement of legislative purpose. Investigations must be conducted for the purpose of aiding Congress in making the laws. But the Court has also introduced the doctrine of presumption of legislative purpose. The Justices will presume that the investigating committee and the Congress which authorized it had a legislative purpose in pursuing the inquiry. It will be argued here that these two doctrines are completely inter-dependent; once legislative purpose was required, presumption was …

Ethical Theory And Legal Philosophy, Stanley D. Rose

Vanderbilt Law Review

Jurisprudence and ethics, the author believes, represent distinct efforts to achieve values in society. However, because of their similar method, bases in fact, and testing by consequences, each has something to give the other. With this in mind, the article examines the work of contemporary writers in ethics, both to determine what exactly are their positions and to see what they might offer the student of jurisprudence.

The Common Law And Statutory Background Of The Law Of Musical Property, George D. Cary

Vanderbilt Law Review

This article comprises a brief but comprehensive presentation of the history and evolution of the law of musical copyright; it is particularly designed for the practitioner seeking a general view of musical copyright law before proceeding on to more specialized problems. After a discussion of the English and American history of musical copyright, the article examines the common law and statutory aspect of the subject, and concludes by discussing the international rules and conventions governing musical copyright.

Copyright Problems Of The Phonograph Record Industry, Sidney A. Diamond

Vanderbilt Law Review

This article addresses itself to several difficult questions. Are phonograph records copyrightable? What is the scope of a copyright owner's "mechanical reproduction right," and how exclusive is this right? What protection against infringement of the "recorded performance," as opposed to the musical composition incorporated in it, has the record manufacturer? What additional statutory protection might be granted in this area, and what of its constitutionality?

Law And Liberal Education, Jacob Weissman

Vanderbilt Law Review

Law, says the author, can be a useful tool in the building of a liberal education. Uniquely combining the study of past experience with the solving of present day problems, law study could very well supplement or replace traditional undergraduate courses in humanities and history of Western civilization. Nothing that thus far such changes have been made primarily at a few schools of business, the author discusses the advantages of similar use of law for liberal education in any undergraduate curriculum and, eventually, in the law schools.

Book Reviews, Robert J. Harris, Wallace Mcclure

Vanderbilt Law Review

Freedom and the Law By Bruno Leoni Princeton, New Jersey D. Van Nostrand Co., 1961. Pp. vii, 204. $6.00.

reviewer: Robert J. Harris

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The Rule of Law Edited by Arthur L. Harding Dallas: Southern Methodist University Press, 1961. Pp. xi, 89. $3.00.

reviewer: Wallace McClure

The Basis Of Medical Testimony, Paul D. Rheingold

Vanderbilt Law Review

Like any other expert, the medical witness is brought into court to render an opinion upon technical issues involved in a case. Fundamental to the opinions or conclusions which the medical witness renders is a matrix of data learned, observed or related, both fact and opinion. These subsidiary items, taken together, are commonly referred to as the basis of expert testimony. Thus a doctor, in testifying on the cause of a patient's condition, for example, might refer to and rely upon what he has observed in examining the patient, upon what the patient has told him of his symptoms, and …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Restraint of Trade-Supreme Court Suggests A New Reading of Section 3 of the Clayton Act

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Civil Rights--Abatement and Revival--State Survival and Wrongful Death Statutes Adopted in Federal Civil Rights Act Suits

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Constitutional Law--Tenth Amendment-the Estate of A Veteran Dying Intestate Without Heirs May Constitutionally Escheat to the Federal Rather Than State Government

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Due Process of Law--A State May Deny An Applicant Admission to the Bar for Refusing To Answer Questions About His Advocacy of Subversive Organizations Or Objectives

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Federal Courts--State Security for Expenses Statute Inapplicable in Federal Equity Action Under Securities Exchange Act

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Federal …

Selected Materials On The Literature Of Bankruptcy, Roy Mersky

Vanderbilt Law Review

Charles Warren, in his book Bankruptcy in United States History, opens the first chapter with a statement that would discourage most lawyers interested in developing a practice in bankruptcy: "The subject of bankruptcy is gloomy and depressing in that the law of bankruptcy is dry and discouraging." However, a federal bankruptcy law has been on the statute books continuously since 1898, and it is safe to assume that barring a nuclear war, legal problems dealing with bankruptcy will continue for along time in the future.

Arrangements And Wage Earner Plans: Proceedings Under Chapters Xi And Xiii, Sydney Krause

Vanderbilt Law Review

In this article, Mr. Krause considers the practical problems confronting the attorney who conducts proceedings under chapters 11 and 13 of the Bankruptcy Act. The article is a revision of remarks made by Mr. Krause at the Institute on Debtor-Creditor Relations held at the Vanderbilt University School of Law on November 11, 1961. While a number of changes have been made in the remarks, the author has retained, insofar as possible, the original flavor of the address.

Book Reviews, Donald P. Kommers, I. C. Rand

Vanderbilt Law Review

Law and Social Process in United States History:

The excellence of Law and Social Process in United States History in every respect matches the high honor accorded Professor Hurst when invited to deliver the ninth series of the Thomas M. Cooley Lectures under the sponsorship of the University of Michigan Law School. This volume, following upon the heels of his Growth of American Law and Law and the Conditions of Freedom, the latter having won the James Barr Ames prize granted quadrennially by the Harvard Law School, merely affirms his stature as an eminent legal historian. Like the earlier volumes, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Civil Rights Act of 1871--"Under Color of Law" Defined

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Conflict of Laws--Characterization--Amount of Damages in Wrongful Death Action Held to be Procedural and thus Controlled by Law of the Forum

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Criminal Law-Insanity--Third Circuit Adopts A New Test for Criminal Responsibility

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Criminal Law--Smith Act--Membership Clause Requiring Active Membership in Communist Party and Specific Intent To Use Violence Held Not To Violate the First or Fifth Amendments

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Criminal Procedure--Evidence-States May Not Constitutionally Use Evidence Obtained by Illegal Search and Seizure in Criminal Cases

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Evidence--Hearsay--Old Newspaper Article Admitted as Evidence of Facts Contained on Grounds of Necessity …

The Practitioner And The Bankruptcy Process, John M. Bates

Vanderbilt Law Review

While procedure in bankruptcy matters is not difficult it requires meticulous attention to detail. After observing many cases, it is my opinion that the average practitioner who carefully observes the rules of procedure and is painstaking and conscientious in drafting the schedules and other required pleadings can find bankruptcy an interesting and rewarding practice.

The Wage Earners' Plan: Its Purpose, Walter Chandler

Vanderbilt Law Review

Chapter XIII is the forerunner of the general revision of the National Bankruptcy Act in 1938. Introduced as a bill for the relief of harassed wage earners who desire to pay their debts if given sufficient opportunity, the bill attracted the attention of the Honorable Hatton W. Sumners, Chairman of the Committee on the Judiciary of the House of Representatives. In view of the cumulative need for a definitive study of the law of bankruptcy with the end view of enacting a complete revision of the Act of 1898, a special subcommittee on bankruptcy was created; this subcommittee, with the …

The Dischargeability Of Debts In Bankruptcy, Paul J. Hartman

Vanderbilt Law Review

From the viewpoint of the bankrupt debtor, a discharge from his obligations is, no doubt, the most important facet of bankruptcy proceedings. The bankruptcy discharge is designed to relieve the honest debtor from his financial entanglements, and to give him an opportunity to reinstate himself in the business world. A debtor is now entitled to a discharge as a matter of right, unless he has been guilty of certain specified offenses against the Bankruptcy Act. For many generations the idea of a discharge from one's debts has been the relieving feature of bankruptcy. However, it has not always been so. …