Law Commons^™

The Western Hemisphere Trade Corporation, Edward C. Blank, Ii

Vanderbilt Law Review

The existing complexity involved in the taxation of corporate income derived from sources without the United States has motivated Congress to undertake an extensive review of our governmental policy pertaining to this area of taxation. The particular provisions of the Internal Revenue Code of 1954 relating to this subject are merely an ad hoc accumulation, noticeably void of any systematic design. The intended purpose of the present congressional inquiry is to determine whether or not incentive taxation is a proper method by which this nation's foreign policies can be implemented. If it be deemed advisable to offer tax benefits to …

Equity -- 1961 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

During the past year noteworthy decisions have been handed down by the Tennessee courts relating to the availability of injunctive relief to restrain the perpetration of a nuisance, the commission of a trespass, the violation of a non-competition covenant, and the prosecution of an action at law. A suit for specific performance required a determination on the issue of whether the written memorandum was sufficient to satisfy the statute of frauds; and a ruling on the application of the clean hands maxim was necessary in a suit to remove a cloud on title. Finally, a clarification was made regarding a …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Freedom of Speech--Prior Restraint on Motion Picture Exhibition

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Criminal Law--Murder--Year and a Day Rule Rejected in Pennsylvania

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Real Property--Restraints on Alienation--Conveyance Giving Housing Cooperative First Option to Buy and Right to Redeem is not an Invalid Restraint on Alienation

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Taxation--Income Tax--Uncompensated Casualty Loss Due to Drought Allowed as Section 165 Deduction

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Torts--Negligence--Fireman in Performance of Duties Allowed Recovery as Invitee

Torts -- 1961 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

The tort cases reported during the past year were of unusual interest. A number of them dealt with points of first impression in this state. Others represent developments of the law designed to bring it into harmony with changing conditions, as in the application of the res ipsa loquitur doctrine to the unexplained fall of an air-liner, or in the clarification of the duties of an automobile driver to a mere licensee in the vehicle. While the basic pattern for justice in the field of torts has been worked out by our courts with much care and wisdom, occasional modifications …

Workmen's Compensation -- 1961 Tennessee Survey, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

Two bills amending the Workmen's Compensation Law' were enacted during the survey year. The first placed a limit of $12,500 on compensation payable for any permanent partial injury, not limited to those set forth in the schedule. It also added the following self-explanatory sentence to the first paragraph of section 50-1027, Tennessee Code Annotated: To receive benefits from the Second Injury Fund, the injured employee must be the employee of an employer who has properly insured his workmen's compensation liability or has qualified to operate under the Tennessee Workmen's Compensation Law as a self-insurer. The second amendment changed the definition …

Labor Law -- 1961 Tennessee Survey, Paul H. Sanders

Vanderbilt Law Review

In considering basic rights in connection with labor organization, it must be noted that there may be a fundamental conflict between giving dominant emphasis to the interest of the group of organized workers in advancing and maintaining the standards applicable to the group as opposed to giving comparable emphasis to the wishes of the individual employee of a particular employer. The various policy statements contained in the Wagner Act, the Taft-Hartley Act of 1947 and the Landrum-Griffin Act of 1959 indicate a public interest (within the scope of federal authority) in the protection of employees' right to organize, to choose …

Book Reviews, Winthrop R. Munyan, John W. Fager, Walter P. Armstrong Jr., Jerry L. Moore

Vanderbilt Law Review

Taxation of Foreign Income By Boris I. Bittker and Lawrence F. Ebb. Stanford: Stanford University, 1960. Pp. xii, 580.

reviewer: Winthrop R. Munyan

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The Planning and Administration of Estates Edited by Rene A. Wormser. New York: Practising Law Institute, 1961. Pp. 324.

reviewer: John W. Fager

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How to Evaluate and Settle Personal Injury Cases By Allen Bush Indianapolis: The Bobbs-Merrill Company, Inc., 1959. Pp. x,148.

reviewer: Walter P. Armstrong, Jr.

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The Tax Practice Deskbook By Harrop A. Freeman and Norman D. Freeman Boston and Toronto: Little, Brown and Co., 1960. Pp. vii, 581. $17.50.

reviewer: Jerry L. …

Routine Bifurcation Of Jury Negligence Trials: An Example Of The Questionable Use Of Rule Makings Power, Jack B. Weinstein

Vanderbilt Law Review

The Federal District Court for the Northern District of Illinois recently adopted a rule providing for submission of the issues of negligence to a jury before evidence on the issue of damages is introduced (hereinafter sometimes referred to as the bifurcation rule or split trial rule). While reflecting a commendable spirit of judicial responsibility for reducing court congestion, the issue of its propriety raises some of the most subtle and difficult problems of the proper relation of courts to legislature in our system of independent branches of government; of the characterization of matters as substantive and procedural for various purposes; …

The Hearsay System: Around And Through The Thicket, John M. Maguire

Vanderbilt Law Review

All these complicated rules about hearsay are very strange for us, our judges having the right to evaluate the importance of what a witness says or a paper may prove. In this regard, the position of our judges is much freer than yours; in general a German judge can refuse any means of evidence only if he thinks that the fact to be proved is without relevance to the case, or if he accepts the fact to be proved as true, or if the evidence cannot be reached or in his opinion is only designed to delay the procedure. The …

Judicial Notice -- Excerpts Relating To The Morgan-Wignore Controversy, John T. Mcnaughton

Vanderbilt Law Review

Author's Note: These two excerpts are from the author's preliminary draft of his proposed revision of the judicial notice chapter of Wigmore on Evidence. The excerpts are submitted for publication in this Edmund M. Morgan issue of the Vanderbilt Law Review for two reasons: First, because of the important role played by Professor Morgan in the recent development and articulation of the law of judicial notice and, second, because Professor Morgan and Dean Wigmore stand at opposite poles in the argument over judicial notice. At least they do with respect to one significant particular. They do not differ with respect …

Hickman V. Jencks, Edward W. Cleary

Vanderbilt Law Review

In recent years the Supreme Court of the United States has decided two cases with fundamental impact upon the status of the legal profession in the litigatory process. Although the two cases are intimately related, the opinion in the second did not mention the first, and the two decisions have never really been laid side by side.' It is proposed here to explore their mutual implications.

Federal Jurisdiction In Personam Of Corporations And Due Process, Thomas F. Green Jr.

Vanderbilt Law Review

A great deal has been written about the personal jurisdiction of state courts and particularly about the applicable due process requirements.' Much less has been contributed by commentators on the subject of due process requirements applying to in personam jurisdiction of a United States district court. Perhaps the reason is the difficulty of finding a rationale in the pertinent decisions. These fail to distinguish between the conditions necessary for valid service of federal court process as contrasted with those essential to the proper service of state process. They also fail to explain why the constitutional provision brings about the result …

The Published Works Of Edmund M. Morgan, Law Review Staff

Vanderbilt Law Review

Books

CASES ON COMMON LAW PLEADING. St. Paul, 1916 (with Clarke B. Whittier). INTRODUCTION TO THE STUDY OF LAW. Chicago, 1926; 2d edition, 1948 (with Francis X. Dwyer).

THE LAW OF EVIDENCE: SOME PROPOSALS FOR ITS REFORM. New Haven, 1927 (with others).

SELECTION OF CASES ON EVIDENCE AT THE COMMON LAW. Chicago, 1933 (combined with a Selection of Cases by J. G. Thayer as revised by J. M. Maguire).

CASES ON EVIDENCE. Chicago, 1934 (with J. M. Maguire); revised, with supplementary cases and references, 1937; 2d edition [

CASES AND MATERIALS ON EVIDENCE], 1942; 3d edition, 1951; 4th edition, Brooklyn, …

Edmund M. Morgan, Sam L. Felts

Vanderbilt Law Review

Professor Morgan's subject in this Survey is Procedure and Evidence, the field of his greatest contribution to the law. Its importance cannot be overestimated; for no laws can be better than they actually work in practice. As he emphasizes, the whole purpose of the rules is specifically to define the area of dispute, and to provide the best methods for solving it. In short, the problem, the same for both the practitioner and the judge, is that of mastering the materials of the controversy. Morgan throws a flood of light upon every phase of this problem. Under his extraordinary powers …

Professor Morgan And The University Casebook Series, Harry W. Jones

Vanderbilt Law Review

A championship fight professor of Procedure and Evidence must be jack of all legal trades as well as master of his own. The flow of classroom discussion in a good Evidence course does not respect the channels set by law school curriculum divisions. Professor Edmund M. Morgan, as fully as any law teacher of our time, embodies this ideal of the Compleat Lawyer. His students--and most of the leading scholars in his field proclaim themselves to be students of Eddie Morgan in one sense or another--have long been dazzled by the range of Professor Morgan's legal knowledge and by the …

Edmund M. Morgan, Austin W. Scott, John W. Wade

Vanderbilt Law Review

Everyone who knows him well speaks of him as Eddie Morgan--or simply as Eddie. This includes his colleagues, whether they are at the same school or another one; his students, though this is privately, of course, when they are talking about him among themselves; and his former students. Especially his former students. No matter whether they have been out of school for many years or just a few years, they ask about him in the same way. The face and the voice disclose an admiration for him and a touch of awe, and yet at the same time a different …

Edmund M. Morgan, Felix Frankfurter

Vanderbilt Law Review

On a rough estimate, there were some two hundred items of every variety of legal writing: text books, case books, an unpretentious but wise little volume on the Introduction to the Study of Law, the successive stages of the Code of Evidence of the American Law Institute, essays scattered in dozens of law reviews, as well as those contained between book covers, like his Carpentier Lectures, book reviews, surveys of developments in the law both in the Nation and latterly in Tennessee. He has not been a one-subject scholar. But in one field, Evidence,he has become the contemporary master. History …

Vicarious Admissions And The Uniform Rules, Judson F. Falknor

Vanderbilt Law Review

The admissibility of extra-judicial utterances as "vicarious admissions" under the Uniform Rules of Evidence would be regulated by Rule 63 (8)(a) and Rule 63 (9), quoted in the margin. Adoption of these rules would work substantial changes in existing doctrine; changes which the informed consensus may ultimately deem desirable, but which, nonetheless, appear to deserve somewhat more penetrating discussion than has so far been engendered. I hasten to make it clear that I do not necessarily oppose the proposals; merely that I have some doubts which have not as yet been resolved. One further preliminary word: the proposals of the …

The Moment Of Truth: Probability Theory And Standards Of Proof, V. C. Ball

Vanderbilt Law Review

Specialists in all the fields involved agree that the process of proof and persuasion in judicial proceedings presents problems in the application of probability theory and communication theory. When the broader term "information" is used, the problems coalesce, both in judicial trials and in other human affairs. In jury trials, one focus of this coalescence is the formulation for the jury of issues of fact to be decided by them, and their progress to verdict or disagreement.

Although Cicero asserted that probability is the very guide of life,and Thomas Jefferson thought mathematical reasoning and deductions were a fine preparation for …

Rochin And Breithaupt In Context, James R. Richardson

Vanderbilt Law Review

Modern scientific methods of fact-finding present evidentiary problems of admissibility which are grounded in reliability of the process, validity of the technique employed and desired policy objectives. In the final analysis, these three facets of the problem are all indivisibly interrelated since, in order to determine acceptable policy, scientific process and application of that process must inevitably be considered in the light of the concept of due process even though due process as such may not be posed affirmatively in any particular decision.' Moreover, it must be recognized that these factors will be present in varying degrees of intensity, dependent …

The Theory Of Criminal Discovery And The Practice Of Criminal Law, David W. Louisell

Vanderbilt Law Review

To crystallize in a few words the motif of a career as varied and comprehensive as that of Eddie Morgan would in any event be difficult, but it is doubly so for a life devoted, as his has been, to stuff as vital and dynamic as procedure and evidence. For me, his work most fundamentally is to be characterized as a quest for greater rationality in the adjudicative process. Whether one thinks of his analysis of the hearsay rule,' or his rationale of the admissions exception to it, or his treatment of the dead man's statute, or his study of …

Practical Difficulties Impeding Reform In The Law Of Evidence, Edmund M. Morgan

Vanderbilt Law Review

"The World Do Move" was the subject of an address by Judge Joseph C. Hutcheson to members of the Association of American Law Schools shortly after the decision of the Supreme Court in Funk v. United States.' He used the opinion in that case as evidence that the courts do likewise even in matters of procedure when legislatures lag. With his usual finesse and subtle sense of humor, he did not specify the rate of motion or mention the magnitude of the movement. The time lapse was a mere 144 years and the memorable advance was from the position where …

The Next Step: Uniform Rules For The Courts Of Appeals, Milton D. Green

Vanderbilt Law Review

The adoption of the Federal Rules of Civil Procedure in 1938 maybe regarded as one of the great landmarks of procedural reform in the United States. The many innovations and improvements over prior practice which were effected are well known. Not the least of these was the achievement of uniformity of procedure in all of the federal district courts of the United States, replacing the chaotic confusion which had existed under the Conformity Act.' Although the Federal Rules were addressed primarily to practice and procedure in the district courts, they also dealt with certain aspects of appellate practice. This was …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Bankruptcy--Assets--Trustee's Rights Under 70(c) Ascertained at Date of Bankruptcy Rather than Anterior Point of Time

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Contempt--Publisher Not in Contempt for Newspaper Articles Which He reasonably did not believe would interfere with Trial

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Federal Procedure--Erie Doctrine--Impeachment Evidence not Outcome--Determinative

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Jurisdiction--Federal Death on High Seas Act Grants Exclusive Jurisdiction to Federal Courts

The Objective And Function Of The Complaint: Common Law -- Codes -- Federal Rules, Fleming James, Jr.

Vanderbilt Law Review

Before a court can properly decide a case and enter judgment, certain things must have taken place. The court must have obtained jurisdiction over the parties and over the controversy to be decided.'Limits must be set to the controversy so that the court and the parties may know how to direct their efforts, and so that the court may rule on questions of relevancy. The issues of fact and of law must be framed so that each is allocated to the appropriate tribunal for decision and is presented clearly enough so that the tribunal knows what to decide. The adversary …

Morgan's Role Of Leadership In Evidence Law Reform, Charles T. Mccormick

Vanderbilt Law Review

There are two types of reformer-the meek and insinuating kind that wear down resistance like water falling on a rock, and the scrappy kind that carry the war into the enemy's country. Morgan is of the latter type.Five years active trial practice in Duluth gave him the savor of evidence rules in action.His first campaign for the betterment of evidence law was his work as chairman of a distinguished committee of lawyers, law teachers and judges set up by the Commonwealth Fund to propose reforms in the law of evidence. Under Morgan's leadership the committee "determined to develop a new …

The Origin Of The Sacco-Vanzetti Case, Tom O'Connor

Vanderbilt Law Review

For the first time in the thirty-three years since Sacco and Vanzetti were executed, on August 23, 1927, there has appeared an apologia for the Commonwealth of Massachusetts. The work bears the title: Sacco-Vanzetti: The Murder and the Myth. The author is Robert H. Montgomery, a Harvard Law School graduate (1912) and a corporation lawyer in Boston for nearly fifty years. His clients include textile mills, such as the American Woolen Company (center of the famous Lawrence Strike of 1911), New England Telephone & Telegraph Co., and large electric power interests. The approach of Attorney Montgomery to the Sacco-Vanzetti case …

Financing Industrial Development In The South, Margie F. Pitts

Vanderbilt Law Review

Proponents of public industrial building financing justify their position by pointing to the need to supplement private investment and to raise the level of per capita income in areas which have chronically suffered from this condition. The view one adopts of such financing is often couched on the high theme of free enterprise versus governmental participation. Yet the problem may also be viewed from the perspective of the South and its immediate needs.In the long run, it might well be that this program will have served to furnish a starting point for the process of development which would lead to …

The N.L.R.B.'S Dues Reimbursement Remedy In Perspective, Arthur M. Schiller

Vanderbilt Law Review

Where employees have been coerced to pay union dues, initiation fees, assessments, permit fees, referral fees, "dobies" and the like,an inequitable situation exists requiring that restitution be made by the parties whom the National Labor Relations Board determines to be legally responsible for having required that the payments be made. In an effort to restore the status quo in the particular situation and to deter others from entering into contracts and practices, which, in general, encourage membership in a labor organization,the Board has ordered a disgorgement remedy. An enunciation of the Board's power to fashion this remedial order was issued …

Monopoly Profits, Economic Impossibility, And Unfairness As Anti-Trust Tests, Philip Marcus

Vanderbilt Law Review

One must agree with the district court's observation that the mere fact that one opens a business in an area with the idea that he will succeed and an existing-perhaps poorly run-business will have to withdraw and leave him alone in the field is hardly a situation which the Sherman Act is intended to reach. The Sherman Act does not protect one from competition, least of all a monopolist, which the Gazette admittedly was. And this is true even though the competition is likely to result in a monopoly. But there are limits upon the methods which one can use …