Law Commons^™

Book Note, Law Review Staff

Vanderbilt Law Review

Evolution is but a means through which the intelligence of God is operating, and thus is irreversibly progressive and dominated by a finality or goal, yet the means for the attainment of that goal have not been rigidly fixed. Man has personal liberty, and, to a certain extent, can transcend nature; but he cannot transcend the creation of life, nor cause the abolition of death. Physically, man has probably evolved about as far as he can go; intellectually, specific individuals have attained the ultimate goal, and the race as a whole has made some progress towards it; but morally, very …

Developments In The English Law Of Medical Liability, John G. Fleming

Vanderbilt Law Review

Throughout the common law world, as indeed elsewhere, our generation has been witness to an unmistakable, if not always consistent, trend of increasingly disassociating the administration of accident law from the philosophy of individual fault in favor of the collectivist principle of loss distribution, as evidenced in the movement towards stricter liability in litigation areas with a background of liability insurance. However debatable the measure of this reorientation in the United States,' it has taken very large strides in the several jurisdictions of the British Commonwealth where a pattern of loss allocation is now visibly emerging which, in many respects, …

Modern Techniques In The Preparation And Trial Of A Medical Malpractice Suit, Fitz-Gerald Ames Sr

Vanderbilt Law Review

Though it is true that in malpractice suits more than in any other type of litigation, the plaintiff must have a strong case on the merits, it is equally important and almost a necessity in most malpractice cases that patient's counsel carefully and thoroughly condition the jurors' minds from the very outset to a psychological acceptance of this type of litigation. Far too many veniremen, before they have been selected as trial jurors in a malpractice suit, have the attitude that (1) a "malpractice" suit connotes conduct either criminal, quasi-criminal or unethical on the part of the doctor or hospital; …

Professional Liability Of Abstracters, Thomas G. Roady, Jr.

Vanderbilt Law Review

One of the most vigorous rules in the law of conveyancing is that a vendee of real estate assumes the risk of all defects in title discovered after delivery of the deed. In short, the doctrine of caveat emptor applies with full force to the purchaser and to protect himself as fully as possible he must insist that the transaction proceed in such a manner as to give him recourse against someone should he sustain a loss by reason of the title risk taken or he must proceed in a manner that will eliminate (or at least minimize) the risks …

The Attorney's Liability For Negligence, John W. Wade

Vanderbilt Law Review

The concept of negligence was late in developing in the common law. Perhaps the first group of cases in which the idea began to take shape involved the liability of persons who professed competence in certain callings.' One of these "callings" was that of the attorney,and cases as early as the middle of the eighteenth century hold an attorney liable on this basis.

Canons 28 And 29 -- An Appraisal, Henry S. Drinker

Vanderbilt Law Review

How far should Canons 28 and 29 of the ABA's Canons of Ethics deter a lawyer from taking or participating in proceedings against a fellow lawyer in a matter involving the propriety of his professional conduct, by reason of the fact that such proceedings may injure such lawyer's professional reputation. The Canons do not clearly or fully cover this problem...

The solution of these problems related to participating in litigation against a fellow lawyer depends in each case to a great extent on the accompanying circumstances. Professional courtesy should not be distorted or overemphasized merely to avoid a disagreeable or …

Loss Of Citizenship -- Statutory Expatriation, David E. Nelson Jr.

Vanderbilt Law Review

There is no provision in the United States Constitution which expressly gives or denies Congress a right to deprive a person of, or prescribe a method whereby a person may lose, his citizenship. Yet in the Nationality Act of 1940 Congress provided for the involuntary expatriation of an American citizen upon the intentional commission of one or more of several specified acts. In 1957 three cases involving this statute reached the Supreme Court of the United States. The constitutionality of the section providing for loss of citizenship by voting in a foreign election was upheld; the one providing for loss …

Rights And Remedies Of Members In Internal Union Controversies In The Southern Jurisdictions, Fred Graham

Vanderbilt Law Review

There is a traditional reluctance on the part of judges to involve the courts in the internal affairs of labor unions. Consequently, a judge will often pause in the course of an opinion adjudicating a union controversy with an aside to the effect that:

"Of course, it is well understood that courts are indisposed to interfere with the internal management of an unincorporated, voluntary association as is here involved. We have held that the right of a voluntary association to interpret and administer its own rules and regulations is as sacred as the right to make them, and there is …

State Taxation Of Interstate Commerce, Gilbert S. Merritt Jr.

Vanderbilt Law Review

In Northwestern States Portland Cement Co. v. Minnesota,' the Supreme Court recently granted states the broad power to tax earnings of out-of-state corporations from business done within each state. Justice Clark, speaking for the majority, laid down the doctrine that "the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of inter-state affairs." The purpose of this note is to analyze the doctrine, its background and possible economic consequences.

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONFLICT OF LAWS--JURISDICTION--RESIDENCE AS A JURISDICTIONAL BASIS FOR DIVORCE

================================

CORPORATIONS-SECURITIES ACTS--DISTINCTION BETWEEN "CLASS" AND "SERIES" UNDER SECTION 16(b) OF SECURITIES EXCHANGE ACT

================================

CORPORATIONS-STOCK DIVIDENDS-INCONSISTENCY BETWEEN TRADITIONAL AND MODERN CONCEPTS OF STOCK DIVIDENDS

================================

CRIMINAL PROCEDURE-EVIDENCE-STATUTORY LIMITATION OF JENCKS DECISION

================================

EVIDENCE--SEARCHES AND SEIZURES--INADMISSIBILITY IN FEDERAL COURT OF EVIDENCE OBTAINED THROUGH AN UNREASONABLE SEARCH BY STATE OFFICERS

================================

EVIDENCE--WITNESSES-ABILITY OF ONE SPOUSE TO TESTIFY AGAINST THE OTHER IN FEDERAL CRIMINAL PROCEEDINGS

=================================

HABEAS CORPUS--FEDERAL COURT REMAND OF PETITIONER TO STATE COURT FOR NEW TRIAL

=================================

MUNICIPAL CORPORATIONS--TORT LIABILITY--DUTY TOPROVIDE POLICE PROTECTION TO INFORMERS

=================================

TAXATION--ESTATE TREASURY REGULATIONS ON GOVERNMENT …

Book Reviews, Robert B. Looper, Ralph Slovenko

Vanderbilt Law Review

Cases and Materials on Restitution By John W. Wade Brooklyn: The Foundation Press, Inc., 1958. Pp. xxxi, 903. $11.00.

reviewer: Robert B. Looper

=================================

Equal Justice for the Accused By a Special Committee of The Association of the Bar of the City of New York and The National Legal Aid Association New York: Doubleday & Co., 1959. Pp. 144. $3.50.

reviewer: Ralph Slovenko

Insuring Against Medical Professional Liability, Bernard D. Hirsh

Vanderbilt Law Review

The purpose of this article is to analyze the protection provided in medical professional liability policies. Part I consists of a discussion of some of the factors involved in the purchase of malpractice insurance and an examination of the principal insuring agreements, exclusions, and conditions stated in the standard policy. Part II is a summary of the results of a questionnaire sent by the Law Division of the American Medical Association to insurance companies to determine their opinions regarding insurance coverage in a series of hypothetical cases.

Liability For Negligence Of Pharmacists, George S. King

Vanderbilt Law Review

The purpose of this article is to discuss the liability of pharmacists for professional negligence.' Thus it will be limited to that conduct which arises out of their professional activity and is to be distinguished from liability which may arise out of their activity as a storekeeper or a druggist, using the latter term in the general sense to include all those who operate a drug store or in any fashion engage in the business of supplying drugs, whether licensed pharmacists or not. For example, the pharmaceutical manufacturer may well be classed as a druggist, but his legal responsibilities would …

Liability Of Funeral Directors For Negligence, Edgar E. Smith

Vanderbilt Law Review

Funeral directing cannot be classed absolutely as a "profession."'On the contrary, the funeral director's principal concern probably is the sale of caskets and burial supplies, thus making him a "merchant"or "trader." However, for purposes of rendering services in connection with the care and burial of the dead as well as in accommodating the family and friends of the deceased, the funeral director is considered a "professional man." It is the latter capacity which is under consideration here. It is inconsequential for legal purposes whether a mortician is referred to as a "funeral director," an "embalmer," or an "undertaker." An embalmer …

Professional Negligence Liability Of Public Accountants, Carl S. Hawkins

Vanderbilt Law Review

At least since 1905, in this country, accountants have been recognized as "a skilled professional class ... subject generally to the same rules of liability for negligence in the practice of their profession as are members of other skilled professions."' The question, then, is not whether the usual concepts of professional negligence apply to accountants, but how. What situations have produced malpractice litigation? What are the specific practices or omissions which have resulted in liability? And what are the limits of liability? Like other professionals, the accountant usually gets into the position where he must exercise his professional skill as …

Rights And Powers: What Are They?, Merton Ferson

Vanderbilt Law Review

One thing that distinguishes a lawyer from other educated persons is his facility in the use of legal concepts. And yet there is a current notion that the study of legal concepts, as such, is academic and im-practical. Professor F. H. Lawson, delivering the Cooley Lectures at the University of Michigan in 1953, notes that it is fashionable among both civil and common lawyers to disparage the use of concepts. He then goes on to say: "This is of course nonsense. The very persons who inveigh against the use of concepts have been so thoroughly educated in a system built …

The Duty To Warn Allergic Users Of Products, Dix W. Noel

Vanderbilt Law Review

There has been much recent development of the law in the field of products liability, and one of the more significant aspects of this development relates to harm suffered by allergic users of cosmetics, dyed clothing, and other familiar products. The medical descriptions of allergy are complicated and changing, but from a legal standpoint the significant factor is that an allergic reaction is one suffered by only a minority of the persons exposed to a particular substance. A description which brings out this factor is one which defines allergy or hyper-sensitivity as "the condition or state of an individual who …

Survey Extended -- The Literature Of Military Law Since 1952, John E. Hartnett, Jr.

Vanderbilt Law Review

The passage of six years since the publication of A Survey of the Literature of Military Law--A Selective Bibliography' has not seen any slackening in popular and professional interest in military law noted in the original article. Indeed, the wide attention directed to the area of military law by the controversial decisions of the Supreme Court in the Toth and Covert cases has in a measure increased the flow of comment. Accordingly, the writer considered it in order to collect and publish the bibliographical information on the literature which has appeared in the interim, and in some measure to appraise …

Judicial Review And Party Politics, Wallace Mendelson

Vanderbilt Law Review

It has been suggested that intrusion upon legislative policy by judicial review "is a consequence of that fragmentation of political power which is normal in the United States. No cohesive majority,such as normally exists in Britain, would permit a politically irresponsible judiciary to usurp decision--making [policy] functions, but, for complex social and institutional reasons, there are few issues in the United States on which cohesive majorities exist." When they do exist, as in the recent tidal wave of anti-communism, the Supreme Court is not apt to test its strength against them. Rather it practices a judicious self-restraint. Distinguishing between parliamentary …

Parody And Burlesque -- Fair Use Or Copyright Infringement?, Law Review Staff

Vanderbilt Law Review

In Columbia Broadcasting System v. Loew's, Inc.,' the Supreme Court of the United States aroused great concern in the entertainment world when it affirmed (by an evenly divided court) a lower court decision enjoining CBS from producing a television burlesque by comedian Jack Benny of the motion picture Gaslight. Plaintiff Loew's had claimed an infringement of their copyright. CBS countered with the contention that their parody was a "fair use" of plaintiff's work. In affirming, the Supreme Court, in its initial consideration of this issue, placed its imprimatur upon a decision which takes the position that parody and burlesque do …

Book Reviews, Stanley D. Rose, Wallace Mendelson (Reviewer), Lawrence Herman (Reviewer), William R. Anderson (Reviewer)

Vanderbilt Law Review

THE PRESIDENCY OF JOHN ADAMS, THE COLLAPSE OF FEDERALISM, 1795-1800. By Stephen G. Kurtz-- Philadelphia: University of Pennsylvania Press, 1957. Pp. 448. $8.50.

==============================

THE JEFFERSONIAN REPUBLICANS, THE FORMATION OF PARTY ORGANIZATION, 1789-1801. By Noble E. Cunningham, Jr.-- Chapel Hill: University of North Carolina Press, 1957. Pp. x, 279. $6.00.

==============================

THE SUPREME COURT FROM TAFT TO WARREN-- By Alpheus T. Mason-- Baton Rouge: Louisiana State University Press, 1958. Pp. 250. $4.95.

===============================

THE LAW OF AWOL. By Alfred Avins. New York: Oceana Publications, 1957. Pp. xxxi, 288. $4.95. --

===============================

TRAFFIC VICTIMS, TORT LAW & INSURANCE. By Leon Green. …

Book Notes, Law Review Staff

Vanderbilt Law Review

Labor Unions and Public Policy By Edward H. Chamberlin, Philip D. Bradley, Gerald D. Reilly and Roscoe Pound Washington, D.C.:American Enterprise Association, 1958. Pp. 177. $4.50.

==========================================

The Worker Views His Union By Joel Seidman, Jack London, Bernard Karsh and Daisy L. Tagliacozzo Chicago: The University of Chicago Press, 1958. Pp. xi, 300. $5.75.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Due Process of Law--Constitutionality of the Federal Youth Corrections Act in Its Application to Youthful Criminal Offenders

================================

Constitutional Law--Legislative Power--Infringement of Constitutional Guaranties by Demands of Legislative Investigating Committees for the Production of Membership Lists

================================

Courts--Process--Immunity of Nonresident Defendants in Federal Criminal Actions from Service of State Civil Process

================================

Damages--Installment Verdict in Tort Action

================================

Domestic Relations--Separation--Suit by Mentally Incompetent Wife

================================

Interstate Commerce--Hobbs Act--"Robbery" Provision Construed as Requiring Proof of Common Law Elements of Offense

================================

Taxation--Income--Determination of "Useful Life" of a Business Asset for Purposes of Depreciation

=================================

Taxation--Income--Full Payment of Tax Deficiency as …

Radiation Protection Regulation: An Opportunity For Cooperative Federalism, Robert L. Hamilton, William A.W. Krebs, Jr.

Vanderbilt Law Review

The purpose of this article is to explore the question of how governmental responsibility for regulation of radiation hazards associated with atomic energy activities may best be allocated between the federal government and the states. While division of such responsibility is theoretically not essential--it being legally conceivable that the federal government could shoulder the entire responsibility alone or could leave it entirely to the states--various factors which will be mentioned below appear to make some sort of division of responsibility a practical necessity. To explore this question of division of responsibility, we shall first review the nature of radiation and …

The Legal Aspects Of The Development Of Atomic Energy In The United Kingdom, C. J. Highton

Vanderbilt Law Review

The United Kingdom Atomic Energy Authority was constituted as a public corporation in 1954 by the Atomic Energy Authority Act.' The Government had decided in the previous year that the atomic energy undertaking, then in the hands of the Minister of Supply, should be transferred to a non-departmental organization and a committee of three under the chairmanship of Lord Waverley had been appointed to devise a plan for the transfer and to work out the most suitable form for the new organization. The committee fulfilled their task with admirable clarity, but many legal problems arose in drafting the bill, which …

Atomic Energy And The Law: A Bibliography, Eileen M. Murphy

Vanderbilt Law Review

To compile a bibliography, it is a prerequisite that one be a lover of books. It is hoped that this paper will be of assistance to those in need and secondarily, that it might possibly open the world of the bibliophile to many others and give Brooklyn a little competition. Atomic energy is a fascinating field for the bibliographer; the surface has yet to be scratched. The work presented is divided into seven sections:

I. Atomic Energy Legislation, 1946-1958.

II. Publications of the Joint Committee on Atomic Energy, 1945/46-1958.

III. Books. (Annotated.)

IV. Periodicals-U. S. and Foreign. (Annotated.)

V. Selected …

Book Note, Law Review Staff

Vanderbilt Law Review

Written primarily for the layman, this book reads much like a historical novel, detailing the lives of the two men whose personalities came into such violent conflict in a troubled time. Two-thirds of the book sets the stage for the trial which occupies the final third of the volume. The trial portion of the book consists mainly of quotes from the arguments of counsel, illustrating the rhetorical effects achieved by the attorneys in arguing a case that loomed large in the public eye. The authors--a husband and wife team, neither of whom appears to have a legal background--have successfully edited …

International Cooperation In The Peaceful Uses Of Atomic Energy, David F. Cavers

Vanderbilt Law Review

Today cooperation in the peaceful uses of atomic energy is occurring under bilateral agreements between the major atomic powers--the United States, the United Kingdom, and the Soviet Union--and many other nations. Schemes of cooperation on a regional basis are well advanced in Europe and are emerging elsewhere. A new international agency with an almost world-wide constituency, Communist China being the chief omission, has come into being. After a three-year interval, the second of two great international conferences for the exchange of knowledge concerning nuclear fission and thermonuclear fusion was held in Geneva in the past summer. At Geneva, American scientists …

Atomic Energy And World Trade, Aley Allan

Vanderbilt Law Review

In what follows an attempt is made first to arrive at an estimate of the pattern and the volume of trade in atomic equipment and services in the areas and for the period under discussion (1960-1970); and then a brief survey is attempted of the principal problems affecting this trade. Most of what is discussed is not the usual stuff of a legal periodical. But it will be apparent that a great deal of it has important implications for lawyers and lawyering. In any case one may be forgiven, perhaps, for trying to describe in skeletal form the context in …

Effects Of Radiation On Man, Clinton C. Powell

Vanderbilt Law Review

Shortly after the discovery of natural radioactivity and of x-rays(now more properly known as roentgen rays) during the final decade of the last century, it became apparent that these invisible radiations could produce serious effects on the human body in a relatively short period of time. Three or four decades ago additional effects became apparent in individuals who had received relatively large radiation exposures. The cumulative nature of radiation effects and the fact that detectable changes may be delayed for many years have become increasingly apparent with the passage of time. The rapid expansion in potential exposure accompanying the discovery …