Law Commons^™

Book Review, John F. Kennedy

Vanderbilt Law Review

A substantial body of literature has been written about the Senate, but Citadel performs a special role in, for the first time, portraying the Senate as an organic unit. The anecdotes and personal recollections liberally used by the author aptly illustrate the various broad principles and details he has fashioned into an image of a vital, living force in our nation's growth and development, the United States Senate. Those anxious to understand the operations of the Senate and to gain an insight into the complex interplay of personalities and forces that lie behind the usual surface view of this unique …

Preparation And Presentation Of An Arbitration Case, Joseph S. Murphy

Vanderbilt Law Review

This article deals primarily with the preparation and presentation of a case in labor arbitration. However, much of what is said here is equally applicable to the preparation and presentation of a commercial case. It is clear that the comments with regard to documents, witnesses, orderly presentation, and the like are basically the same whether one is arguing that a construction contract has been breached and that the fault lies with the contractor who was guilty of delayed construction, or whether one is defending against a charge of vio- lation of an overtime clause dealing with equal distribution. In each …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Application of Privilege against Self-Incrimination to Denaturalization Proceedings

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Constitutional Law--Implied Immunity--Federal Contractor not Subject to State Licensing Requirements

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Evidence--Confession of Co-Conspirator Admissible under Proper Instructions in Joint Trial

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Federal Jurisdiction--Injunctions--Judicial Code Section 2283 is Inapplicable to Injunctions sought by the United States

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Judgments--Res Judicata--Voluntary Absence of Insured Constitutes Extrinsic Fraud

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Labor Law--Unemployment Insurance--Double Affirmation Clause Held Unconstitutional

Book Notes, Law Review Staff

Vanderbilt Law Review

The Law of Torts By Fowler V. Harper and Fleming James, Jr. Boston: Little Brown & Co., 1956. Pp. xiv, 2062. $60.00.

This treatise is a valuable and significant contribution to Tort law.It is composed of two volumes of text and a third volume containing tables of cases, statutes and articles, and an index.

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Management Rights and the Arbitration Process

Edited by Jean T. McKelvey. Washington: Bureau of National Affairs, 1956. Pp. viii,237. $3.50. This is a collection of the papers delivered at the Ninth Annual Meeting of the National Academy of Arbitrators held in January,1956. They include treatments …

Preparation And Presentation Of An Arbitration Case, Joseph S. Murphy

Vanderbilt Law Review

This article deals primarily with the preparation and presentation of a case in labor arbitration. However, much of what is said here is equally applicable to the preparation and presentation of a commercial case. It is clear that the comments with regard to documents, witnesses, orderly presentation, and the like are basically the same whether one is arguing that a construction contract has been breached and that the fault lies with the contractor who was guilty of delayed construction, or whether one is defending against a charge of violation of an overtime clause dealing with equal distribution. In each case …

Drafting Of Grievance And Arbitration Articles Of Collective Bargaining Agreements, Charles A. Reynard

Vanderbilt Law Review

When the parties to collective bargaining negotiations formulate the provisions of their contract relating to grievances and arbitration, they are establishing the basic system of private administrative law that will govern the plant community for the period of the agreement. This is obviously a task that involves more than mere words and phrases. The maturity of their relationship, their respective understandings of the place of collective bargaining in our industrial society, the size and nature of the plant, and innumerable other considerations will substantially influence the choice of language and procedures adopted in the framing of these provisions. Because of …

Recent Cases, Law Review Staff

Vanderbilt Law Review

RECENT CASES

AGENCY--INDEPENDENT CONTRACTOR--"ONE WAY LEASE" EFFECTIVE TO TERMINATE RELATIONSHIP

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COURTS--CIVIL RIGHTS ACT--IMMUNITY OF JUDGE FOR ACTS COMMITTED IN THE EXERCISE OF A JUDICIAL FUNCTION

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COURTS--CONTEMPT--VIOLATION OF COURT RULE BANNING PHOTOGRAPHY

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CRIMINAL LAW--ENTRAPMENT BY STATE OFFICIAL AS A DEFENSE TO FEDERAL PROSECUTION

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DAMAGES--BREACH OF WARRANTY--RECOVERY FOR LOSS OF PROFITS

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FEDERAL COURTS--CHOICE OF LAW--APPLICATION OF ERIE DOCTRINE TO DIVERSITY CASES INVOLVING FEDERAL COMMERCIAL PAPER

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TORTS--BATTERY--CONSENT OF MINOR TO SIMPLE OPERATION AS A DEFENSE

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TORTS--DUTY TO ACT--EMPLOYER'S ASSUMPTION OF A DUTY BY GIVING MEDICAL EXAMINATIONS TO EMPLOYEES

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Voice Identification, Writing Exemplars And The Privilege Against Self-Incrimination, Russell J. Weintraub

Vanderbilt Law Review

The problems involved in defining the nature of the privilege against self-incrimination and in setting its limits have been much mooted in recent years. Though these problems have been brought into sharp focus by the present very urgent and certainly justified concern for our national security, they are problems which are inherent in the privilege itself. They have been with us for a long time.

One of these problems concerns the extent to which a person may refuse to participate in criminal proceedings brought against him. Doubtless not even the most liberal proponent of the privilege would claim that an …

The Law Of Presumptions In Tennessee, E. William Henry

Vanderbilt Law Review

Nowhere in the law of evidence does greater confusion exist than in the concept of a presumption and its effect. Not only is the confusion widespread, but it is intensified by the intransigence of most judges in their rejection of the views of respected writers in the field. No attempt will be made here to restore order to the Tennessee law of presumptions. The purpose of this note is merely to catalogue some of its inconsistencies.

The Effect Of Desegregation On Public School Bonds In The Southern States, James S. Gilliland

Vanderbilt Law Review

In the wake of Brown v. Board of Education' six recent cases arising in four states have involved a constitutional challenge to the validity of an issue of public bonds to finance segregated schools. In each case it was contended that bonds authorized and approved according to statute could not be validated or the proceeds used for a purpose now unconstitutional. Confronting this apparently meritorious contention was the impelling practical consideration of furthering public education in the already lagging South. Legal answers, embodying this equitable consideration, ranged from a plea to jurisdiction, to interpretation of a statute or bond, to …

A Study Of Domestic Relations, Juvenile And Family Courts In Tennessee, George E. Barrett, Thomas A. Higgins

Vanderbilt Law Review

The rapid growth of industry in Tennessee, with the concomitant increase in urban population, has emphasized the gravity of certain social problems confronting the state. Not the least among these is the present state of the domestic relations and juvenile courts. The seriousness and complexity of this problem was pointed up in the last session of the General Assembly (79th Session) at which time the Senate passed a resolution authorizing the legislative council tounder take a study of the present system and to report their findings and recommendations to the next session of the General Assembly.'Pursuant to this resolution the …

Book Reviews, Robert N. Cooks, Kenneth B. Hughs (Reviewer), Jess Halstead (Reviewer), Walter P. Armstrong, Jr. (Reviewer), Howard J. Graham (Reviewer)

Vanderbilt Law Review

Current Legal Problems 1956 Edited by G. W. Keeton and G. Schwarzenberger London: Stevens & Sons, 1956. Pp. vii, 275. $5.55

reviewer: David F. Maxwell

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Some Problems of Proof under the Anglo-American System of Litigation By Edmund Morris Morgan. New York: Columbia University Press, 1956. Pp. xii, 195. $3.50

reviewer: Charles T. McCormick

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Effective Drafting of Leases with Check List and Forms By Milton N. Lieberman Newark: Gann Law Books, 1956. Pp. viii, 974

reviewer: Robert N. Cooks

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The Law and One Man Among Many By Arthur E. Sutherland Madison: University of Wisconsin Press, 1956. Pp. ix, …

The Federal Loyalty -- Security Program, Harold W. Chase

Vanderbilt Law Review

In the long run, the Report of the Special Committee on the Federal Loyalty-Security Program of the Association of the Bar of the City of New York will undoubtedly have a profound effect on the national government's complex of programs designed to ferret "security risks" out of government, industrial and maritime jobs. Indeed, the short-run impact has been impressive....

In sum and substance this is a very fine report, my own criticisms notwithstanding. In addition to the portions of the report discussed in detail above there are excellent chapters on the issues involved, the Communist threat, the operation of the …

Rules Of Evidence -- Substantive Or Procedural?, Edmund M. Morgan

Vanderbilt Law Review

It hardly needs stating that the definition of a legal word or term depends upon the purpose for which it is to be defined. If in framing a generalization designed to state a rule or make a discrimination applicable in a specific topic or field of the law, the courts use specified terms, it by no means follows that they intend those terms to be understood in the same sense in generalizations dealing with problems in another topic or field. The words, substance or substantive and procedure or procedural, have been used most frequently in three separate situations: (1) in …

An Analysis Of Marriage Trends And Divorce Policies, Robert S. Redmount

Vanderbilt Law Review

Divorce law, theoretically, is the embodiment of policies governing the dissolution of marriage. It is the legal expression of the values attached to marriage and implicitly states the law's understanding of the marital relationship, at least that part of it that reflects conflict and disturbance.

The analytic discourse which follows briefly assesses the roles and meanings of marriage, the sources and consequences of marital disharmony and the complications of marriage dissolution. The history and composition of divorce policies and laws is carefully savored and sharply scrutinized for fidelity to the reason and experience of marriage. The outcome of this analysis …

Holmes And Brandeis: Companions In Dissent, Samuel J. Konefsky

Vanderbilt Law Review

In the 1920's, the words "Justices Holmes and Brandeis dissented" had become a familiar refrain in discussions about the work of the Supreme Court. This affinity between two men so unlike each other in background and method naturally puzzled the observers, and the effort to explain their relationship has produced two mutually contradictory theories. One view holds that though the two jurists approached problems differently, they usually arrived at the same conclusion because they shared a common philosophy on all really basic issues. "Oliver Wendell Holmes and Louis Dembitz Brandeis," a contemporary press comment read, "have achieved a spiritual kinship …

Justice William Cushing And The Treaty-Making Power, F. William O'Brien S.J.

Vanderbilt Law Review

Although the work of the Supreme Court during the first few years was not great if measured in the number of cases handled, it would be a mistake to conclude that the six men who sat on the Bench during this formative period made no significant contribution to the development of American constitutional law. The Justices had few if any precedents to use as guides, and therefore their judicial work, limited though it was in volume, must be considered as stamped with the significance which attaches to all pioneer activity. Moreover, most of this work was done while on circuit …

Samuel F. Miller, Justice Of The Supreme Court, 1862-1890, Charles Fairman

Vanderbilt Law Review

It was in the summer, about 1880. Miller, on the rounds of his circuit, had come to Omaha, where, in chambers, he was to hear counsel argue a mining case from Colorado. In the hall of the post office building, Miller saw Roscoe Pound (aetat circa 101 and already known to the Judge), and greeted him with the inquiry: "Well, sonny, how would you like to come with me while I hear a case?" Gladly the lad went along, and seated himself on the floor, Turkish-fashion, under the Judge's desk. The controversy concerned what was then a new and highly …

A Sketch Of John Marshall Harlan's Pre-Court Career, David G. Farrelly

Vanderbilt Law Review

Like other men before and after his time, John Marshall Harlan of Kentucky left his imprint on the law. Nearly 34 years on the Supreme Court of the United States gave Harlan ample opportunity to express his opinions on a host of legal questions. Sitting on the high bench as he did from 1877 to 1911, public problems passed before him for review in the form of litigation. During that post-Civil War period as today there was discrimination against the Negro in American society. Despite the constitutional guaranties of the 13th, 14th and 15th Amendments, Negroes were not accorded the …

Fair Trade And The State Constitutions -- A New Trend, Edward J. Kohrs

Vanderbilt Law Review

The proponents of resale price maintenance will mark the years 1955 and 1956 as a period of major setbacks. The past two years have seen the highest courts of eight states' invalidate state Fair Trade laws. The rapid development of this trend is surprising in view of the fact that prior to 1949, the constitutionality of such legislation under the state constitutions had been upheld by every state court in which it was attacked, and was widely regarded as a settled proposition.

Much has been written explaining, defending, and condemning the concept of Fair Trade, and no attempt will be …

The Utopian Pilgrimage Of Mr. Justice Murphy, John P. Roche

Vanderbilt Law Review

On July 19, 1949, Frank Murphy, Associate Justice of the Supreme Court of the United States died in Detroit. The liberal press mourned the passing of a mighty warrior for civil liberty. Other journals observed the protocol of the occasion by politely deploring his death, the University of Michigan Law School prepared a memorial issue of the Michigan Law Review' in honor of its distinguished alumnus, a few encomiums appeared in the law journals, then silence set in. A silence which has been broken only by occasional slighting references to Murphy's talents, and by a word-of-mouth tradition in law school …

Recent Judicial Biographies: A Composite Review, Otis P. Dobie

Vanderbilt Law Review

The great Chief Justice of our time has been considerably recalled in the period under review. Pusey,' in a lengthy readable treatment that does not emphasize the legal, views Hughes as a liberal of circa 1910 who was uncomfortable but acquiescent amid the 1930's progressions. Interesting tidbits include a moving account of Hughes' mission to Holmes to request his resignation; bar letters to White complaining of the vagueness of Holmes' opinions; the friendship of Hughes with White and Harlan; Hughes' concern over the tendency of the New Deal brethren to expansively construe statutes and approve state taxes on interstate commerce …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Alimony may be Awarded Wife after Husband obtains Ex Parte Divorce

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CONFLICT OF LAWS--FORUM NON CONVENIENS APPLIED FOR PROTECTION OF LOCAL INTERESTS

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CONSTITUTIONAL LAW--IMPAIRMENT OF CONTRACT--EXISTING AUTOMOBILE DEALERSHIP CONTRACT MAY BE CHANGED TO PROTECT THE GENERAL WELFARE

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CRIMINAL LAW--BIGAMY--GOOD FAITH BELIEF THAT ACCUSED WAS DIVORCED IS A DEFENSE TO A CHARGE OF BIGAMY

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EVIDENCE--RELEVANCY--ADMISSION OF HABIT EVIDENCE TO SHOW DUE CARE

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FEDERAL TORT CLAIMS ACT--SCOPE OF EMPLOYMENT--GOVERNMENT'S LIABILITY FOR SKYLARKING AIRCRAFT

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INCOME TAXATION--RESERVE WITHHELD BY FINANCE COMPANY AND CHARGEABLE WITH AMOUNT OF DISHONORED NOTES NOT ACCRUABLE AS INCOME TO INDORSER

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LABOR …

Judge Hand's Views On The Free Speech Problem, Robert S. Lancaster

Vanderbilt Law Review

Judge Learned Hand has been for many years a lawyer's lawyer. His opinions are liberally sprinkled through the case books; commentaries on legal matters cite his opinions with increasing respect and admiration; but to many people he is the judge who upheld the conviction of the eleven communists in New York on a question involving the limits of free speech. Scholars of parts and even some lawyers do not know that he anticipated the Supreme Court's "clear and present danger" test by two years, or that his contribution to the law of free speech is by no means confined to …

Chief Justice Taney: Prophet Of Reform And Reaction, Robert J. Harris

Vanderbilt Law Review

Roger Brooke Taney's judicial career began and ended in controversy.' His appointment as Chief Justice in 1836 came not long after his nomination to be Secretary of the Treasury had been rejected and his nomination to be an Associate Justice of the Supreme Court had been indefinitely postponed because of his role as a central figure in the great controversy between the Jackson administration and the Bank of the United States. These successive nominations of Taney to high position evoked a flood of partisan invective against him in an age which was hardly characterized by restraint. In the course of …

The "Liberalism" Of Chief Justice Hughes, Samuel Hendel

Vanderbilt Law Review

Charles Evans Hughes ascended the bench as Chief Justice of the United States in February 1930 in the midst of the most serious and steadily worsening economic crisis in American history; a crisis which was to put the institution of judicial review, the Court, and the leadership of its Chief Justice to their severest test. "One may search in vain," said Harlan F. Stone, "for a period in the history of the Supreme Court in which the burden resting on the Chief Justice has been so heavy or when his task has been more beset with difficulties."Now, twenty years after …

Mr. Justice Frankfurter -- Law And Choice, Wallace Mendelson

Vanderbilt Law Review

In an opinion that seems destined to live as long as the ideals of democracy survive, Justices Holmes and Brandeis rejected their colleagues' narrow conception of free speech, yet concurred in the judgment affirming conviction. Though the accused had claimed protection under the appropriate constitutional provision, she had failed at the trial level to raise the "clear and present danger" issue. Raising it in the Supreme Court was futile, thought Holmes and Brandeis, because "Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied [in the …

The Supreme Court Of History, Howard Jay Graham

Vanderbilt Law Review

Our theme is simple, overpowering: Justices of the Supreme Court, a number of whose predecessors destroyed the bulk or their correspondence, and who themselves may be tempted to do likewise, nonetheless quite evidently desire, and certainly deserve, faithful (if not quite full) reconstruction, both of their individual roles, and of the Court's, in our constitutional scheme. Much of this story, to quote the then Professor Frankfurter, is "largely irrecoverable,"' yet indispensable to an understanding of our institutions.

Manifestly, something of a paradox is involved in our whole attitude toward judicial history. Much of the law, particularly judge-made public law, is …

Mr. Justice Rutledge And The Roosevelt Court, Alfred O. Canon

Vanderbilt Law Review

The career of Mr. Justice Wiley Blount Rutledge on the Supreme Court of the United States came to an end on September 10, 1949. His passing signified the end of a man's work--and the end of an era. As Rutledge's last opinion became a part of American constitutional history, the Roosevelt Court disappeared and a new alignment of majority and minority was born. The influence of Rutledge in this important period of constitutional development will be difficult to measure until the broader outlines of contemporary social, political, economic, and legal trends are more firmly sketched in the future. A justice's …

The Limits Of State Jurisdiction In Affording Common Law Protection To Clothing Designs, Leonard S. Elman

Vanderbilt Law Review

The recent case of Dior v. Milton' indicates that the "misappropriation" doctrine of the law of unfair competition will be applied to impose liability upon unlicensed users of original clothing designs. The purpose of this article is to outline briefly the statutory protection presently available for such designs, and to discuss certain problems raised by the Dior v. Milton decision.

The Constitution, in article I, section 8, provides that Congress shall have power to enact legislation "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their …