Jurisprudence Commons^™

Supreme Court Attitudes Toward Federal Administrative Agencies, Joseph Tanenhaus

Vanderbilt Law Review

This article reports for a legal audience an examination by social science methods of the validity of certain hypotheses about the behavior of the United States Supreme Court and of its individual members. In order that this study may be viewed in broader perspective,the first part of the essay surveys the prior uses of social science methods in dealing with the judicial process.

Rudolf Von Jhering, Iredell Jenkins

Vanderbilt Law Review

It is often the fate of the giants of thought to have their names live on while their doctrines are neglected, and even for their reputations to wax as their influence wanes. Indeed, this happens at some periods to the work that all such men leave behind them; it is esteemed but not appreciated, acknowledged but not cultivated. The precise reasons for this fall into oblivion vary with every individual case, but there is one factor that is common and constant: the prominence within the work of these men of ideas that push inquiry beyond the comfortable limits that are …

Gustav Radbruch, Wolfgang Friedmann

Vanderbilt Law Review

As recently as the end of the last World War the name and work of Gustav Radbruch were virtually unknown in the Anglo-American legal world. In 1938 Roscoe Pound, in his encyclopedic survey, "Fifty Years of Jurisprudence," had given a concise account of Radbruch's legal philosophy in the context of his section on "neo-idealism." In 1944 Anton Hermann Chroust wrote a penetrating analysis of Radbruch's philosophy of law, and about the same time the first edition of the present writer's Legal Theory, published on the other side of the Atlantic, included Gustav Radbruch in the survey of major legal philosophers. …

Justice, Language And Communication, Julius Stone, G. Tarello

Vanderbilt Law Review

The present paper has been concerned to stress that jurisprudence, insofar as it is not limited to analytical jurisprudence, dare not overlook the distinctive qualities either of common language, or of the special language of lawyers. For what its authors deny above all is the utility of so defining a field--like the justice-field--which is a segment of common language, in terms of a special language or logical structuring similar to those used by lawyers. Nor do we think that the presence of considerations of justice (and therefore of common language statements) in the process of the operation of law, either …

Studies In Legal Philosophy, William R. Andersen

Vanderbilt Law Review

The hazards of planning a symposium in the field of jurisprudence derive largely from the fact that the field is itself ill-defined; the legitimate "province of jurisprudence," to use Austin's phrase, has never been fully agreed upon. A historical approach seemed reasonably satisfactory, however, and what follows is a series of studies of some of the great figures in the history of legal philosophy. Happily, no one of our contributors was satisfied with simple exegesis or even with appraising matters of purely historical importance. Each study is an attempt to deal critically with a facet of its subject which is …

Nietzsche, Thomas A. Cowan

Vanderbilt Law Review

I find that the attempt to assess Nietzsche's value to contemporary jurisprudence is fraught with extreme difficulty. Not only was Nietzsche perhaps the most controversial figure in the history of ideas:' this might have happened to one whose message was simple.But in Nietzsche's case the ideas themselves are highly controversial, paradoxical and even "immoral." Like every great thinker Nietzsche was more provocative to his enemies than to his friends. His enemies took their revenge by burying him under a deluge of refutation and abuse. Apparently Nietzsche was guilty of what might be called the crime of "universal treason." He gave …

American Legal Realism In Retrospect, Hessel E. Yntema

Vanderbilt Law Review

The ultimate question posed by the realistic movement in American jurisprudence is whether the practical conception of legal study and instruction as projected by legal realism, is really practical. There are two considerations among others which suggest that it is not, whether for training or research. The first is that the volume of existent law of any modern industrialized state is too vast and complicated for the human mind to master in all its technical detail and specialization during the brief time allotted. The second is that, even if this were possible, since the legal materials of the time and …

Book Reviews, Edgar Bodenheimer, Robert S. Lancaster, Stanley D. Rose, Lloyd B. Urdahl

Vanderbilt Law Review

The Great Legal Philosophers: Selected Readings in Jurisprudence Edited by Clarence Morris. Philadelphia: University of Pennsylvania Press 1959. Pp. 571. $10.00.

reviewer: Edgar Bodenheimer

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Law as Large as Life: A Natural Law for Today and the Supreme Court as its Prophet By Charles P. Curtis. New York: Simon & Schuster. 1959. $3.50.

reviewer: Robert S. Lancaster

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Cases and Materials on Juriprudence By John C. H. Wu. St.Paul: West Publishing Co. 1960. Pp. xliii, 719. $12.00.

reviewer: Stanley D. Rose

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The Law and Legal Theory of the Greeks: An Introduction By J.Walter Jones. New York: Oxford University Press, …

Equity -- 1960 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

While no decisions involving momentous developments in equity jurisprudence have been handed down during the past year, the Tennessee Chancery Courts have on several occasions demonstrated a tendency to free themselves from artificial restrictions on the operation of traditional equitable remedies. Illustrating this inclination are cases which resulted in decrees removing a cloud on title, granting partial specific performance of a land sale contract, awarding punitive damages, and granting injunctive relief against a county's perpetration of a nuisance. Another series of cases contributed some clarifying rulings regarding the scope of the right to jury trial in chancery proceedings.

Jerome Frank's Contributions To The Philosophy Of American Legal Realism, Julius Paul

Vanderbilt Law Review

Justice Holmes' famous statement that "the life of the law has not been logic: it has been experience' has had a profound effect on contemporary American jurisprudence. Holmes' monumental influence, together with the impact of positivism, American pragmatism,and more recently, psychoanalysis, have all played important roles in shaping the development of the school of American legal realism.

One of the most controversial and provocative members of this school was Jerome Frank, who was not only a prolific writer on matters legal, but also an eminent corporation lawyer, a government counsel, an administrator (a Commissioner and later Chairman of the Securities …

The Christian Lawyer As A Public Servant, William S. Ellis

Vanderbilt Law Review

This paper is concerned with the general topic of the Christian lawyer as a public servant. The paper attempts to describe very briefly the lawyer in his practice of law and in his relation to the legal and political systems, and the relevance of the Church to the law in each of these areas. The topic is a difficult one, for the writer would suggest that the lawyer by his very trade is "a Pharisee" and rarely a Christian.

Yet the lawyer is one of the most important and influential groups in this country. From the days of the pioneer …

Theology And Jurisprudence, Samuel E. Stumpf

Vanderbilt Law Review

Our era is one in which the law plays a far more important role than at any other time in history, for the law has insinuated itself into the control of almost every facet of man's life. If it was true over a century ago, as Chief Justice Marshall said, that "the judicial department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all,"' it is even more true today as the law has continued to proliferate its influence over an ever-widening range of human conduct. But it is precisely …

The Nature Of The Arbitration Process, William M. Hepburn, Pierre R. Loiseaux

Vanderbilt Law Review

The process of reaching a decision in labor-management arbitrations involves many uncertain factors. As to the final result in a case, we can perhaps say that it is in accord with the contract of the parties or that it is not; that it is "fair" or not; "practical" or unworkable; or that it accords with "public policy" or violates it. Some or all of the criteria discussed in this article may be satisfied in a particular case, but, as is proper, the parties are most often interested in basic equities, in whether an award can be brought within the ambit …

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 …

Federal Right Jurisdiction And The Declaratory Remedy, Herman L. Trautman

Vanderbilt Law Review

Why should we have federal district courts? What should be their primary function? These questions are fundamental to the formulation of a rational basis for the distribution of judicial power between state courts and the trial courts of the federal government.

Our American federal system seeks as a constant objective an appropriate division of governmental power between a national unit, which deals with problems requiring uniform treatment, and state units, which have responsibility for problems depending more upon local conditions. Applying the principle to the federal district courts, it seems clear that their primary function should be to adjudicate federal …

A Symposium On Federal Jurisdiction And Procedure: Forward, Joseph C. Hutcheson Jr.

Vanderbilt Law Review

"A law suit has always been an adversary proceeding and it probably always will be..." "The trial being considered, therefore, as an adversary proceeding, the necessity for the adoption of rules for its conduct which will keep the fight out in the open, give the opponents equal opportunity, and prevent judicial ambuscade, is imperative.'

Some Bugaboos In Pre-Trial, Alfred P. Murrah

Vanderbilt Law Review

In view of all that has been written and said for pre-trial conference,' it seems rather superfluous, if not presumptuous, to undertake to add to or enlarge upon the subject. Indeed, it might be efficacious to heed Judge Clark's suggestion that the procedural cause would be better served "if something could be done to stop us judges ... from publishing what we say" about the Rules. But even at the risk of overstating the case, those who have enlisted for the duration' never forego an opportunity to strike a blow on the side of simplified procedure. Pre-trial practice has been …

Book Reviews, Law Review Staff

Vanderbilt Law Review

Readings in Jurisprudence and Legal Philosophy By Morris R. Cohen and Felix S. Cohen New York: Prentice-Hall, Inc., 1951. Pp. viii, 944,$8.50

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Jurisprudence: Men and Ideas of the Law By Edwin W. Patterson Brooklyn: The Foundation Press, Inc., 1953. Pp. viii, 649.

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Jurisprudence--Its American Prophets By Harold Gill Reuschlein Introduction by Roscoe Pound Indianapolis: The Bobbs-Merrill Company, Inc., 1951. Pp. xii, 527, $7.50

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Law and Society in Evolution By Sidney Post Simpson and Julius Stone Introduction by Roscoe Pound St. Paul: West Publishing Co.,1948. Pp. xlvi, 692

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Law in Modern Democratic Society By Sidney Post Simpson …

Book Reviews, Irving Dilliard, Stanley D. Rose, Walter P. Armstrong Jr., Reginald Parker

Vanderbilt Law Review

The States and Subversion Walter Gellhorn, Ed. Ithaca: Cornell University Press, 1952. Pp. vii, 454. $5.00

reviewer: Irving Dilliard

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Freedom through Law

By Robert L. Hale New York: Columbia University Press, 1952. Pp. xvi, 591. $7.50

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The Group Basis of Politics--A Study in Basing-Point Legislation By Earl Latham New York: Cornell University Press, 1952. Pp. ix,244. $3.75

reviewer: Stanley D. Rose

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Richards on Insurance, Fifth Edition By Warren Freedman New York: Baker, Voorhis & Co., Inc. 1952. Pp. xxvii, 2692. $50.00

reviewer: Walter P. Armstrong, Jr.

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The Theodosian Code and Novels and the Sirmondian Constitutions: A …

What Is Happening In The Conflict Of Laws: Three Supreme Court Cases, Wendell Carnahan

Vanderbilt Law Review

An answer to the topical inquiry is "A great deal" but full explanation of the general answer to a very big question cannot be attempted in a single article. Instead, attention will be directed primarily to the opinions in three cases decided on the same day by the Supreme Court of the United States. These cases present problems in the segments of conflict of laws dealing with principles of forum non conveniens and full faith to a statute,' jurisdiction over a foreign corporation and a combination of choice of laws rules and judicial recognition of an alimony award. These cases …

The Moral Element In Supreme Court Decisions, Samuel E. Stumpf

Vanderbilt Law Review

Does the United States Supreme Court decide cases on the basis of moral and ethical value judgments? Such a question may reveal a misunderstanding of the nature of law as well as the nature of the judicial process. Moreover, to expect the Court to roam in the field of morals may indicate a failure to take into account the limitations placed upon the Court both by our federal system and by the division of powers. Indeed, a reading of the Supreme Court decisions for the past twenty years reveals a manful resistance on the part of the judges to intrude …

Congress Or The Courts As Final Arbiter In Tax Disputes?, William J. Bowe

Vanderbilt Law Review

During the last two years the Supreme Court of the United States has handed down only five income tax opinions. The box score stands four for the Government, one for the taxpayer. None of the cases involved modifications in fundamental concepts of tax law or resulted in major policy changes in the administration of the fiscal system. The record for the taxpayer is far more impressive in the Congress than it is in the courts. As will be pointed out later Congress rather than the Supreme Court is tending to become the final arbiter in tax disputes. Problems that were …

The Role Of The Privy Council In Judicial Review Of The Canadian Constitution--A Post-Script, Edward Mcwhinney

Vanderbilt Law Review

In its Preamble, the Constitution of Canada speaks of the desire of the Provinces of Canada to be "federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom." Historically, then, the Constitution of Canada like the Constitution of the United States, stems from a compact between a number of different territorial units: the Provinces of Lower Canada (Quebec), Upper Canada (Ontario), and the two eastern maritime Provinces of Nova Scotia and New Brtnswick, joined together in 1867 to form the new …

State Statutes And The Full Faith And Credit Clause -- Hughes V. Fetter, Jay A. Hanover

Vanderbilt Law Review

The full faith and credit clause of the Constitution' has commonly been regarded as concerned only with the enforcement of foreign judgments between the states of the Union. The numerous cases which have come before the Supreme Court have dealt almost exclusively with the "judicial Proceedings" phrase of the clause, while the words "public Acts" and "Records" have been, for the most part, left untapped as a source of decisional law. It has only been in recent years that the Supreme Court has broadened its approach by applying the full faith and credit clause to the legislative acts of the …

Book Reviews, Carl B. Swisher, Elvin E. Overton (Reviewer), Jay Murphy (Reviewer), Charlotte Williams (Reviewer), Alexander Holtzoff (Reviewer)

Vanderbilt Law Review

Book Reviews

LIONS UNDER THE THRONE

By Charles P. Curtis, Jr.

Boston: Houghton Mifflin, 1947. Pp. xviii, 368. $3.50

MR. JUSTICE BLACK: THE MAN AND His OPINIONS

By John P. Frank (Introduction by Charles A. Beard)

New York: Knopf Company, 1949.Pp. xix, 357. $4.00

ON UNDERSTANDING THE SUPREME COURT

By Paul A. Freund

Boston: Little, Brown & Co., 1949. Pp. vi, 130. $3.00

MELVILLE VESTON FULLER: CHIEF JUSTICE OF THE UNITED STATES, 1888-1919

By Willard L. King

New York: Macmillan Company, 1950. Pp.394. $5.00

CHIEF JUSTICE STONE AND THE SUPREME COURT

By Samuel J. Konefsky (Prefatory Note by Charles A. …

Intrinsic And Extrinsic Fraud And Relief Against Judgments, Harold C. Dedman

Vanderbilt Law Review

Closely akin to the doctrine of res adjudicata is that which will not allow a court of equity to grant relief against a fraudulently acquired judgment unless the fraud is shown to have been "extrinsic" or collateral rather than "intrinsic" fraud. According to this rule, to warrant equitable relief against a judgment on the ground of fraud, it must appear that the fraud was practiced in the very act of obtaining the judgment. Relief is granted on the theory that through fraud extrinsic and collateral to the actual proceedings before the court, the unsuccessful party has been prevented from fully …

The Position Of Statutory Construction In Present Day Law Practice, John W. Macdonald

Vanderbilt Law Review

Even the title assigned to this article emphasizes a point of view. We will consider the position of statutory construction not from the aspect of judges, appellate or trial, who must decide cases. Instead we are to look at the subject from the point of view of the practitioner, the lawyer himself. The practice of law is of course varied. And there are many fields of knowledge which control that practice. Some of these obviously do not involve law at all. The lawyer is a litigator, an advocate in court or before quasi-judicial bodies. He is also a counsellor, an …

Cooperative Action For Improved Statutory Interpretation, Frank E. Horack Jr.

Vanderbilt Law Review

During the past quarter century there has been a constant acceleration in legal periodical comment concerning statutory construction. Judges, practicing attorneys and law professors all have echoed basic dissatisfaction with the operation and application of the rules of statutory interpretation. Some would return to the "safe old ground" of literal interpretation; others would find relief in an expanded use of extrinsic aids; all find the process in a state of confusion and disintegration.

Trends In The Use Of Extrinsic Aids In Statutory Interpretation, Glendon M. Fisher Jr., William J. Harbison

Vanderbilt Law Review

As evidenced by the increasing numbers of court decisions which involve statutes,' and by the large and continually growing literature in the field, the subject of statutory interpretation is one of the most important in modern law. Although it is a field in which exact rules of automatic application can very seldom be formulated, only recently a member of the Supreme Court pointed out the great need for a set of "consistently accepted principles of interpretation." Since the primary purpose of all statutory interpretation is to ascertain the meaning and to effectuate the purposes of the legislature, and since words …

Statutory Construction In Resolving Conflicts Between State And Local Legislation, Charles S. Rhyne

Vanderbilt Law Review

My contribution to this symposium will consist of the advancement of one main thesis and four subordinate and supporting ones. My main thesis is simple indeed. Procedural rules must be viewed as grants or creations of judicial power. My subordinate theses then indicate certain complications showing that in practice the matter cannot be thus wholly disposed of. Though too much reform has so assumed, it turns out that telling a court it has power does not guarantee exercise of that power. Judicial inertia, prece- dent-mindedness, love of technical niceties-all play their part in halting procedural improvement. So does, even more, …