Louisville Lawyer
VOL. IV LOUISVILLE. KY .• APRIL. 1959 No. 2 
U of K Offers Short Course On UCC 
UL Resumes Work With Legal Aid Society
Students To Gain Practical Experience
As of the beginning of the spring semester the U of L Law School
resumed student participation in working with the Legal Aid Society. In times
past students took a very active role in working with the Society, particularly
when it was downtown and adjoined to the Law School.
The purpose of the Legal Aid So­ciety
is to provide legal advice and
services to people who for financial
reasons are unable to secure it other­wise,
to extend general advice on
legal matters, including domestic diffi­culties
and debt adjustments, and to
provide court representations in cer­tain
types of cases.
Since the students cannot engage
in the practice of law anything that
they do will be checked by Professor
Robert Foster. However, they will be
interviewing by themselves, collecting
facts, analyzing problems, and draw­ing
up documents, which will be
signed by Foster if they require a
lawyer's signature.
At the present time five students
have been going to the Society on its
heaviest days, which are Mondays and
Fridays, to observe procedure. In a
few weeks they will be interviewing
clients under th e supervision of Foster
and members of the Society's staff.
The intervi ews will center around
economic and domestic matters. The
bulk of the economic cases are debt
collections where the cli ent is the
debtor, such as a garni shment action.
Domestic matters deal mainly with
djvorce problems. Much of the work
is referral to other organizations as
some of the ques tions are not purely
legal problems.
Typical cases of court representa­tions
are defending debt actions
where the amount is nominal, divorce
actions, which are taken only if there
is some social benefit to be gained by
the divorce, support of children and
wife cases, minor landlord and tenant
altercations.
When the initi al group of students
becomes experienced the Law School
plans to expand the program to more
and more students. Seniors are being
accepted primarily. Some juniors par­ticipate
a half day a week.
Foster believes that "students need
experience in dealing with live cases
and the Legal Aid Society needs help
in light of the tremendous volume oi
work it has." He states that the pro­gram
will be mutually benefi cial be­cause
"it should help students in the
practical appli cation of law while in
their study at Law School and it
should be a practical benefi t to the
Society itself.'
Law Short Course Meets In University Center
UL AV Photo
The first class offered in ihe Spring Semester of ihe Continuing Legal
Education program was a short course on ihe legal problems of a
small business enterprise. The class mei in ihe main conference room
on ihe second floor of ihe new University Center. The parties pictured
above participated in ihe awarding of certificates io those who com­pleted
ihe course. They are from left io right. Dan Marshall. chairman
of ihe education committee of ihe LBA; Irwin G. Waterman. lecturer;
Robert L. Sloss. president of ihe LBA; Bernard Himmelfast, lecturer;
P rofessor William B. Peden; James H. Frazee. past president of the
LBA; Dean Marlin M. Volz, U of L Law Scohol Dean; and William C.
Huffman, Dean of University College.
U of L And Bar Association Join U of K
To Explain Code To Practicing Lawyers
by Jim Webb
All major sections of the Uniform Commercial Code will be the subject
of a short course to be offered at the University of Kentucky June 23, 24,
and 25. The UCC, upon its surtace, brings about many comprehensive and
substantial changes in Kentucky law. It ref1ects the evolution of the complex
relations which have developed in the business world since the basic uniform
statutes were first written. Since commercial activities often entail the appli­cation
of many of the uniform statutes, it was felt that it was necessary to
attempt to unite the different fi elds covered by the uniform statutes into a
single body of law if the parti es were to understand their relationship.
The different phases of commercial
law covered by the UCC will be the
subject of ten lectures to be given by
experts who have earned recognition
in their respective fields in the state
and nation. Each lecture wil be sup­plemented
by panel discussions led by
J\:entucky attorneys. The speakers will
participate in tne discussions. Out­lines
of all the lectures will be tur­nished
all registrants.
The program will be opened by W.
L. Matthews, Dean of the College of
Law at the University of Kentucky.
The first lecture on the Code will be
a birdseye-view of it in wruch its
scope, purposes, and functions will
sutter close scrutiny by James B.
Young, the chairman of the Kentucky
State Bar Committee on the UCC.
Generally the Code provides for tne
development of legal principles which
will provide for commercial expedi­ency
with the intent ot making it
possi ble for tne courts to 1neet 11ew
problems as they arise wnile rernaJu­mg
within the u.tsJc structu1e ot tne
Code.
The second and third ar ticles will
be the subject of the second lecture.
Particular emphasis will be placed
upon those sections which have at­temp
ted to li beralize the in terpreta­tions
placed upon the free..Jom to con­tract.
The Uniform Sales Act is
thoroughly rewritten in the second
article while the article on documents
of title rewrites the Uniform Bills of
Lading Act and the Uniform Ware­house
Receipts Act. The lecturer in
this instance will be \Villiam D.
Hawkland, Professor of Law, Rutgers
University.
Pisano Is Chairman
Alfonso L. Pisano, Director of Re­search,
Legislative Research Commis­sion,
and Secretary to Kentucky State
Bar Association Committee on the
UCC will act as general chairman of
all panels.
Robert vV. Foster, Professor of Law,
University of Louisville, will preside
in the first afternoon session and
Debaure Bryant, Assistant G e n e r a l
Counce!, Brown and Williamson To­bacco
Corporation, will join him for
the panel discussion.
Fairfax Leary, of Philadelprua, will
speak on the topic of commercial
paper. This is principally a rewritting
of the Uniform Negoti able Ins truments
Law. Mr. Leary will be joined by
Mr. Foster, J. T. Orendorf, of Cole­man,
Harlin & Orendorf, Bowling
Green; and Selden Y. Trimble, or
Soyars, Trimble and Breafffitt, Hop­kinsville,
for the panel discussion.
Bulk Sales Acts
The article dealing with bulk sales
is principally a synthesis of the various
bulk transter acts whk h have been
enacted in the various states. Robert
S. Dorsey, Bulh tt, Dawson & Tarrant,
Lowsville, will be th e speaker and
.l:'rotessor Hawkland, Edward R. Hays,
Baird and Hays, Pikeville; Ernest
Woodward, II, Woodward, Hobson &
F ulton, Louisville; William G. Craig,
Byron, Sandidge, Holbrook & Crrug,
vwensboro, Will join him to form the
panel.
The Wednesday morning session will
open with Dean Marlin M. Volz, Uni­vt:
rsity of Louisville, presiding. The
first speaker will be Bart Brown, Vice­Presiaent
and Trust Officer, Citizens
Fidelity Bank & Trust Company,
Lowsville, discussing the bank de­posits
and collections section of the
Act. This articl e attempts to state a
series of workable rules under which
banks can hope to expedititiously
handle the tremendous volume of
business they are faced with daily.
In addition to th e speaker the panel
will be comprised of Colvin P. Rouse,
House & Rehm, Versailles; E. Paul
Willi ams, Executive Vice-President,
Second National Bank, AshJand; R. D.
Willock, President, The Citizens Na­tional
Bank, Bowling Green; Robert
E. Hatton, Attorney, Louisville.
The rest of the day will be devoted
to a discuss ion of Article IX whk h re­places
all of the present laws govern­ing
the use of personal property as
security for obtaining money or credit.
The framers of the law recognized
(Cont. Page 2, Col. 3)
Two THE LOUISVILLE LAWYER
Grades Are First And Activities Second
Both Are Found Necessary For Students
When an LL.B. is presented to a graduate of the University of
Louisville does it represent the efforts of the individual to best
determine the most satisfactory position for him within the com­munity?
Have his efforts, tor three academic years, been directed
toward a recognized legal need which he has endeavored himself
to satisfy?
The faculty of the school of law will determine whether or not
he has sufficient knowledge of the law to assume the responsibility
of advising others as to tneir legal rights and responsibilities. It is
up to the individual to determme in what capacity he can best
apply this knowledge.
It is with this purpose in mind that the law student finds so
many opportunities in the field of extra-curricular activities beckon­ing
to him. Too many activities may well burden him so that he
is unable to acquire that knowledge of the law which is a pre­requisite
for attaining his degree. However, through careful selec­tion
these activities can aid the student by enabling him to acquire
pre-graduation experience in fields requiring an application of legal
knowledge.
One facet of these activities with which we are all familiar is
the Moot Court program. There the student is required to rely
upon his own resources as he represents his mythical client before
the court.
The upper classmen are presented with opportunities in the
Legal Aid Society and Judicial Assistantship programs. In the
Legal Aid program they are peqnitted, under supervision, to advise
people with legal problems who, through financial stress, are unable
to seek relief through the usual channels. As Judicial Assistants
the Circuit Court judges permit them to sit with them on motion
day, when motions are argued and do research for the judge upon
the problems presented before him.
Writing as such is not particularly emphasized but its im­portance
is recognized. In addition to the phase with which we
are most familiar, the writing of exams, the feverish hours spent
preparing moot court briefs bear mute testimony to its importance.
Unfortunately the other opportunities in the field of legal writing
are often neglected. A course is offered to aid the student for
which he may receive academic credit. In conjunction with this
course there are many contests in which cash awards are given for
the best papers on particular subjects. The announcements of these
contests are periodically posted upon the bulletin board. Few
respond and often the prizes go begging. There is a constant need
for interested students on the staff of this pub!ication. Currently
a concentrated effort is being made to permit writers for this pub­lication
to acquire more exper~~n ce in writing upon items of a legal
nature in preference to the usual news note item.
The briefing service offers those students with the highest
academic standing a challenge in researching problems which con­front
practicing members of the bar. They then write the one re­questing
the service advising as to what they think the law is upon
that particular subject.
This is not an attempt to list the many varied activities in which
the law student may participate but is rather to emphasize their
value while maintaining the "proper" perspective toward them. In
every case they are ancillary to the study of law as one attempts
to equip himself for the pursuit of that profession which he has
selected.
Short Course on Uniform Commercial Code
(C ontinued from Page 1 )
two major problems and tned to an­swer
them. .first, they considered the
IClea ot conterring upon a pan1cwar
creditor or secured party " pnority
positwn m certain property against
U1e risk ot insolvency ur bankruptcy
ot the debtor, and the second was
some means of notilying competmg
creditors ot this securuy mterest. The
tirst speaker will be rlomer Kripke,
Assistant General Counsel, Commer­cial
Investment Trust, New York, who
will deal with the first of these prob­lems.
James B. Young, Attorney,
Louisville ; George J. k aufman, At­torney,
ewport; lnomas 1'. Lew1s,
Assistant l'rotessor ot Law, Uni versity
of Kentucky, will join the speaker to
torm the panel durmg the morning.
The atternoon session will open
wit11 Professor F . W. Whiteside ot
the University of Kentucky presiding.
T he principle address will be given
by Oscar Spivak, Wexler, Mulder &
Weisman, and lecture on secured
transactions at T e m p 1 e University,
l'hiladelphia, who w1il discuss per­lecting
and enforcing the security in­terest.
In addition to the speaker the
panel will be composed ot John L.
Davis, Stoll, Keenon and Park, Lex­mgton;
Hobert K. Cullen, Commis­sioner,
Kentucky Court of Appeals,
Frankfort; Professor Whiteside; Ger­ald
Kirven, Middleton, Seelbach, Wol­ford,
Willis & Cochran, Louisville.
Fowler To Preside
The Thursday morning session will
find Ben F . F owler, President, Ken­tucky
State Bar Association, Frank­fort,
presiding. The speaker on Con­flict
of Laws, as provided for within
the Code, will be Robert K. Cullen,
Commissioner, Court of A p p ea Is,
Frankfort. Although a few specific
sections of the UCC deal with the
problem, the early drafts of the Code
made an extensive attack upon the
problem, but were met by such over­whelming
opposition that most of
those sections were abandoned so that
it would remain for judicial discretion
to determine under what conditions
the law according to the Code would
apply.
The second speaker of the morning
will be Wilson Wyatt, Wyatt, Grafton
& Grafton, Louisville, who will deal
with Article VIII as it replaces the
Uniform Stock Transfer Act and the
egotiable Instruments Law coverage
of bonds, debentures, and like inves t­ment
types of obligations. A panel
discussion featuring, in addition to
th e speaker, Franklin P. Hays, Skaggs,
Hays, and Fahey, Louisville; Blakey
Helm, Attorney, Louisville; James '!.
Carey, Louisville, will follow after a
short break for coffee.
The last topic to be discussed will
be Letters of Credit. The speaker will
be Rufus Lisle, Harbison, Kessinger,
Lisle & Bush, Lexington. This subject
is an outgrowth of the Negotiable In­struments
Law and represents a codi­fication
into a special section of prob­lems
which few lawyers, as yet, have
encountered . At present th e greates t
use of letters of credH is found in
international trade but, it is felt that
th e future will see a greater use made
of them in domes tic transactions.
Banquet Scheduled
Contrary to the impression which
the above article may convey to you
the program will not be ··an work
and no play!" Nearly all the talks will
be followed by a coffee break. A
cocktail party and banquet will be
featured Wednesday night, June 24.
The entire program is the result of
a cooperative effort of The University
of Kentucky College of Law, The Uni­versity
of Louisville School of Law,
and the Kentucky State Bar Associa­tion
with the cooperation of the
American Law Institute and the
American Bar Association Joint Com­mittee
on Continuing Legal Educa­tion.
All inquiries should be addressed
to:
Uniform Commercial Code
Short Comse
College of Law, University of Ky.
Lexington, Kentucky
SBA Executive Committee
Elects Webb and Schneider
The executive committee of the Stu­dent
Bar Association recently elected
James Webb as president and Robert
Schneider as vice-president of the
SBA for the coming semester.
Dues for th e spring semester are
presently being collected by Chester
Vittitow, Don Logsdon, and John
Hardin.
A lounge has been established in
the basement of the Law School
Building. The furniture was donated
by the Reynolds Metal Company. The
coffee machine was procured through
th e efforts of the SBA building com­mittee.
The generosity of the Un­derwood
Typewriter Company has
made it possible for the new type­writers
to be placed in the periodical
room.
Qlqr 1£outantllr 1£amyrr
Published by the University of Louisville School of Law Student Bar As­sociation
four times a year for School of Law students, faculty and alumni.
Co-Editors-in-Chief .. ................................. .]ames N. W ebb and W. M. Johnson
~=~~r!~~;~;:::::::::·.:::::::::::::::::·_·_-_:::::·_·_:::::::·_::·_·_::·.:::·.::::::::·.::·.:·_·_·_:·.:·.:·_-_Fso': s~:1~~~
Circulation Manager ................. ........................ ......................... Clifford Duncan
Asst. Circulation Manager ... .................................................. ..... Patrick ]. Dixon
Repo·rters- Roy Turner, Wallace Taliaferro, Jerry Lynn, Jim Kincheloe.
Bob Hastings, Bill Buckaway, Alex Rose, Jim Thornton, Don Logsdon.
Faculty Adviser ............................. ........................................... Robert W. foster
THE LOUISVILLE LAWYER Three
P .. oblems ol G .. oupism
Political Action Group, A Problem Since Revoluti?n,
Now Presents Problems In Constitutional Interpretatwn
by Professor Otis P. Dobie
Open any American magazine today and yo.u are likely. to encounter an
article on the passing of individualism and the nse of grouplSln. Typ1cal are
recent issues of the Saturday Review. A London Times book reviewer, re­cently
reviewing Wm. H. Whyte "The Organization Man," 1 gently spoofed
us for our frenzied concern, suggestmg that Europeans long a&o. noted the
decrease of individualism in modern society.2 However, the Bntisher closes
on a note of wistful hope that we can find some good answers to the problem
wluch disturbs thoughtful people there too. A French legal scholar, after a
recent period of study here, was quoted as su~gesting that .American ~o.urts
are insufficently aware of the advent of group1sm as affecting both Citizen
Freedom and State Power.
Of course, the political action group
is nothing new. The Fathers reg­istered
concern over the growth of
political parties. Washington wrestl.ed
with foreign powers attemptmg to In­fi
ltrate our politics via native groups,
in the Citizen Genet episode. The
several Anti-Freemason campaigns of
the last century were directed against
fraternal orders indulging in politics,
often with suspected foreign ties.
Later, attention shifted to segmental
economic groups exercising don-llnant
political power to the extent of
dwarfing the normal organs of govern­ment.
Circa 1900, the Muckraker
writers pictured Wall Street banks
as running the country via a vast net­work
of seemingly unrelated and dis­guised
cultural, educational, or press
groups.
Intensity Is New
What is new is the intensity of the
problem. The mass democracy - wel­fare
state makes politics all pervading,
prompting wide-spread organization
for offensive or defensive political
warfare. Some of the groups admit
their political nature and aims, with
relative frankness, while others agree
with John Randolph that the most
successful politicians row to their ob­jectives
by circuitous routes and with
muffied oars. New, too, is the entry
of federal constitutional law into the
!'roblem, hitherto left to state or non­legal
controls. As of now, the Su­preme
Court is cautiously feeling its
way into the matter, its task not aided
by the general uncertainty of opinion
as to where we are and where we are
headed. Apparently, three m a i n
bodies of opinion are discernible. 3
One body of opinion roses the in­dividual
as the core of al and laments
his possible engulfment in the group.
The dangers of groups are recounted :
their power to germinate mob psychol­ogy;
th eir capacity to stifle or nar­rowly
direct individual thinking; the
r~angers of bare majority rule; the
difficulty of maintaining democratic
processes in groups; the tendency for
the officer cadres to develop interests
distinct from those of the member;
and to us the group as the vehicle of
personal ambition.
Pluralist Society
A second body of opinion sees
groupism as, at the very least, in­evitable,
and perhaps not too bad,
resulting in the Plurali st society whose
rules are made by benevolent bar­gaining
between the groups, the. state
acting merely as a sort of chairman
of the meeting. Some see the group
tyranny potential as frustrated by the
very number of groups and the size
of each, the latter making for de­centralization
of control and giving
the individual leeway to be an in­corrigible
rebel and get by with it. 4
A third body of opinion, starting
from the pre!1Use of the second body,
see us headed toward a far different
result, namely, that, after cat and dog
fights between the groups, some will
merge into a dominant junta which
will set a strong state to enforce its
mandates.
Body 'Objectives
The first body wishes legislation to
broadly curb group political activity.
The second and third bodies wish
legislation, not to generically curb
group political activity, but merely to
curb excesses, to protect the un­organized,
to insure democratic pro­cesses
within the groups.
The Supreme Court has been feel­ing
its way into the problem in sev­eral
recent cases. In the IUA W case,5
the big auto workers' union, allegedly
acting independently of candidates or
party organizations, promoted broad­casting
programs that discussed elec­tion
issues and favored congenial can­didates.
It was convicted under 18
USC 610 which forbids political con­tributions
or expenditures by banks,
corporations, or labor organizations.
The union contended that the Act,
properly construed, did not apply to
such independent action, or, if ap­plied,
violated its constitutional rignt
to Folitical activity. The majority, in
holding against the union, limited it­self
to the statutory construction
i s s u e, reserving the constitutional
issue for further study, apparently.
Justice Frankfurter relates the Act to
the Anti-Trust Acts and other legis­lation
indicating the intent of Con­gress
to broadly restrict the political
activities of segmental groups which
have obtained a position of danger­ously
disproportionate political power
and to protect the individual citizen
against group engulfment. He notes:
"As the historic background of
this statute indicates, its aim W'l.S
not merely to prevent the sub­version
of the integrity of the elec­toral
process. Its underlying phil­osophy
was to sustain the active,
alert responsibility of the individual
citizen in a democracy for the wise
conduct of government." ( 569)
The Court suggests a distinction be­tween
political activity in the nature
of broad discussion of issues and in
Reach Sup .. eme Cou .. l
UL AV Photo
Professor Dobie
Professor Otis Dobie received his
ttndergmduate degree from Randolph­Macon
College in 1928 and in 1932
received his Ll.B. from the University
of Virginia School of Law. In 1935
Professor Dobie received his Ll.M.
from Harvard University.
Professor Dobie began teaching in
1937 at Mercer University and re­mained
there until he came to the
University of Louisville in 1939. Pro­fessor
Dobie has remained at this Law
School continuously since 1939 with
the exception of 4 years that he spent
in the United States Army. In 1950
Professor Dobie became the Bernard
Flexner Professor of Law and he still
holds that position to date.
This is one of the many contribu­tions
that Professor Dobie has made
to the review section of the Louisville
Lawyer.
the nature of more overt indorsement
of parties or candidates, with less
permissible curb of the former.
The Dissent
The dissenters, speaking through
Justice Douglas, use a different _ap­proach
.l'hey think that the inclividtul
today can act politically only via
groups, with the latter enjoying a
freedom of political activity analagous
to that historically accorded the in­dividual
and free of such generic curb
as that of this statute. Apparently,
they are willing to allow more specific
curbs, as against direct lobbying,6 or
legislation to insure de:nocratic pro­cesses
within the groups.' They take
a dim view of the suggested distinc­tion
between discussion of issues and
more overt political activity.
If, as seems not unlikely, the Court
holds this line, when squarely facing
the constitutio'fial issue, the case would
apparently stand for the proposition
th at the legislature may broadly curb
the political activities of group types
which legislative findings show in a
position to exercise a dangerously dis­proportionate
political p ow e r. Of
course this involves difficult questions
of trustworthy tests of such position.
Past legislation of the kind has been
geared to concentration of wealth.
Probably, "wealth" has always been
something of a shorthand for "power."
Doubtless, the Court would a]Jply its
usual rule of giving strong but not
conclusive respect to the legislative
findings and standards. This would
~eem to be the sort of fact better de­termined
by the active politicians in
the legislature than the judges. Ulti­mately,
the Court doubtless will be
guided by its appraisal of th e cur­rently
prevailing ideas relative to the
group type in question, its make-up
and leaders, objectives, organization~
and tactics, with a strong dash of
judi cial predilection inevitable.
Approaches To The Problem
One possible approach might be to
b·y to hmit a group type to its sphere
ot interests, as was attempted, none
too successfully, by the Common Law
ot corporations. Should, for example,
a lawyer, doctor, finance, labor group
be allowed to agitate a foreign affairs
matter? Such an approach would be
sroutly resisted by groups either by a
show of interest or by claiming to be
the complete ego ot their membe ..
and therefore asserting tl1e latter~
right to speak on anytlung however
unknown or remote to them.
Another leading recent case dealt
with the power ot the state to inquire
into the make-up of groups suspected
of being disguised. NAACP v. Ala­bama
s involved the attempt of Ala­bama,
via its general corporation code,
to compel the big negro rights or­ganization
to divulge its membership
and contributor lists. A unanimous
Court, squarely on the constitutional
right of Assembly, ruled in favor of
the Association. The majority opinion,
as did the majority opinion in 1UAW,
starts from the vantage of the in­dividual,
but then shifts to the thesis
of the dissenters in IUA W that today
t11e individual can best exercise the
political voice through tl1e group.
rlowever, the opinion is carefully
hedged. The Court notes that the
Association had already voluntarily
given the type of information usually
demanded on the n :~rrow issue here
u: eJ by Alabama, namely, qualifica­t!
on to do local operations under the
Corporation Act. Left open was the
possibility that the state might enact
such a visitorial inquiry if it made
reasonable findings of need therefor,
the Court referring to ACA v. Douds.9
It was largely on this basis that the
Court distinguished its prior case of
l:'eople rei. Bryant v. Zimmerman10
which had held inquiry of this kind
could be made of the Ku Klux Klan
based on legislative findings as to the
objectives and ·practices of the Klan.
The Court noted that the Association
here had given information on its
officers. Was this merely in passim,
or was the Court suggesting that in­quiry
through the officers is sufficient?
Probably, the form er. Very recently,
the Arkansas Supreme Court upheld
a similar inquiry into the NAACP on
the basis of a Law of 1875 permitting
such inquiry into organizations claim­ing
tax exemption as non-profit, the
Court distinguishing NAACP v. Ala­bama
by showing the instant case to
be based on an ancient Act in the
tax field geared to findings .n The
Supreme Court will doubtless fml to
see the distinction.I2
(Cont. on Page 6, Col. 2)
Four THE LOUISVILLE LAWYER
Eleclioa Vader Will rorleils Properly Rights?
Kentucky & North Carolina Appellate Decisions Present
Contrasting Judicial Interpretations Of The Problem
by Robert E. Fleming
The purpose of this article is not to discuss any recent developments in
Kentucky law but rather to discuss the application of the doctrine of election
under a will and the theory upon which the doctrine is based.
One of the first cases in Kentucky in which this doctrine was set forth
and applied was the case of Gore v. Stevens, 31 Ky. 201, I Dane 201, 25 Am.
Dec. 141 ( 1833). In this case A received certain bequests and devises under
his father's will. The father also devised certain lands to others. A after
having taken under the will, claimed title to these lands under various deeds
executed prior to his father's death. The court in denying A's claim to the
lands set forth the following rule :
If the testator gives what is not
his property, but which he supposes
to be his and gives to the person
whose property it is an interest by
his will, th at person will not be per­mitted
to defeat the disposi tion
where it is in his power, and yet
take under the will, and the same
rule applies, though the tes tator
knew he had no rig11t to dispose of
the lands and yet knowing it takes
it upon himselt to dispose of them.
Applying th e above mentioned prin­ciple,
the court ruled that A, having
taken under the will, could not assen
a claim which was adverse to the pro­visions
of the will, or to put it otner­wise,
A had elected to take under the
will and surrender his property interest
which the will devised to others.
Subsequent Decisions
Subsequent decisions reveal tha t, as
is the case in practically all situations
in which the interpretation of a will
is involved, the application of the doc­trine
of election is dependent upon the
intention of the testator. In deter­mining
whether or not the doctrine is
applicable th e court attempts to de­termine
whether or not the tes tator
intended that th e gift to the benefici­ary
should be conditioned upon his
giving up his legal title to his property
purported to be bequeathed or de­vised
by the testator. The case of
Lane v. Cess' Adm'r, 223 Ky. 448,
3 S.W. 2d 1076 ( 1928) involved the
following facts: 0 conveyed a farm
to H and W, H and W each taking
a one-half undivided interest. H pre­deceased
W leaving a will devising
the farm to W for life, with a re­mainder
in fee to H's family and W's
family equally. W died intes tate
without having renounced H's will.
The ques tion then arose as to whether
W's heirs took her one-half undivided
interes t in the farm or whether W by
failing to renounce the will and taking
benefits thereunder had made her
election thereby giving up her interest
under the deed and causing the re­mainder
in fee to include both her
interest under the deed and her hus­band's
interes t thereunder. In deter­mining
this ques tion the court looked
to the language of the will to see
whether the tes tator intended to de­vise
"all of the property." Logan, J.
in writing th e opinion stated that, "the
general rule is that a testator is pre­sumed
to devise only his own property
or property over which he has the
fOWer of di sposition." The opinion
concluded however that the language
9f the will revealed that the devise
UL AV Pnoto
Robert Fleming
The second of this series of law
articles by students of the University
of LouisJ;ille Law School who have
llttained honors among their class, is
contributed by Robert E. Fleming,
Chairman of tne Law School Briefing
Service. Robert is a graduate of Alle­gheny
College in Meadville, Pennsyl­vania,
where he maiored in Eco­nomics.
Since his enrollment at Law
School in September, 1956, Robert
has held office as Vice-Dean of the
Delta Theta Phi Law Fraternity, and
as Treasumr of the Student Bar Asso­cifltion.
Second in his class, he is the
holder of three book awards for the
highest grade in Constitutional Law
during two semesters and another in
Administrative Law. Robert lives at
1001 Chesley Drive, Louisville, and is
employed as legal assistant with the
firm of Deeb and Kunzman.
was intended to include "all the prop­erty"
and therefore W was forced to
elect. Since W did not renounce the
will it was held that her interest
passed under the will. It should be
noted that th e court in seeking to de­termine
whether or not the tes tator
intended to put the beneficiary to an
e l ec ~io n did not inquire into the pos­sibility
that the tes tator was under
the mistaken belief that he owned "all
the property" and if he had known
the true state of the title he would
not have devised the property at all.
The failure to make this inquiry is of
course in accord with the rule as
stated in Gore v. Stevens, supra, for
as stated in that case, "if the testator
gives what is not his property, but
which he supposes to be his and gives
to tl1e person whose property it is an
mteres t by his will, that person will
not be permitted to defeat the dis­position
where it is in his power, and
yet take under the will . .. . "
In the case of Y oTk, et al, v. Adams,
et al, 277 Ky. :577, 126 S. W. 2d 107'1,
the court made an interesting ois­tmction
between the facts presented
m that case and those involved in
Lane v. Cess' Adm'r, supra. The York
case involved the following facts: 0
conveyed Blackacre to H and W with
a provision in the deed that at the
death of either the survivor was to
take title to the whole tract of land.
H died leaving a will containing a
devise of a lite estate in Blackacre
to \V. The residuary clause of the will
contained a gift ot a remainder in all
of tl1e testator's undevised property.
The court reasoned however that tne
residuary clause did not apply to
Blackacre since it referred omy to the
tes tator's property, and Blackacre by
tne proviswn of the deed passed to
W upon H's death. After reaching
this conclusion the court was then
faced with the question of whether
the rule of Lane v. Cess' applied in
tile absence of a gift over tollowing
the life estate. In nolding that it dio
not th e court relied on tne presump­tiOn
that the testator does not intend
to devise property which he does not
own. The court reasoned that W had
the fee by virtue of the deed. H, by
his will, merely devised to her a lesser
interest than the one she already
owned. There was language in the
opinion to tl1 e effect that after the
termination of the life es tate the fee
would go to W's estate since she was
the owner of the fee prior to the
creation of the life es tate, and there­fore
W was not required to elect. It
is respectfully submitted however that
in Lane v. Cess' Aclm'r W also re­ceived
a life estate which was a lesser
interest than the one she already en­joyed.
If in the Y ark case W had had
no interest in the property prior to
the date of the will's eftectiveness,
upon termination of her life estate
the property would revert to H's heirs
in the absence of a gift over.
The Ca ses Distingu ished
The real di stinction between the
two cases appears to be that in one
the testator expressly provided for the
complete disposition of the benefici­ary's
interest while in the other he did
not. The rule which results from such
a distinction being : that where the
tes tator does not expressly provide for
the complete disposition of the bene­fi
ciary's interest the presumption that
the testator does not intend to devise
lands which he does not own is not
overcome and the benefi ciary does
not have to elect. Bas ically the rule
res ults from the conclusion that since
the intention of the testator to require
th e election is the controlling factor
in determining the question of th e ap­plication
of the doctrine of election,
the benenciary's interest must be de­feated
by an express provision of the
testator's will and not merely by the
operation of law.
Ar bitrary Positions
The court in York v. Adams, supra
(as did tile court in Lane v. Cess'
Aclm'r and Gore v. Stevens, supra) ,
did not consider the possibility that
the testator was under the mistaken
belief that he owned the property.
In some jurisdictions however such an
inquiry is made. The orth Carolina
court in Benton v. Alexander, 224
N.C. 80, 32 S.E. 2d 584 ( 1945),
made such an inquiry and held that
where tl1e testator was mistaken as
to the true ownership of the property
and his right to dispose of tne prop­erty,
the mtention to put tl1e aonee
to an election could not be imputed
to the tes tator and the doctrine of
election therefore does not apply.
In defense of the position that such
im1uiry should not be made it should
be noted that a determination that
the testator was mistaken does not
really answer the fundamental ques­tion
of whether the testator would
have required the election if he did
know ot his lack of ownership and
power of disposition. The North Caro­lina
court did not consider this ques­tion.
lt merely held that where such
mistaken belief existed the intent to
require th e election will not be im­puted.
The distinction between the
rwo positions (Kentucky and North
Carolma) is that Kentucky will impute
the intent to require an election re­gardless
of mistake on the part of the
testator as to his power to dispose of
the property while North Carolina will
not impute the intent when such a
mistake is es tablished. Both of these
positions appear to be rather arbi­trary
and are probably explained by
the following language from Whistler
v. Webster, !l Yes Jr. 367, 30 Eng Re­print
676, 10 Eng Cas 316 ( 1794 ),
which held in accord witl1 Kentucky:
"Nothing can be more dangerous
than to speculate upon what the
testator would have done if he had
known one thing or another. It is
enough for me to say he had such
intention and I will not speculate
upon what he could have intended
in different cases put."
Author's Solu tion
Witl1 due respect to the position of
the courts in refusing to speculate as
to what the tes tator would have done
had he known that the property cov­ered
by a devise in fact belonged to
one of his beneficiari es, it is respect­fully
submitted that an inquiry into
this question should at least be made
in each case and if the question can­not
be answered then and only then
should a court arbitrarily apply or
refuse to apply the doctrine of elec­tion.
While the reader may not agree
with the opinions of the writer ex­pressed
in this article it is believed
that everyone will agree that the doc­trine
of election under a will is a
doctrine which should always be kept
in mind when advising a beneficiary
of a will or a purchaser of real prop­erty.
THE LOUISVILLE LAWYER
Riding The Circuit-New Student Series
On Unreported Circuit Court Decisions
by Romano Mazzoli
Since law students customarily read only the reported cases from the
highest court in Kentucky, they tend to lose s1ght of the fact that much good
law is contained in the opinions of judges handed down in the cases tried in
Jefferson County Circuit Court. These cases are, of course, never reported
and never do find their way into the case books from which the students draw
their knowledge of the law. But some of the cases involve complicated fact
situations which require the judges deciding them to do much legal research
and no little soul-searching before reaching a just decision. Following is a
sampling of some of the more interesting cases decided in the Jefferson Circuit
Court, 1...,hancery Branch, Second Division, which cases, because they were not
appealed, have not been reported and yet which do indicate a thoughtful and
proper application of the law.
was es topped since the one asserting
Wugg Cigarette Service Co. Inc. v. the estoppel must suffer some detri ­G;
eorge A. Hayes, et at. ment by reason of the fact consti­Plaintiff
and the defendant entered
mto a contract which provided for a
bonus payment of $150.00 to the de­tend.
am m consideration of which,
plus payment of commissions, tl1e de­rendant
agreed to sell cigarettes ex­clusively
through the plamtiff's cig­arette
machines. The contract was
silent as to the amount of commission
to be paid per pack of filter-type
c1garettes sola via the vending ma­cnmes,
but written on the contract in
red ink, the contract othetwise being
typewritten, was the notation, "Com.
!tate is at 3c per pack, 1c on Filters."
The plaintiff 1nsisted that this was on
the contract when the defendant
signed and it meant that defendant
was to receive 1c per pack of filter
cigarettes sold. The detendant coun­tered
that the agreement was for him
to receive a commission of 3c per pack
of filters sold. Plaintiff also alleged
that the defendant, even if the inked­in
notation was added to the contract
after it was signed by the parties, was
estopped from relying on this nota­tion
because the defendant had cashed
two commission checks both based on
the 1c commission rate. The defend­ant
contended, and this was denied
by the plaintiff, that he had com­plained
about the differential between
the commission amount received and
the amount he felt himself by the con­tract
entitled to receive, and tbat he
had also offered to return the $150.00
bonus if the plaintiff would remove
their machine. The plaintiff further
argued that the amount of differential
between the disputed commission rates
amounted to so small an amount,
$3.00, that the court should not order
recision of the contract, but only re­formation
of it to reflect the correct
amount of commission to be paid on
Biter-type cigarettes.
HELD: The Court first resolved
the conflict as to when the inked-in
notation was added to the contract in
favor of the defendant. The reason­ing
was that the contract is construed
more strongly against the person who
prepares it than against the one who
only signs it, and here the plaintiff
had not given the defendant a copy of
the contract. Further, the plaintiff
had provided in the contract for a
change in commission rate if the tax
on cigarettes were to be increased or
if the cost per pack to plaintiff
ch a nge~, yet it still did not exactly
state th·e commission to be paid. The
Court qid not feel that the defendant
tuting tne estoppel. But here the ac­ceptance
by a etendant of the com­mission
checks did not cause a detri­ment
to plaintiff; the plaintiffs were
not induced to place their machines
on the defendant's premises nor to
keep them there. In t act, the defend­ant
had urged that the machines be
removed, and the plaintiff had desired
them to remain. '1 he Court held tl1at
the notation added to the contract was
a material alteration and it authorized
the recision demanded by defendant.
In answer to the plaintift s contention
that the defendant was not entitled to
recision because he had not tendered
back the $150.00, the court said that
the tender need not be of money in
specie, but need only be the good
t aith offer to place the other party in
a status quo. Defendant need not re­turn
the money before the machines
were removed from his premises, and
so long as he evidenced a willingness
to return the $150.00 whenever the
plaintiff would permit the contract to
be rescinded, the court felt th at de­fendant
had complied with the re­quirements
of tender in a recision
case. The court awarded judgment
providing for the recision upon the
payment of $150.00 by defendant to
the plaintiff either by the plainti ff's
cashmg th e check or by having the
defendant hand the plaintiff $150.00
in specie contemporaneously with thP
plaintiff's removing the machine.
W . H. White v. Mordeciu F. Ham
The case was submitted to the court
on plaintiff's motion to assign a day
before a jury for a trial of specific
issues. The court mainly concerned
itself with the plaintiff's reques t for a
jury trial on the issue of whether the
plaintiff and the defendant entered
into a contract of employment, by
which the defendant agreed to pay
plaintiff a specified weekly consider­ation.
Concerning this fact, the court
decided that a legal issue was raised.
The question, however, was whether
or not as to a legal question, part of a
case otherwise triable by an equity
court, it is error to deny a trial by
jury of this question. The defendant
argued to the effect that when equity
assumes to try a case, it will seize all
elements and branches of the case and
determine all of them.
The case of Truitt v. Tmitt's Admr.,
290 Ky. 632, was mentioned in which,
during an equitable action, a ques­tion
arose about a prenuptial contract
Romano Mazzoli
The author of this issue's RIDING
THE CIRCUIT is Romano L. Maz­zoli.
Ron, as he is called around
school, graduated Magna Cum Laude
from the University of Notre Dame
and now leads the Law School junior
class academically. Besides his schol­astic
achievements, Ron has found
time to participate in numerous out~
side activities. He is a member of the
Uni1Jersity Student Senate, and Bailiff
of the Delta Theta Phi Law Fratern­ity.
In his Freshman year he was
Secretary of the Moot Court Club and
in the first semeste1· of his junior year
was elected to the Briefing Service and
to membership in Omicron Delta Kap­pa
Honorary Fraternity, and received
the Book Award in Sales and Code
Pleading. W hile this article is concern­ed
only with cases in the Second Chan­cery
Vi vision of the ] efferson Circuit
Court the series will be extended in
the future to cover cases in all Divi­sions
of the Circuit Court.
the existence of which the plaintiff
denied. The issue was tried by a jury
tut incompetent evidence was aa­mitted.
It was argued that since th is
was an issue that was part of a case
otherwise triable by tl1e equity court,
the verdict of the jW'y was advisory
only and admissions of error to it
would not necessarily be error. But
the Court of Appeals held that, since
this was a legal issue as distinguished
from an equitable issue, the verdict
of the jury was a binding verdict and
that the issue of non est factum was
pW'ely a q ues tion of fact to be tried
by the jury as a legal issue.
HELD: The court here held that
under the Kentucky Hules of Civil
Procedure, Hule 38.02, it is reqi!ired
that any issue in an action that for­merly
was considered a legal issue,
or one "triable of right by jW'y," must
still be tried by a jury if a demand
for such trial is made. So the plain­tiff's
motion was therefore treated as
a demand for a trial by jury and was
sustained. The cour t transferred, on
its own motion, to Common Pleas
Branch, Jefferson Circuit Court, the
strictly legal issue of contract, but it
retained the issues of accounting and
avoidance for . trial after the jury in
Common Pleas returned the special
verdict on the legal issues.
Five
Oscar A. Block v. Raymoncl W . Block,
et al.
1 .. e conu oversy cenrerea arounu
' ' .e rransrer oy v scar A. rllock or
,ecur1nes w tue a erenaanrs, ms son
ana aaughter. At U1e tune ot rne
uansrer, Mr. jjJOck was e1ghty ana 1t
lS conrenoea tnat ne lackeu tne mental
capacny to know tne nature ot the
u"nsacaon ana U1at tne transt ers were
uo,amed by undue mliuence of the.
transterees. Subsequent to tne trans­ter,
mock was adjuaged mcompetent
w manage Ius own altatrs; but tne
nnamg or !act by the commissioner
was auopted to tne ettect that, at the
ome or r.ne transter, .mock was ot the
mental capacity to unaerstand the
nature ot tne transactions. The court
telt tnat the son, occupying a conli­uential
relationsnip wnn tne father,
must nave exerc1sea some irttluence
over tne rather m regara to the trans­rers,
om tne court a1so tound that the
mtluence was not undue and the son
llaa not exercised any dominion over
tne t ree will ot the transferor, his
ramer. ·rne courr telt that the avowed
purpose ot the transters was to dis­pose
of by tl!r the major part of his
es tate by transterring 1t to tl1e chil­aren
ot nis Just marnage so as to pre­vent
Jus wite trom getting a widow's
snare m the event he died before she
aid. The question with which the
court was confronted was whether
the wife is powerless to protect her
inchoate rig11t of dower. The wife
may set aside such transfers made by
will after the husband's death, since
·' . . . equity will require a proper ac­counting
and res toration to the widow
of her rights of which she has been
t raudulently d epr ive d." Cochran's
Adm'x. v. Cochran, ll5 SW 2d 273.
In the instant case, though, the hus­band
was still living, having only been
adjudicated incompetent. Authorities
cited showed that the wife could pro­tect
her inchoate right of dower when
the h usband's wrougful actions threat­ened
to interfere with her rights to­ward
real property, but no cases dealt
wit h the Situation m the instant case
where the wife wants to protect her
inchoate right of dower as regards
personal property.
HELD: Here the court felt iliat
where, as in this case, there can be
no question but that a transfer is made
for the purpose of defeating a wife's
expectant statutory rights a court of
equity will protect her rather tl1an
requiring her to wait until the death
of her husband before affording her
any relief. The court felt that the
term "dower," used in the cases hold­ing
the wife could protect her
inchoate right of dower, was broad
enough to include both a statutory
right in personalty as well as in the
statutory right in real proper ty.
The above cases are only a sampling
of the many cases which come before
the Circuit Judges containing ques­tions
of law which have not been en­tirely
settled by previous decisions, or
which contain intrica te fac tual situ­ations
to which more than one es tab­lished
principle of law may apply.
Many of these cases are not appealed
or cannot be appealed, and are thus
not reported; but their not being re­fOrted
does not dim the fact that they
contain much good law and much
excellent and original judicial thought.
Six THE LOUISVILLE LAWYER
r.aw Day Features Brandeis llooDJ Dedication
Justice Louis Brandeis Is First Subject In New Series
On Past Kentucky Members Of U. S. Supreme Court
by Charles A. Rose
Louis Dembitz Brandeis was born November 13, 1856, in the Brandeis
home on Center Street between Chestnut and Walnut in Louisville. His
elementary education was received in Louisville Elementary Schools where
his scholarship record was outstanding. Later education was received at the
Annen Realschule in Dresden, Germany. Brandeis entered the Harvard Law
School in 1875 and became one of the first students to study law under the
case book method of study. When time for his graduation came in 1877, it
was necessary for the Harvard officials to waive the age requirements for
graduation since Brandeis had not yet reached 21 years of age. Despite his
youth, at the time of his graduation, he had set an unprecedented scholarship
record.
Louis Brandeis' first experience in
the practice of law took him to St.
Louis, Missouri, but a yearning for
the cultural aspects of New England
life, which he learned to appreciate
while at Harvard, took him back to
Boston in 1879 where he went into
practice with a former classmate,
Samuel D. Warren, Jr. His practice
prospered and the year 1890 found
him established as an eminent cor­poration
lawyer. In 1889 he had
argued his first Supreme Court case,
Wisconsin R. R. v. Price County, re­ported
in 133 U.S. 496.
Appointed By Wilson
·woodrow Wilson announced Louis
Brandeis' appointment to succeed As­sociate
Justice Joseph R. Lamar of
the Supreme Court on January 28,
1916. Conflict and opposition broke
out immediately. Brandeis was cen­sured
as a radical and not a man for
a seat on the nation's highest bench.
It · was not until June 5, 1916, that
Justice Brandeis took his seat. His
liberal philosophy continued into his
judicial life as it had shaped his prac­tice.
When Roosevelt and the New
Deal came to the national scene in
the 1930's, the Court, with Justice
Brandeis, upheld 10 of the 16 lew
Deal acts tes ted before it.
Resigned In 1939
The end of the Brandeis judicial
tenure came with his quick resigna­tion
on February 13, 1939. His last
years were spent in scholarly leisure
and the promotion of Zionism. On
October 5, 1941, Justice Brandeis died
in Washington, D. C. On the first
anniversary of his death, his ashes
were interred on the porch of the
University of Louisville School of Law
on Belknap campus. Next to his re­mains
were placed those of his wife,
Alice Goldmark Brandeis, whom he
had married in 1891.
Fall Graduates
This J anua r y, thirteen students
graduated from the University of
Louisville School of Law. Thomas L.
Brooks led this class, graduating cum
laude. Following him was Edwin H.
Perry, while Robert L. Schnatter was
third. The other members of the grad­uating
class are : E. Gordon Bertram,
Edward T. Brady, Jr. , Boyce G. Clay­ton,
Donald F . Connor, Lucille M.
Coovel, Wilbur C. Fischer, Jr. , David
Kaplan, Michael W. McGrath, Adrian
F. O'Bryan, and Jefferson H. Vaughn.
Lawyers and law students alike are
acquainted with the eminence of the
legal thinking and philosophy of Jus­tice
Brandeis. His success had another
facet with which most of us are not
so familiar. Brandeis' estate before
taxes totaled $3, 178,495.75, the result
of a lucrative practice of law.
When American Jewry desired to
match the tradition of the great Amer­ican
secular universities stemming
from religious denominational generos­ity,
its university was established in
1948 at Waltham, Massachusetts, and
was given the name Brandeis Uni­versity.
It is a fitting name for the
school and a just tribute to a great
jurist and a beloved Kentuckian.
(Continued from Page 3)
The problem of these cases obvi­ously
is one of the most challenging
of our time and merits the thought of
all citizens.
1- This b o o k, and David Reisman
"The Lonely Crowd" are perhaps
the most widely circulated of the
flood of recent literature on the
problem.
2- London Times Literary Supplement
of Oct. 3, 1958, p. 563.
3-See the discussion and authorities
cited in Miller "The Garrison State",
10 Stanford Law Rev. 620 (1958).
Also, Friedman "Government by
Private Group," 57 Columbia Law
Rev. 155 (1958). In a provocative
article in 44 Va. Law Rev. 1233
(1958) , Professor Dietze, of the Johns
Hopkins Political Science faculty ,
suggests that the Supreme Court,
since the early 1930's, has been re­miss
in protecting individual rights
in fields other than the so-called
civil rights.
4- The notion of the Pluralist Society
was much discussed some years ago
by Durkheim and Duigit, and in
the 1920's by the late Harold Laski
and commentators on Scandanavian
patterns.
5- International Union of Auto Work­ers
v. US, 352 US 567 (1957).
6-In US v. Harris, 347 US 612 (1947),
the Court upheld the Anti-Lobby­ing
Act (2 USC 261) as applied to
oersons or groups engaged in direct
lobbying, but 1 eft considerable
question as to what constitutes di­rect
lobbying and how far the Act
applied to those whose lobbying
was merely one aspect of their
program.
7-In Steele v. Louisville & Nashville,
323 US 192 (1944) , the Court con­strued
a labor act as requiring
democratic procedures within the
group, but this decision has not
been much applied or developed
though it was referred to recently:
m Conley v. Gibson 355 US 41
(1957) . .
8- National Association for the Ad­vancement
of Colored People v.
Alabama, 357 US 275 (1958).
9- American Communications Associa­tion
v. Douds, 339 US 382 (1949).
10-278 us 63 (1928).
11- Bates v. Little Rock, 319 SW2 37
(1958) .
12- See the broad statement of the
Court's relative attempts to evade
its "School" decision in Aaaron v.
Cooper, 358 US 1 (1958).
Louis Dembitz Brandeis Semin<.lr Room To Honor Man Most
Responsible For Development of Law School At U of L
by Donald G. Logsdon
On Law Day, April 18, the School of Law will dedicate the new Louis
Dembitz Brandeis Seminar Room in honor of Justice Brandeis, who, more
than any other person, was responsible for developing a School of Law at the
University of Louisville.
Justice Brandeis first became interested in the development of the Law
School in 1924. He felt it was a ·desirable asset to tl1e community to have
law students trained in the state where they would practice. He was of the
opinion that while the larger law schools do a great public service for the
whole country they could not do for any particular state the necessary service
which could be given by an efficient, indigenous law school.
There was little interest in or for a
School of Law in either the Board of
Trustees or the community but Jus­tice
Brandeis, in writing to his brother,
said he was not the least discouraged
by this attitude. He even welcomed
some opposition as an incentive to
his and others' thinking and as a
means of stirring up interes t, stating
that no obstacle could not be over­come
with the requisite thinking, tact,
and persistence.
Began Donations In 1924
Justice Brandeis, in order to stir up
thinking and create an interest in the
school, started making donations to
the Law Library. In 1924 he arranged
for the School to receive the briefs of
all the Supreme Court cases, a valu­uable
service that has been kept up
to date. Knowing the importance of
Federal law he made many other
donations of books and papers to the
law library in honor of Kentuckians
who had served the federal govern­ment
in various capacities. Justice
Brandeis was convinced that the Uni­versity
and the community could be
worthily developed through their own
efforts and so he provided these tools
( the books and briefs ) so that they
may have at hand the means of help­ing
themselves.
Support Never Faltered
Mr. Neville Miller, the first full­time
Dean of the School of Law, in
1938 wrote, "It is hard for one who
has not lived through the struggle of
the Law School to appreciate Justice
Brandeis' influence and assistance . . ..
We passed through many dark days,
and perhaps the Law School would
have ceased to exist if it had not been
that we were sure we were on the
right road due to the confidence which
we had in Justice Brandeis' jYdgment.
Although the fact that the Law School
has a bright future today is due to
the work of many, I think it can be
truthfully said that a large part of the
credit should go to Justice Brandeis.
Had any of the others faltered, there
were many who were willing and who
could have carried on. However, Jus­tice
Brandeis' contribution was of a
character which he alone could give,
and if he had failed us, there was no
one who could have taken his place."
And so on April 18, it is with a
token of great appreciation that the
University and the School of Law
dedicate in his memory the Brandeis
Seminar Room. The room will con­tain
a conference table with padded
chairs, red drapes, and light oak cabi­nets.
These cabinets will store the
personal papers of Justice Brandeis.
There are 10,000 items in this collec­tion
dating from 1879 to 1940. These
papers are of great historic and re­search
value and are available to those
who wish to use them. The confer­ence
table will seat about twenty
people and the Brandeis Room will
be used for conferences, meetings, and
if necessary as a small classroom.
Miller To Speak
Among those who will speak at tl1e
dedication will be Honorable Neville
Miller, former Dean; Honorable Alice
Brandeis Gilbert, granddaughter of
Justice Brandeis and a member of the
New York Law Firm of Cahill, Gor­don,
Reindel and Ohl; Honorable
Walter Brandeis Raushenbush, grand­son
of Justice Brandeis and Assistant
Professor of Law, University of Wis­consin;
Honorable Charles B. Tachau
'48, grand nerhew of Justice Brandeis
and Judge o Juvenile Court, Louis­ville,
Kentucky.
After acceptance of the Brandeis
Seminar Room for the University by
President Philip G. Davidson, open
house will be held in the Brandeis
Room.
Book Awards
Full Time Division
Administrative Law,
Robert E . Fleming
Constitutional Law,
Fred W. Drogula
Contracts L ................ Robert Hastings
Code Pleading ............ Romano Mazzoli
Evidence ....... ....... Owsley B. Frazier &
Frederick G. Williams
Labor Law ............ Donald G. Logsdon
Sales ... ·-· -·· ·-··-·········---·-Romano Mazzoli
Taxation L ...... .......... Charles H. Erwin
Wills ........................ Thomas L. Brooks
Part Time Division
Agency ... ................ ..... Dorothy G. Cox
N.I.L. ········-·····-····-········Wesley Wilson
Constitutional Law ........ James Rankin
Contracts L .................. J. Dave Martin
Evidence ...... .... Richard W. Garman &
Raymond J. Long
lnsurance ................... , .. Dorothy G. Cox
Labor Law ...... ...... Donald F. Connor &
Edward L. Mattingly
Sales ................. ........ ... Jack B. Risenger
Torts I ........ .................. .. Henry Maeser
THE LOUISVILLE LAWYER Seven
11SERVE CALL OF DEMOCRACY/' ADVISES GOVERNOR G. MENNEN WILLIAMS
Pursuit' of Country Club Status And Economic Security
Should Be Forgotten To Make Unglamorous Decisions
Kentucky is an exciting State. Not only is it the home of fast horses and
lovely ladies, but it is also the native State of men who have served their
country greatly and well. To have a few moments time with those who enjoy,
and who will carry out the Commonwealth's great traditions, is a pleasure and
a challenge indeed.
You law students will think me a
very old man when I tell you that I
received my law degree 23 years ago
dus year. Ho .v long 23 years is oe­penos
on which end of time's tele­,
cope you are looking through. From
your end it probably seems so fat·
.thead that you can't quite make it
out. F rom this end, let me assure you,
1t doesn 't seem very long at all.
However, I think it is long enough
to serve as an excuse for my remarks
to you today. I am going to try to
g1ve you some advice.
Th1s is a pretty daring thing to do
- to give advice to a group ot young
men, particularly those about to be
lawyers. But I'll take the chance. I
hope you will listen with more than
casual attention because over the next
23 years, you will have a great many
opportunities to use your talents, not
only for individual self-fulfillment, but
w advance the common good, to in­crease
the vi tality of democracy, and
to give leadership in whatever com­munity
of life you find yourself in­volved
in - be it a neighborhood, a
business, an institutional endeavor, or
a government.
Lawyers Have Ch oice
You have a choice which becomes
more narrow and. more clear with each
new thrust of the Soviet Union against
the free world.
You can wrap yourselves in com­fortable
cocoons of complacency, you
can spend yom days and nights in
pursuit of a country club status, you
can concentrate entirely on individual
economic security.
lf you take this choice, however,
you u.ay find that the cocoons, the
country clubs, and the economic se­curity,
may all disintegrate under the
hostility of a Communist-dominated
world.
Or you can choose to get into the
thick of life, out where the people
are, and fight the people's battles with
tlcem and for them. You can live
every rrecious minute of life to the
fu llest, stimulated by the most de­lnanding,
the most exciting range of
opportunities and challenges ever to
face a people, a nation, or a civiliza­tion.
Freedom Thrilling
You can make freedom and free
enterprise the thrilling and fulfilling
li fe it really and ideally is - for both
yomself and others. You can make
democracy so attractive to not only
your countrymen but to the world
that communism will seem a faded
and jaded propaganda to millions who
are now beguiled by its mirage.
There are great tasks all around us
crying for leadership.
We have immense problems created
by the revolutionary changes under-
Governor Williams
Febmary 2, G. LHennen ·williams,
governor of the state of Michigan,
acldmssed a convocation attendee! by
the student body of the Law School,
and members of otner departments ot
the University. So impressed were
both the students and tne faculty by
his remm·ks that it was decided to
publish the entire text of his speech.
way through automation, atomic en­ergy,
and scientific discoveries of
many kinds. We have tremendous
opportunities to make democracy more
ettective and more efficient at every
level of government and in every area
of society. There are magnificent op­portunities
in every aspect of foreign
policy to make genuine contributions
w world peace.
From slum clearance to th e con­quest
of space we need to become
passwnate doers, rather than passive
v.ewers. We need more people on·
the playing field, living and acting
our aemocracy, and less people in the
grandstands merely watc hing the
show.
Leaders Needed
\Ve need leaders- men and women
willing to make the hard, unglamorous
deciswns of leadership, willing to take
on the problems of our times, willing
to serve their country and their God
with dedication and zeal.
It is said of Abraham Lincoln,
whose birthplace yom State proudly
claims, th at he was a man who knew
two basic books: .The Bible and Black­stone's
commentari es on the law.
In that fact, I think, we find some
part of the explanation for the qual­ity
of Lincoln 's mind and for the
stamina of his spirit. The Bible is the
record of the moral law, the un­changing
principles of conduct by
which mankind has advanced in civil­ization
and culture. And Blackstone,
of course, symbolizes the long tradition
of justice under law in the western
world, the man-made applications of
the natural law. Taken togetl1er, as
representative of human and divine
law, they comprise a body of tradition
and experience to which we can, and
should, now look for guidance.
Today, you and I are confronted by
a ruthless movement that recognizes
neither the Bible nor Blackstone.
Communism believes it has - and is -
the answer to the world's destiny.
Man is reduced to a pawn of the
State held by a phantasmagoric prom­ISe
of a better material life.
But communism has been almost as
successful as it is false and outrageous.
As a consequence, we are faced not
only with the poison of a pernicious
p hilosophy, but also by t11e deter­mined
dynamism of a powerful im­perialism.
A Cr eature Of God
There is an answer to this. It lies
in the things represented by Lincoln's
two oasic books. It lies in the credo
that man is a creature of God, en­dowed
with rights which are his by
nature, and not his by edict from the
State, and that governments are in­stituted
to advance the life, liberty,
and happiness of the people.
It lies in justice under law. It li es
in the revoluntionary concept that
men should be free.
This was the answer to tyranny in
the days of our forefathers. It is the
answer to tyranny now. Our Declara­tion
and the Bible is the gauntlet we
should throw down to communist
dogma wherever we meet it in the
world.
But this answer of freedom, and
justi ce, and democracy, and love is
not self-executing. It isn't going to
work itself out by sitting aside and
letting someone else do it. It must
be done by you and me, by your
teachers and your neighbors, by your
associates, by everyone.
The great documents of American
freedom were to a considerable de­gree
developed. by lawyers. Thirty­three
of th e 56 signers of the Declara­tion
of lndefendence were lawyers.
Thir ty-four o the 55 delegates to the
William J . Barron, Counsel, Ma­jor
Appliance Division , General
Electric Company, Louisville, Ky.,
was one of the principle speakers
at the institute on REMEDIES in
LABOR RELATIONS, held at the
U of L School of Law, March 6.
He spoke on suits on Contra cts.
Constitutional Convention were law­yers.
They passionately believed in free­dom
under law. They believed in
Democracy. They were willing to
pledge their lives, fortunes, and sacred
>~onor to the belief that all men - not
JUSt the residents of the United States,
out all men - were entitled to fulfill
their individual destinies in freedom.
In those difficult times, the people
looked for leadership to men trained
111 many occupations and professions,
<.nd most certainly they looked to men
trained in law. I do not think the
legal profession today is as es teemed
llt the public mind as once it was.
1 nere may be many reasons for tll.is,
but of one I'm sure - far too many
young lawyers have turned their backs
on public service, preferring more
comtortable pursuits, to the hard,
rough demands of public responsibil­ity
and community leadership.
Today we lawyers must serve the
call of democracy if our nation and
our civilization are to survive. ot
only may self-isolation deprive us of
the healthy satisfactions of serving our
fellow men, but it may weaken the
structure that guarantees our freedom
and our ability to better ourselves and
our families.
World Peaca A Goal
Answering tl1is call may lead to try­ing
to achieve world peace through
world law, or it may .lind expression
in our own backyards in fighting
against community blight or for com­munity
improvement.
Wherever it leads, the cause is
worth the effort. I hope you will re­spond
because you will, I think, find
U1at life has more meaning if you do.
In the expression of the old swim­ming
hole - come on in, the water's
fine. I hope the next 23 years for you
will be as exciting as the last 23 years
have been for me. I'd like to com­pare
notes with you again in 1982.
Who knows . . . one of you may be
holding court on tl1e moon by then.
D. Boone Leads
Alumni For 1959-60
The election of officers for the Uni­versity
of Louisville Law S c h o o I
Alumni took place at a banquet in
the Mirror Room of the Kentucky
Hotel on April 1. Harold Saunders
presided over th e election of officers
by voice vote. The election by voice
vote was necessary because of the dis­appointing
return of only 6 ballots
printed in the fall issue of The Louis­ville
Lawyer. Those elected were
Daniel Boone, President, John Stout,
lst Vice Pres ident, Harry Berry, 2nd
Vice Pres ident, Ralph S. Petrilli, Sec­retary-
Treasurer. These officers will
serve for the year 1959-1960.
Eight THE LOUISVILLE LA WYEH
School ol
To Build
Law Works With
Continuing Legal
University
.Education
College
Program
Law Student Activities
MOOT COURT CLUB
ELECTION
On Thursday, February 5, 195Y, at
the meeting or the Moo( Court L.lub
held in the Allen Court Room, otucers
for the spring semester 1Y~tl were
elected as rollows: President, l< reu w.
Drogula; Vice-President, John Hardin;
and Secretary, Roy L. 'I'urner. The
outgoing officers or last semes ter are:
R. Austin Hansel, Marion Gilliam, and
Richard M. Whalen.
PHI ALPHA DELTA
The officers for Spring Term of the
Vinson Chapter of Phi Alpha Delta
Law Fraternity are William M. John­son,
justice; Donald G. Logsdon, vice­justice;
William A. Buckaway, Jr.,
treasurer; Thomas A. Brown, secre­tary;
Robert P. Hastings, marshal, and
James R. Thornton, reporter.
The Honorable Lawrence S. Grau­man,
Judge of the Jefferson County
Circuit Court, spoke at a recent dinner
meeting. Judge Grauman spoke pri­marily
to the new students and those
who had not yet pledged PAD as to
the value of joining PAD.
DELTA THETA PHI
At the regular monthly business
meeting of the Delta Theta Phi Law
Fraternity, held February 18, the fol­lowing
officers were elected for the
coming year: Dean, vVallace C. Talia­ferro;
Vice-Dean, John J. Slattery, Jr.;
Clerk of the Rolls, Stephen S. Stavron;
Clerk of the Exchequer, John F. Stew­art;
Master of the Ritual, Frederick G.
Williams; Bai liff, Leslie G. Houston;
Tribune, Marion Gilliam.
OMICRON DELTA
KAPPA
Two outstanding Law juniors were
tapped by Omicron Delta Kappa, na·
tiona! mens' honor fraternity , at the
Christmas Dance last semester. Ron
Mazzoli and Don Logsdon were the
recipients of this award.
Members are selected on the merits
of their schol arship, leadership and
extra-curricular activities.
THE LOUISVILLE LAWYER
University of Louisville
School of Law
2301 South 3rd Street
LOUISVILLE 8. KENTUCKY
FORM 3547 REQUESTED
Fenton and Updegraff
Speak At labor Institute
On March 6, 1959, the U. of L.
School of Law, University College,
ana the Louisville Bar Association
urutea to present an Institute, Rem­edies
in Labor Relations. The Insti­tute
cons•sted of afternoon and eve­ning
sessions.
The featured speaker of the after­noon
session was Clarence M. Upde­graff,
Professor of Law, University of
Iowa. Mr. Updegraff brought to the
Institute a nationally recognized repu­tation
in the field of arbitration. 1'he
guest speaker is an author of numer­ous
articles on arbitration and is
nationally prominent as co-author of
"Arbitration of Labor Disputes."
In the evening session Dean Volz
introduced the Hon. Jerome D. Fen­ton,
General Counsel, National Labor
Relations Board. Prior to his present
position Mr. Fenton had distinguished
himself in both the practice of law
and as administrative assistant to the
vice-president of Pan American Air­ways.
He assisted the Administrator
of Veteran Affairs, and has served as
Special Assistant to the Secretary of
Defense.
Short Courses, Institutes, And Evening Lectures
Held in Law School Building and University Center
A course on the Legal Problems of Small Business Enterprises was com­pleted
recently. It was part of the Law School's continuing legal education
program. The class met for six weeks in the evening during January and
.l"ebruary. There were 65 registered in the course.
There are three phases in the pro- yer's education: his education before
gram. The first involves short courses, law school, his education in law
mstitutcs, and evening lecture seri es. school, and the education which fol-
Specialized subjects are taught in the lows law school. He regards all tl1ree
second phase, such as Labor Arbitra- of these as being of equal importance.
tion. The establishment of a graduate The Law School is working closely
program leading to the LL.M. degree with the Education Committee of the
is the objective of the third phase. Louisvi lle Bar Association with respect
Dean Volz says, "the purpose of the to the short courses, institutes, and
program frankly recognizes that be- evening lecture series phase of the
cause of changing conditions and de- program. It is anticipated that nine
velopments in the law, a lawyer's cmnmittees of lawyers will sponsor
education must be for a life time, that some worthwhile educational event
it certainly doesn't end when he about every other year. The number
passes the bar exam, and that it is of such events would be four or five
rather difficult for the average lawyer a year.
on his own to conduct a well organ- Tentative additional courses for
ized and systematic program of con- ~all , 1959 are Law Medicine II,
tinuing legal education." He feels Patent and Trademark Law, Estate
that an urban law school in particular and Gift Taxation, and Investigation
has a real opportunity to assist the bar and Settlement of Personal Injury
because there is a large concentration claims. Tentative additional courses
of lawyers in the area. for Spring, 1960 are Estate Planning,
Volz believes that there are three Workmen's Compensation, and Ken-stages
or aspects in the average law- tucky Automobile Law.
UL AV P hoto
Distinguished visitors attending the traffic conference are pictured from left to right H'enry Howard. Dean
Marlin M. Volz, Morris Montgomery. Chief Justice of the Kentucky Court of Appeals. Jo M. Ferguson,
sta te aUornay general, and W. L. Matthews, Dean of the University of Kentucky School of Law.
Non-Profit Org.
U. S. P OST AGE
PAID
LOUISVILLE, KY.
Permit No. 435