Harrow, Benjamin

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St. John's University School of Law

St. John's Law Review Volume 13 Number 2 Volume 13, April 1939, Number 2 Article 33 May 2014 Handbook of the Conflict of Laws (2nd Ed.)(Book Review) Benjamin Harrow Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Harrow, Benjamin (1939) "Handbook of the Conflict of Laws (2nd Ed.)(Book Review)," St. John's Law Review: Vol. 13 : No. 2 , Article 33. Available at: https://scholarship.law.stjohns.edu/lawreview/vol13/iss2/33 This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHN'S LAW REVIEWHANDB30K OF THE CONFLICT OF LAws. By Herbert F. Goodrich. Second Edi-tion. St. Paul: West Publishing Co., 1938, pp. xiv, 624.The first edition of the author's handbook on Conflict of Laws' has longbeen a standard textbook of reference for students and teachers of a phase ofthe study of law that presents a point of contact with almost every other subjectin a law school curriculum. The publication of a second edition comes aftereleven years of unusual activity and events in the development of principles ofconflict of laws.On the scholarship side should be mentioned the completion of the task ofthe restatement of the law ' first undertaken in June, 1923, under the leadershipof Professor Joseph H. Beale with the present author as arbiter for the chapteron administration, and also as advisor. This was followed almost immediatelyby Professor Beale's outstanding treatise in three volumes on the conflict oflaws and selections from the treatise printed especially for the use of lawstudents.'In the field of casebooks for the use of students, three recent contributionshave appeared." The publication of such a wealth of material was given a fes-tive air through the celebration of the one-hundredth anniversary of the publica-tion of Justice Story's Commentaries on the Conflict of Laws.The first edition- of the handbook was intimately tied up with the firstedition of Professor Lorenzen's casebook: the citations to cases referred thestudent to the appropriate page in Professor Lorenzen's casebook. This provedan ideal combination for the student. He could read the cases assigned to himfor study and then refer to the handbook for a correct understanding and com-ment on the principles illustrated by the cases. But the Lorenzen editions werechanging rapidly from one to four, and Professor Goodrich himself had becomepart author of a casebook. The references in the handbook to Lorenzen's case-book were fast becoming obsolete. Each year the student looked forward hope-fully to a revised edition of the handbook.The second edition is quite rich in references to cases, especially recentones, and to the vast material that has been made available in the field of con-flict of laws, particularly the restatement of the law. It is rather surprising tofind the author still closely attached to Professor Lorenzen's casebook, and nu-merous cases are cited throughout the book with special reference to the appro-'Handbook on the Conflict of Laws by Herbert F. Goodrich; West Pub-lishing CO., 1927.'Adopted and promulgated by the American Law Institute on May 11, 1934.'A Treatise on the Conflict of Laws published by Baker-Voorhees & CO.in 1935; Selections From a Treatise on the Conflict of Laws with a Summary,published by Baker-Voorhees & Co. in 1935.'Cases on the Conflict of Laws by Eliott E. Cheatham, Noel T. Dowling,and Herbert F. Goodrich; Foundation Press, Inc., 1936.Cases on Conflict of Laws, Fourth Edition, by Ernest G. Lorenzen; WestPublishing Co., 1937.Cases and Other Materials on Judicial Technique on the Conflict of Lawsby Fowler Vincent Harper and Charles W. Taintor; Bobbs Merrill CO., 1937.'Ibid.[ VOL. 13BOOK REVIEWSpriate page in the Fourth Edition of Lorenzen. One would have expectedreferences to the author's own casebook. The absence of such references mustbe attributed to the author's modesty.It has been said that principles of conflict of laws have changed very littlesince Justice Story first stated them one hundred years ago. A comparison ofboth editions of the author's handbook would confirm this and would revealthe further fact that the major changes that have taken place have occurredduring the past decade. As the author himself points out in the preface, thedevelopment of the law has been most marked in the field of taxation. Thesedevelopments have been in the direction of limiting the jurisdiction of states totax, in order to minimize double taxation, particularly in the field of death andinheritance taxation.Following the case of Frick v. State of Pennsylvania' which held thatonly the state of the situs of taxable property could tax the transfer, at deathof such property, the Supreme Court has limited the jurisdiction to tax in-tangible personal property at death to the state of the domicile of the owner ofsuch property.7 Jurisdiction to tax the transfer, at death, of intangible personalproperty that had become part of a business situs different from the domicileof the owner has not yet been determined finally by the Supreme Court, al-though the trend of recent decisions in personal property tax cases I wouldindicate that such jurisdiction will be limited to the state of the business situs.In the light of the development of principles, of taxation in the field of per-sonal property taxes and inheritance taxes, it would appear that the power ofstates to tax income is proceeding along unsound principles. The Supreme Courthas held that a state may tax the entire income of a person domiciled in thatstate regardless of the source of such income.0 A state also has jurisdiction totax a non-resident on income earned within such state. These decisions openup a fertile field in income taxation for double taxation on two different basesof jurisdiction, so that while the court is attempting in one field (inheritancetaxation) to establish a rule that double taxation is unconstitutional, it actuallyseems to be working towards a contrary rule in the field of income taxation.It is submitted that economic developments in modern times make it neces-sary to limit jurisdiction to tax incomes to the state where such income isearned, eliminating the jurisdiction of the domiciliary state to tax such incomea second time. This principle would appear to have constitutional sanction inthe equal privileges and immunities clause, which gives to a citizen of theUnited States the right to transact business in any state. For the domiciliarystate to tax such a right safeguarded by the Constitution merely on the basisof the domicile of the citizen is certainly inequitable and most likely unconsti-'268 U. S. 473, 45 Sup. Ct 603 (1925).'Farmers Loan & Trust Co., Executor v. Minnesota, 280 U. S. 204, 50Sup. Ct. 98 (1930) ; Baldwin v. Missouri, 281 U. S. 586, 50 Sup. Ct. 436 (1930);First Nat. Bank of Boston v. Maine, 284 U. S. 312, 52 Sup. Ct. 174 (1932).'Wheeling Steel v. Fox, 298 U. S. 193, 56 Sup. Ct. 773 (1936) ; First BankStock Corp. v. State of Minnesota, 301 U. S. 234, 57 Sup. Ct. 677 (1937).' Lawrence v. State Tax Commission of Mississippi, 286 U. S. 276, 52 Sup.Ct 556 (1932) ; Cohen v. Gra'es, 300 U. S. 308, 57 Sup. Ct. 466 (1937).'Shaffer v. Carter, 252 U. S 37, 40 Sup. Ct. 221 (1920).1939]ST. JOHN'S LAW REVIEWtutional. n The author of the handbook might have discussed more thoroughlythe expanding powers of states to tax income and its implications.As a handbook the Second Edition continues to be an outstanding textbookand work of reference. One hundred twenty-four pages have been added to theoriginal book. The arrangement of the material continues to be ideal for stu-dents. In each chapter the principles are succinctly stated in bold-face typefollowed by the author's clarifying elaboration with copious references to casesand sources. The publisher's contribution of an attractive red cover should alsobe mentioned.BENJAMIN HARROW.*FEDERAL TAXES ON ESTATES, TRUSTS AND GIFTS, 1938-1939. By Robert H.Montgomery. New York: Ronald Press Co., 1938, pp. xi, 511.In 1935 there first appeared a Handbook on Federal Taxes on Estates,Trusts and Gifts under the co-authorship of Robert H. Montgomery andRoswell Magill. The reader can think of no other two persons better qualifiedto write such a handbook. A Second Edition appeared in 1936 and after alapse of one year, tax practitioners will be pleased to learn that a Third Editionmay now be added to their library.The author explains that Professor Magill was unable to collaborate inthe preparation of this edition for the reason that he served as Under-Secretaryto the Treasurer of the United States from 1937 to September, 1938.The present edition follows the same plan of the previous editions ofdiscussing the current status of the law as it affects the Estate Tax, the GiftTax, and the Income Tax on estates and trusts. There is also a valuable con-tribution on planning the distribution of an estate.The basic problems of an estate tax are not difficult to understand. Thecomplications arise primarily in connection with inter zdvos transfers that aremade taxable upon the death of the grantor. Property to which a decedent hasabsolutely no legal title is included as a basis of taxation, as if such propertyactually were legally owned by the decedent at death. This system of make-believe which turns accepted legal principles topsy-turvy is responsible forchaos in legal reasoning and whimsical decisions on the part of courts. Forexample, a decedent transfers property in contemplation of death. This prop-erty is included in the donor's estate at death, the tax being based on the valueof such property at the date of death.Again, there has been considerable litigation on the question of whether ornot a gift has been made in contemplation of death. Most cases before thecourts have been lost by the Treasury Department. Inasmuch as inter zvostransfers are today subject to a gift tax, the author is of the opinion that thecontemplation of death provision might readily be repealed with correspondingbenefits in the reduction of litigation and simplification of administration.'Colgate v. Harvey, 296 U. S. 404, 56 Sup. Ct. 252 (1935) ; The TaxingPower-State Income Taxation by Walter K. Tuller, published by Callaghan& Co., 1937, passim.* Professor of Law, St. John's University School of Law.[ VOL. 13

Handbook of the Conflict of Laws (2nd Ed.)(Book Review)

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Handbook of the Conflict of Laws (2nd Ed.)(Book Review)

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