Law Commons^™

Emerging Standards For Implied Actions Under Federal Statutes, Gary W. Klotz

University of Michigan Journal of Law Reform

This article will examine the theoretical basis for finding implied causes of action in legislation and the development of the implication doctrine in the federal courts. In particular, the Cort v. Ash case will be discussed, both in terms of the standards articulated by the Supreme Court in dicta and the potential impact of Cort on the law of implied remedies.

Wrongful Dishonor, James J. White

Other Publications

Uniform Commercial Code section 4-402. I. Basic Liability II. Damages III. Miscellaneous Asides

Trends In The Law Of Damages, John W. Reed

Articles

The law of damages deals with the process of translating harm into dollars. It is not, however, a coherent body of knowledge. Rather, it consists of an amalgam of many concepts and rules having to do with fundamental policy questions about loss-shifting, risk-spreading, and allocation of functions between judge and jury. Because damages is a "non-subject," little attention is paid to it in law school curricula and there is little writing about it. As one commentator put it, the law of damages "plods its way, ignored by academicians and 'accepted' by the courts. . . . The 'winds of change' …

Judicial Examination Of The Accused--A Remedy For The Third Degree, Paul G. Kauper

Michigan Law Review

Reprint from 30 Michigan Law Review 1224.

In its report on "Lawlessness in Law Enforcement" the Wickersham Commission concludes that in the police systems of a number of American municipalities the "third degree" is very generally practiced as a means of extorting from accused persons under arrest confessions, incriminating statements, and other information of value to the police. The conclusion of the Commission confirms the results of private investigation made in the same field. It is true that the methods of inquiry pursued by the Commission leave doubt as to the accuracy of some of the facts reported. But the …

Deterring Misuse Of Confidential Government Information: A Proposed Citizens' Action, Joseph J. Kalo

Michigan Law Review

Part I of this article offers two examples-predicated on historical fact-that illustrate the possible adverse consequences of disclosure of confidential government information. Part I also examines present statutory and regulatory safeguards against such disclosure and analyzes their effect. Part II sets forth a proposal for reducing the possibility that confidential government information will be improperly used and for recouping government losses by means of a citizens' action. when it is so used.

Compensation For Pain: A Reappraisal In Light Of New Medical Evidence, Cornelius J. Peck

Michigan Law Review

The theory that a primary causal link exists between the victim's pain and the tortfeasor's acts provides considerable appeal for the proposition that the wrongdoer should compensate for the victim's pain. However, recent investigations of the phenomenon of pain by disciplines of the health sciences have challenged the medical theory upon which recoveries for pain and suffering are based. The results of that work are of obvious interest to the legal profession, for the new view of pain suggests that the tortfeasor's acts bear only a tangential relationship to the pain that some victims experience. The results thus raise questions …

The Court, The Legislature, And Governmental Tort Liability In Michigan, Luke K. Cooperrider

Michigan Law Review

In 1961, when Justice Edwards of the Michigan supreme court said, "From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan," he went on to say that he was eliminating from the law of Michigan "an ancient rule inherited from the days of absolute monarchy," a "whim of long-dead kings." Justice Carr, dissenting, agreed that the doctrine in question "came to us as a part of the common law," for which reason he thought it was protected by the reception clause of the Constitution of 1850 from the overruling action of the …

The Automobile Manufacturer's Liability To Pedestrians For Exterior Design: New Dimensions In "Crashworthiness", Michigan Law Review

Michigan Law Review

Each year approximately twenty per cent of all traffic fatalities in the United States are pedestrians. Of the 54,700 people killed in traffic accidents in 1971, 10,600 were pedestrians. Cyclists made up another 850 fatalities. In addition to the over I 1,000 pedestrians and cyclists killed, an estimated 150,000 pedestrians were injured in 1971. This Note concerns the liability of automobile manufacturers for injuries caused by the exterior design of their products. The plaintiffs in most cases will be pedestrians, but exterior design defects may also injure motorcyclists, bicyclists, and, more rarely, occupants of other vehicles. For convenience, the term …

Tort Liability Of A University For Libelous Material In Student Publications, Michigan Law Review

Michigan Law Review

While attention will occasionally be drawn to the impact of the New York Times privilege, this Note largely assumes that a defamed plaintiff is capable of overcoming the constitutional barriers imposed by New York Times and its progeny. In other words, the assumption is made that libelous statements either fall outside the constitutional privilege or that the plaintiff can demonstrate actual malice in the student authors or editors. The Note will analyze the traditional theories which may be invoked to establish the university's liability for defamatory material in student publications. First, a range of student newspaper-university relationships will be examined …

Torts--Wrongful Death--Unborn Child--The Estate Of An Unborn Child Has A Cause Of Action For Wrongful Death--O'Neill V. Morse, Michigan Law Review

Michigan Law Review

The attitude of the law toward the unborn child has differed according to the area involved and its underlying concepts and policy. It has been settled en ventre sa mere be to his benefit. Legal recognition was accorded "for the purpose of providing for and protecting the child, in the hope and expectation that it will be born alive and be capable of enjoying those rights which are thus preserved for it in anticipation." In this context, the live-birth requirement is not surprising. The injustice of depriving a posthumous child of an inheritance is apparent only if the child is …

Admiralty--Torts--Recovery Permitted For Mental Suffering Of Surviving Spouse In Death Action Under General Maritime Law--In Re Sincere Navigation Corp., Michigan Law Review

Michigan Law Review

A recent federal district court decision, In re Sincere Navigation Corp. allowed recovery for the emotional distress of the spouse and the children of a seaman killed in a collision on the Mississippi River ·within the territorial waters of Louisiana. The action for ·wrongful death was brought under general maritime law through a new federal remedy first announced in Moragne v. States Marine Lines, lnc. Moragne did not specifically enumerate the elements of damage for which recovery would be allowed; instead it left the question open for consideration in later decisions. Whether any recovery was permitted under general maritime law …

Workmen's Compensation: Toward A Stricter Liability For Enterprise, John A. Payne Jr.

University of Michigan Journal of Law Reform

This article considers the situation in which an employee injured by a defective product in the course of his employment can proceed both against his employer insured by a workmen's compensation program and against a manufacturer of the employer's equipment who is strictly liable under a claim of products liability. The focus is not on the manufacturer as employer but on the manufacturer as supplier of defective equipment which causes injury. This is the best situation for analyzing the problems arising from the present system for distributing losses because, where the negligence of the employer has been an independent cause …

Torts--Strict Liability--A Hospital Is Strictly Liable For Transfusions Of Hepatitis-Infected Blood--Cunningham V. Macneal Memorial Hospital, Michigan Law Review

Michigan Law Review

This Recent Development will briefly trace the development of hospital liability for transfusions of hepatitis-infected blood and will analyze both the impact of Cunningham on that area of the law and the correctness of the Cunningham decision.

Financial Statement Insurance: A New Approach To Ivestor Protection, Stephen Z. Surridge

University of Michigan Journal of Law Reform

The accounting profession rapidly is moving toward a crisis in liability. Members of the investing public are suing accountants with mounting frequency and success. This article will analyze briefly the origin and present dimensions of the crisis, and then propose a plan for replacing court-imposed liability with insured liability through the offering of financial statement insurance. The essentials of the plan can be simply stated. Insurance would be offered by accountants to investors on a voluntary basis in conjunction with purchases and sales of corporate stock and securities. Individual investors would be able to purchase from the auditors of a …

Slumlordism As A Tort--A Brief Response, Joseph L. Sax

Michigan Law Review

Professors Blum and Dunham begin their comment by accusing us of having a new idea. We plead guilty. Our purpose was to demonstrate that accepted principles in analogous areas of law would support a slumlordism action, not to argue that tort law as presently applied would do so. Indeed, our basic intent was to underscore the myopia of existing tort law perspectives.

Slumlordism As A Tort--A Dissenting View, Walter J. Blum, Allison Dunham

Michigan Law Review

The persistence of substandard housing in urban centers stands as a challenge to law. There is a pressing need to re-examine whether prevailing legal doctrines are adequate for dealing with the problem and to suggest new doctrines where the old are found wanting. To their great credit, Joseph L. Sax and Fred J. Hiestand in their article "Slumlordism as a Tort" face up to these tasks boldly and vigorously. They conclude that, under existing conditions, it is imprudent to rely on public authorities to enforce housing codes and it is unlikely that legislatures will place sufficient enforcement powers in private …

Labor Law-Prima Facie Tort Doctrine Bars Unreasonable Deprivation Of Union Membership-Hurwitz V. Directors Guild Of America, Inc., Michigan Law Review

Michigan Law Review

In July 1965 the officers of the Directors Guild of America (DGA) and the Screen Directors International Guild (SDIG) concluded a merger agreement which provided that DGA was to be the surviving union and SDIG members were to become members of DGA automatically upon signing the DGA non-Communist loyalty oath. Although the SDIG membership ratified the merger agreement by a majority vote, six members steadfastly refused to sign the oath and as a result were not admitted to membership in DGA. They thereupon brought a diversity suit in a New York federal district court: and moved for a preliminary injunction …

Slumlordism As A Tort, Joseph L. Sax, Fred J. Hiestand

Michigan Law Review

The war against poverty has been fought with rather more vigor than its initiators contemplated. Thus far, however, the major engagements have taken place in the streets of Watts and Chicago, which is not quite what they had in mind. Some, who think it odd that as we pass more laws we get more lawlessness, will perhaps content themselves by observing that the feeding hand is always bitten. Those less easily satisfied have begun to see the need for adopting some legal solutions as far reaching as the problems they are designed to abate; the following article is addressed to …

Sec Enforcement Of The Rule I0b-5 Duty To Disclose Material Information-Remedies And The Texas Gulf Sulphur Case, Edmund B. Frost

Michigan Law Review

On April 16, 1964, the Texas Gulf Sulphur Company announced one of the most significant mineral discoveries of the twentieth century-a major copper and zinc deposit near Timmins, Ontario, found by means of geophysical exploration and exploratory drilling. Unusual market activity prior to this announcement prompted a Securities Exchange Commission (SEC) investigation of insider stock transactions. In April 1965, the SEC brought suit against a group of Texas Gulf insiders, alleging that their purchase of stock on national exchanges before the disclosure of the information concerning the Timmins strike constituted a violation of section 10(b) of the Securities Exchange Act …

Trademarks-Successful Plaintiffs In Trademark Infringement Actions Under The Lanham Act May Not Recover Attorney's Fees-Maier Brewing Co. V. Fleischmann Distilling Corp., Michigan Law Review

Michigan Law Review

In an action for trademark infringement under the Lanham Act and for unfair competition, the District Court enjoined the defendant company from further use of the trademark and awarded the plaintiff $60,000 in attorney's fees. On appeal, held, reversed in part. The issuance of the injunction was upheld but the court declared that attorney's fees are not recoverable in trademark infringement cases prosecuted under the Lanham Act since Congress had not expressly provided for such awards.

Motor Vehicles--Legislation--The Michigan Motor Vehicle Accident Claims Act, Michigan Law Review

Michigan Law Review

With the adoption of the Michigan Act, Michigan has become the fifth state to adopt a comprehensive program utilizing both the insurance and the fund approaches. Moreover, the Michigan Act, apparently inspired by its Ontario prototype, contains some elements which were previously unknown in United States legislation. Consequently, it may prove enlightening to examine the scope and purpose of the Michigan Act, and to compare it with similar legislation in other states.

Products Liability--Some Observations About Allocation Of Risks, Page Keeton

Michigan Law Review

Virtually all of the activities of mankind involve the use of some product. Consequently, nearly all losses in the nature of physical damage to persons or things, and a great deal of the economic losses flowing from inferior or unfit products, are factually caused by characteristics or conditions of products, or at least occur during the use of products. Therefore, when fault, in the sense in which fault has been used in the Anglo-American law of torts (a usage which frequently results in the imposition of liability without personal fault), is abandoned as a basis for shifting or allocating losses, …

Products Liability--The Expansion Of Fraud, Negligence, And Strict Tort Liability, John A. Sebert Jr.

Michigan Law Review

While judicial acceptance of this concept of strict tort liability has been proceeding apace, far less dramatic but equally significant developments have been occurring with respect to both negligence and fraud liability. The possibility of recovering for a seller's misrepresentations concerning his product has been enhanced by a plaintiff-oriented judicial redefinition of two elements of a cause of action for fraud: defendant's knowledge of the falsity of his representation and plaintiff's reliance upon the deception. At the same time, negligence liability has often come to resemble liability without fault as courts continue to deemphasize, as a prerequisite to the application …

Products Liability Based Upon Violation Of Statutory Standards, Joseph H. Ballway Jr.

Michigan Law Review

Regulatory enactments controlling production and distribution can give rise in several different ways to civil liability on behalf of persons injured by non-conforming merchandise. For instance, if a statute codifies existing common-law rules of negligence, its effect is merely to place the weight of legislative authority behind ordinary negligence principles. Since an injured party's recovery under such a provision still depends largely upon his proving in the traditional manner that a defendant failed to exercise due care, this kind of statute merits no further discussion. On the other hand, if particular legislation expressly states that a violator may be subjected …

The Contractual Aspect Of Consumer Protection: Recent Developments In The Law Of Sales Warranties, William C. Pelster

Michigan Law Review

As might have been expected, the courts have not confined their efforts in updating the law of products liability to fostering innovations in that segment dealing with warranties. The struggle to impose strict tort liability upon a manufacturer for harm caused by his defective products has made significant advances and is continuing: However, the citadel has yet to be taken. Indeed, even the California Supreme Court, which may be considered the leading proponent of this strict tort theory, has limited its availability so that only those seeking redress for harm to person or property may invoke the doctrine; thus, a …

Noise And The Law, George A. Spater

Michigan Law Review

For practical purposes the discussion of the law of noise can be considered in two parts: first, the rights of a complainant against a private person and second, the rights of a complainant against the government or an agency acting by government authority.

Federal Law Held To Govern Effect Of The Release Of A Joint Tortfeasor In Private Antitrust Suit-Winchester Drive-In Theatre, Inc. V. Twentieth Century Fox Film Co., Michigan Law Review

Michigan Law Review

Private antitrust litigation occasionally raises the question of whether state or federal law should be applied to determine the effect of the release of a joint tortfeasor. When federal law is applied, as it was in Winchester Drive-In Theatre, Inc. v. Twentieth Century-Fox Film Co., there remains the necessity of formulating a rule of federal law, since there appears to be no established federal rule governing releases in antitrust suits.

Judgment Against Insured Is Conclusive Proof Of Amount Of Claim Against Dissolved Insurer- Commonwealth Ex Rel. Woodside V. Seaboard Mut. Cas. Co., Michigan Law Review

Michigan Law Review

Plaintiffs, injured in an automobile accident, brought suits against an insured taxicab company. Before the case came to trial, the insurance commissioner found the insurer insolvent. In a separate proceeding he obtained a court order dissolving the insurer, enjoining the prosecution of any legal action against the insurer's assets, and providing for the filing of proof of claims with the insurance commissioner. The insurer's attorney, who had entered an appearance on behalf of the taxicab company, withdrew, and in an undefended action the plaintiffs recovered judgments against the cab company totalling nineteen thousand dollars. Unable to obtain execution on these …

An Inquiry Into The Utility Of "Domicile" As A Concept In Conflicts Analysis, Russell J. Weintraub

Michigan Law Review

No attempt is made here to conduct an exhaustive case study of any one particular area in which the concept of "domicile" is used as a tool for analysis in the conflict of laws. A number of thorough and useful studies have been made in narrow areas and are cited at appropriate places in the body of this article. Instead, this article will review the use of "domicile" in analyzing certain typical conflicts problems, particularly its use as the contact or pointing word in choice of law rules concerning the testate and intestate distribution of movables, and, as is newly …

The Qualitative Governmental Interest Analysis: New York's Conflict Of Laws Rules In Transition-George V. Douglas Aircraft , Co., Michigan Law Review

Michigan Law Review

The traditional choice of law rule for torts is that the law of the place of wrong is determinative of all substantive issues. This rule has been frequently criticized and has been rejected by the Restatement (Second), Conflict of Laws, and by a few courts, particularly those of New York. The successor to the traditional approach, however, has not been determined. Under the view of the Restatement (Second), the applicable substantive law is that law of the state which has the most significant relationship with the occurrence and with the parties. Although a qualitative approach would seem possible under …