Law Commons^™

The Psychiatrist As An Expert Witness: Some Ruminations And Speculations, Bernard L. Diamond, David W. Louisell

Michigan Law Review

Consider the difference between the expert testimony of an orthopedic surgeon in a personal injury suit and the testimony of a psychiatrist in a murder trial in which some elements of the mens rea are at issue. In both instances an expert opinion is received in evidence, providing the trier of fact with technical, specialized information which must, or should, be available in order to permit a rational decision-making process. Well-established rules govern the nature of expert evidence and its mode of presentation. In legal theory, the orthopedic surgeon and the psychiatrist are both experts-physicians-who perform comparable functions in the …

Predicting Court Cases Quantitatively, Stuart Nagel

Michigan Law Review

This article illustrates and systematically compares three methods for quantitatively predicting case outcomes. The three methods are correlation, regression, and discriminant analysis, all of which involve standard social science research techniques. Two prior articles have generated requests for a study dealing with the problems involved in handling a larger number of cases and predictive variables. The present article is also designed to provide such a study. It does not presuppose that the reader has read the earlier articles, although such a reading might help to clarify further some of the points made here. The cases used to illustrate the methods …

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.

Scientific Eclat And Technological Change: Some Implications For Legal Education, George T. Frampton

Michigan Law Review

The law-trained man has frequently been viewed as faced toward the past and preoccupied with precedent, form, words, technicalities, and money. Well might such a man be the fitting product of an educational diet of moldering appellate case opinions taken Socratically with a few crusts of casebook "notes" and classroom lapses into lecture. This is not a man for the season of scientific successes or for a society transformed by technological change.

Social Security Disability Determinations: The Burden Of Proof On Appeal, Michigan Law Review

Michigan Law Review

In 1956, the Social Security Act was amended to provide monthly disability insurance benefits to qualifying individuals under a uniform national program administered by the Secretary of Health, Education, and Welfare. Under this program, a claimant is entitled to disability benefits if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to be of long continued and indefinite duration." This definition and its accompanying statutory standards were purposely made conservative in order to minimize the problems inherent in initiating the program; it was contemplated that …

Boulwareism And Good Faith Collective Bargaining, Michigan Law Review

Michigan Law Review

The obligation to bargain collectively in good faith is imposed on both the employer and the representative of his employees by the National Labor Relations Act. Generally, some form of ask-and-bid bargaining is used to satisfy this statutory obligation. Since 1947, however, the General Electric Company has developed and used a bargaining technique known as Boulwareism, which, on its face, seems capable of achieving the same results as the ask-and-bid method, but in a more efficient manner. Nevertheless, the National Labor Relations Board recently found Boulwareism to be in violation of the duty to bargain in good faith.

Horn: Subrogation In Insurance Theory And Practice, Spencer L. Kimball

Michigan Law Review

A Review of Subrogation in Insurance Theory and Practice By Ronald C. Horn.

Net Operating Loss Sustained By Taxpayer Prior To Marriage Cannot Be Applied Subsequently Against Spouse's Income- Calvin V. United States, Michigan Law Review

Michigan Law Review

Prior to marriage, plaintiff-wife sustained net operating losses which she was entitled to carry over under section 172 of the Internal Revenue Code. For the year 1959, the plaintiffs filed a joint return in which they applied the wife's net operating loss carryover deduction to both of their incomes. The Commissioner allowed the loss carryover to be applied to the wife's but not to the husband's income. In a suit for refund of taxes withheld from the husband's wages, held, judgment for defendant. If a husband and wife elect to file a joint return, net operating losses sustained by …

Advising A Witness To Exercise His Privilege Against Self-Incrimination When The Adviser's Motive Is To Protect Himself Is An Obstruction Of Justice-Cole V. United States, Michigan Law Review

Michigan Law Review

Defendant, who had perjured himself before a federal grand jury, feared that the testimony of his former employee before the same body would reveal the perjury. Knowing that the employee had previously filed a false affidavit with the McClellan Committee, defendant was able to persuade him to invoke his constitutional privilege against self-incrimination. When the former employee later voluntarily made a full disclosure to government agents, defendant was indicted by a second grand jury and convicted of corruptly endeavoring to obstruct the administration of justice in violation of section 1503 of the Federal Criminal Code. On appeal to the Court …

Foreign Lienor Cannot Prevail In Ohio Against Subsequent Good Faith Purchaser Who Holds Ohio Certificate Of Title- Commercial Credit Corp. V. Pottmeyer, Michigan Law Review

Michigan Law Review

Williams purchased an automobile in West Virginia from plaintiff's assignor on a conditional sales contract. The security interest was duly recorded in West Virginia and noted on the certificate of title. Before paying any of the purchase price, Williams fraudulently procured another West Virginia certificate of title free of notice of liens. Relying on the fraudulent certificate, the defendant bought the car from Williams at an Ohio automobile auction and obtained an Ohio certificate of title. The plaintiff brought suit in Ohio to recover the vehicle and obtained a favorable judgment, which was affirmed by an Ohio court of appeals. …

Ftc May Determine Whether Advertisements Containing Therapeutic Claims In Promotion Of Health Books Are Deceptive- Rodale Press, Inc., Michigan Law Review

Michigan Law Review

Rodale Press advertised that the ideas and suggestions in its publication, The Health Finder, would increase life span, prevent various diseases, and permit savings on medical and dental expenses. The Federal Trade Commission challenged the advertising claims, which were substantially restatements of claims made in the book, on the ground that adherence to the book's suggestions would not effect the promised results. The hearing examiner denied Rodale's motion to dismiss the complaint. On request for permission to file an interlocutory appeal from the dismissal, held, request denied, one commissioner dissenting. The Commission may challenge the collateral claims in …

The Regulation Of Investment Advice: Subscription Advisers And Fiduciary Duties, Charles G. Nickson

Michigan Law Review

In the landmark decision of SEC v. Capital Gains Research Bureau, Inc., the United States Supreme Court upheld the Commission's interpretation of an adviser's quasi-fiduciary status under the Investment Advisers Act of 1940 by holding fraudulent the failure of a subscription adviser to disclose to his clients his practice of acquiring securities before recommending their purchase, with the intent to resell immediately after the recommendation. It is the purpose of this comment to examine the major problems attending the dissemination of investment advice by subscription advisers, to evaluate those problems in the light of the higher standards of disclosure …

Whiteman: Digest Of International Law, William W. Bishop Jr.

Michigan Law Review

A Review of Digest of International Law. Edited by Marjorie M. Whiteman

The Line Between Federal And State Court Jurisdiction, Leslie A. Anderson

Michigan Law Review

From the beginning of this nation, there have been controversies involving the division of jurisdiction between federal and state courts. Often, these controversies have centered on the diversity of citizenship provision of the federal constitution. Today, however, the more poignant question is whether any division of jurisdiction between the federal and state systems retains logical bases.

Although myriad developments have relevancy with respect to this question, I have here focused upon two of the more important ones: the increasing overlap of subject matter being litigated in federal and state courts and the growing uniformity of standards to be applied in …

Prior Lien On Rents And Profits Upheld As A Method Of Financing Repairs- In Re Dep't Of Bldgs., Michigan Law Review

Michigan Law Review

Official findings of the New York Legislature in 1962 revealed the existence in certain cities of housing conditions which, unless immediately corrected, might cause irreparable damage to buildings or endanger the life, health and safety of their occupants or the general public. To facilitate the correction of these conditions and to increase the supply of adequate, safe dwelling units, the legislature enacted the 1962 Receivership Law, which creates a procedure enabling a city to enforce its housing codes by compelling needed repairs and improvements.

The Federal Securities Act And The Locked-In Stockholder, Neil Flanagin

Michigan Law Review

The Securities Act of 1933 is generally identified with Securities and Exchange Commission registration and the attendant disclosure for primary and secondary public offerings of securities. Because of the uncertain scope of the registration requirements, however, it has the practical effect of seriously restricting certain security holders in selling or dealing in their securities. Security holders so restricted may be underwriters themselves or persons considered to be underwriters for the particular transaction. The difficulties arise in determining which security holders are included within this class and which transactions by those parties are affected. It is to these problems that the …

Zoning Law In Michigan And New Jersey: A Comparative Study, Roger A. Cunningham

Michigan Law Review

It is one thesis of this article that the "lawyer's view" has generally prevailed in Michigan and that the "planner's view" has generally prevailed in New Jersey. Since the zoning law of these two states is thus fairly representative of the opposing judicial attitudes set forth in the preceding paragraph, they are especially suitable for comparative study. This study begins with a look at the constitutional bases and statutory provisions for zoning. It then proceeds to examine judicial attitudes toward zoning determinations in general and continues by focusing on specific current zoning problems. The conclusions to be drawn from these …

The Antitrust Expediting Act- A Critical Reappraisal, Robert C. Bonges

Michigan Law Review

The Expediting Act has been subject to some rather severe criticism from the bench and bar. At the extreme, it has been suggested that the act be repealed and the procedure for appealing government civil antitrust cases be completely overhauled. Even proponents of the act have acknowledged its need of revision, but there is little agreement among them on the extent and nature of desirable change. This comment will explore the origins, development, and current role of the Expediting Act in order to help determine what course revision, if it is needed, should follow.

Admissibility Of Parol Evidence In Judicial Determinations Of Arbitrability, Michigan Law Review

Michigan Law Review

Whether parol evidence of bargaining history is admissible in a court's determination of arbitrability is a problem arising out of the United States Supreme Court's 1960 decisions in the Steelworkers Trilogy. The Court there emphasized the national labor policy favoring arbitration as the best means of resolving labor disputes. Citing its earlier Lincoln Mills decision interpreting section 301(a) of the Labor Management Relations Act, the Court stated that, in enacting section 301, Congress assigned the question of the jurisdiction of an arbitrator to the courts in the absence of an agreement by the parties specifically assigning the question to …

The Report Of The President's Cabinet Committee On Private Pension Plan Regulation: An Appraisal, Thomas B. Ridgley

Michigan Law Review

The growth of private employee pension plans in the American economy is astonishing. From 1953 to the end of 1964, the accumulation of assets of private pension funds has grown from 16.9 billion dollars to 75 billion dollars, with a projected accumulation of 225 billion dollars by 1980. At present, private retirement plans cover approximately 25 million workers, which is one-half of all employees in private non-farm establishments. Moreover, unions increasingly stress both the creation of pension plans where none exist and increased benefits from current plans. Thus, during the recent United Auto Workers negotiations the union sought and received …

Judicial Enforcement Of Administrative Subpoena Must Be Initiated By Service Of Process- Hemphill V. Lenz, Michigan Law Review

Michigan Law Review

Over a four-year period the city of Philadelphia had entered into contracts with Marbelite Company, a New York corporation, for traffic signal equipment. Acting pursuant to section 8-409 of the Philadelphia Home Rule Charter, the city controller served the treasurer of Marbelite, in Philadelphia, with a subpoena requiring him to produce certain corporate records and to testify concerning requisitions for payments on the contracts. Refusing to comply with the subpoena, the treasurer returned to New York. The controller then filed a petition in the Court of Common Pleas of Philadelphia County and obtained an order to show cause why the …

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 …

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.

Prejudicial Reliance Upon A Trial Court's Ruling May Result In Suspension Of Federal Rules On Timeliness Of Appeals-Thompson V. Immigration & Naturalization Serv.; Wolfsohn V. Hankin, Michigan Law Review

Michigan Law Review

In Thompson v. Immigration & Naturalization Serv., twelve days after the federal district court had entered an order denying a petition for naturalization, petitioner announced his intention of making motions for a new trial and amended findings of fact. Although the motions must be filed within ten days of the entry of judgment, the judge assured petitioner they were made in ample time, and no objection was raised by the Government. Six months later the motions were denied. Within sixty days of this denial, but not within sixty days of the original judgment, petitioner filed a notice of appeal. …

Sabbatino Doctrine Modified In Foreign Assistance Act Of 1964, Michigan Law Review

Michigan Law Review

Prior to Banco Nacional de Cuba v. Sabbatino, one of the United States Supreme Court's most controversial recent decisions touching on matters of international law, it had been held that American courts could not question titles to property acquired by virtue of a public taking decreed by a recognized foreign government and carried out within its territory. This concept of judicial abstention, embodied in the "act of state doctrine," was held applicable in Sabbatino even though it was alleged that the asserted claim to the property stemmed from a confiscation that violated customary international law. This decision led Congress …

Withholding Taxes On Wage Dividends For Pre-Bankruptcy Wages Assigned To Fourth Priority In Distribution Of Bankrupt's Estate-In Re Connecticut Motor Lines, Inc., Michigan Law Review

Michigan Law Review

Among claims against a bankrupt estate were those for unpaid wages and vacation pay earned within three months of the bankruptcy of the employer. The referee ordered distribution of the amount of the claims, assigning them second priority, but he refused to authorize deduction of income withholding tax and social security taxes from these payments as requested by the Government. The district court reversed, holding the trustee in bankruptcy liable for the taxes as a first priority administrative expense. On appeal, held, reversed. Taxes based on wage claims accruing prior to bankruptcy but paid during bankruptcy are section 64a(4) …

Kauper: Religion And The Constitution, Wilber G. Katz

Michigan Law Review

A Review of Religion and the Constitution. By Paul G. Kauper.

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 …

Controlling The Police: The Judge's Role In Making And Reviewing Law Enforcement Decisions, Wayne R. Lafave, Frank J. Remington

Michigan Law Review

We have chosen to focus here upon judicial involvement (1) in determining whether arrest and search warrants should issue and (2) in reviewing such decisions after they have been executed (and, perhaps, made) by police officials. A comparison of some recent findings respecting the actual practice at the trial level with the "ideal" as set forth in appellate opinions may allow some conclusions to be drawn both as to the present effectiveness of appellate rulings on these subjects and as to the ultimate feasibility of further implementation of those rulings. Finally, since the exclusionary rule is, theoretically at least, one …

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 …