Law Commons^™

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a …

Shutting The Black Door: Using American Needle To Cure The Problem Of Improper Product Definition, Daniel A. Schwartz

Michigan Law Review

Section 1 of the Sherman Act is designed to protect competition by making illegal any agreement that has the effect of limiting consumer choice. To make this determination, courts first define the product at issue and then consider the challenged restraint's impact on the market in which that product competes. When considering § 1 allegations against sports leagues, courts have tended to define products according to the structure of the leagues. The result of this tendency is that harm to competition between the leagues' teams is not properly accounted for in the courts' analyses. This, in turn, grants leagues a …

The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski

Michigan Law Review

The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …

Pinochet And International Human Rights Litigation, Curtis A. Bradley, Jack L. Goldsmith

Michigan Law Review

The British House of Lords recently considered whether Augusto Pinochet was subject to arrest and possible extradition to Spain for alleged acts of torture and other egregious conduct carried out during his reign as Chile's head of state. The Law Lords held that a large majority of the charges against Pinochet were not proper grounds for extradition under British law. They also held, however, that Pinochet could potentially be extradited for alleged acts of torture committed after Britain's 1988 ratifica· tion of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In reaching this latter conclusion, …

The Case Against Section 1983 Immunity For Witnesses Who Conspire With A State Official To Present Perjured Testimony, Jennifer S. Zbytowski

Michigan Law Review

This Note argues that witnesses who conspire with a state official to present perjured testimony at a judicial proceeding should not have absolute immunity from a section 1983 suit for damages. Part I provides background information on section 1983 and explains why a witness-state conspiracy satisfies the requirements of a section 1983 cause of action. Part I also summarizes the Supreme Court's doctrinal approach to section 1983 immunity. Finally, Part I examines two Supreme Court cases which are relevant to the issue of immunity for witness conspirators: Briscoe v. LaHue, and Malley v. Briggs. Part II applies the …

Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.

Michigan Law Review

This essay is about a neglected aspect of the problem of redressing constitutional violations. Most discussions focus on incentive effects. Unconstitutional conduct can be discouraged by the "hands-on" mechanism of reform by injunction or, more commonly, through the indirection of deterrence. Deterrence issues include selection of the penalties needed to deter official misconduct; the risk that they may also inhibit legitimate government activity; the recruitment of private attorneys general to augment enforcement; and various costs of administration. These and other aspects of deterrence pervade discussions in the Supreme Court. They are also debated in a rich and sophisticated secondary literature. …

A Board Does Not A Bench Make: Denying Quasi-Judicial Immunity To Parole Board Members In Section 1983 Damages Actions, Julio A. Thompson

Michigan Law Review

This Note argues that neither the majority nor the minority approach is realistic. A thorough examination of the parole process and section 1983 litigation will show that a third approach is more appropriate - that parole board members are entitled only to qualified immunity for all actions taken within the scope of their official duties. Part I argues that parole board members should not enjoy absolute, quasi-judicial immunity because the parole board decisionmaking process is not "functionally comparable" to judicial decisionmaking. The differences in procedure, political accountability, training, and background lead to two very different systems. Part II shows that …

Intramilitary Immunity And Constitutional Torts, Michigan Law Review

Michigan Law Review

This Note examines the reasoning underlying these conflicting approaches and concludes that a general rule of qualified immunity, which more fully protects the constitutional rights of members of the armed forces, is also consistent with the legitimate needs of the military establishment. Part I demonstrates that courts considering the scope of immunity in constitutional tort cases cannot rely blindly upon the rules and policies applicable in nonconstitutional cases, but must also accommodate the constitutional interests. Part II applies this principle to cases involving military officers. It argues in Section A that Feres v. United States does not support an absolute …

Self-Incrimination: Privilege, Immunity, And Comment In Bar Disciplinary Proceedings, Michigan Law Review

Michigan Law Review

The questions of the extent of an attorney's right to claim the privilege against self-incrimination during bar disciplinary proceedings and of the consequences of the exercise of the privilege has created a sharp division of opinion. The privilege against self-incrimination necessarily involves a conflict between the public's interest in disclosure and the individual's interest in privacy and nondisclosure. However, the conflict is exacerbated when the individual claiming the privilege is entrusted with important public responsibilities.

Immunity Under The Speech Or Debate Clause For Republican And From Questioning About Sources, Michigan Law Review

Michigan Law Review

Gravel v. United States, which arose out of Senator Mike Gravel's attempt to publicize the Pentagon Papers, concerned the scope of the immunity conferred upon a legislator and his aide under article I, section 6, of the United States Constitution. This provision, commonly called the "speech or debate clause," provides that "for any Speech or Debate in either House, [United States Senators or Representatives] shall not be questioned in any other Place." Gravel is one of the few Supreme Court interpretations of this clause.

Attorneys--Self-Incrimination--The Attorney's Privilege Against Self-Incrimination In A Disbarment Proceeding, Michigan Law Review

Michigan Law Review

A state court has jurisdiction to deal with the alleged misconduct of attorneys practicing before it either explicitly by statute or by ' virtue of its power to control the conduct of its own affairs. Indeed, it can suspend or disbar an attorney who fails to maintain the standard of conduct established for members of the legal profession. One aspect of such a standard is that an attorney is bound not to obstruct the administration of justice, a duty which imposes upon him an affirmative obligation to cooperate with the courts. The question frequently arises whether, in order to satisfy …

Municipal Corporations- Tort Immunity - Liability For Personal Injuries Caused By Nuisance Maintained By City, James Hourihan

Michigan Law Review

Plaintiff, while in the bathhouse of a municipally owned and operated swimming pool, was injured by a shock received from an electric hair dryer. In sustaining plaintiff's claim against the city for damages, the trial court recognized liability for personal injuries caused by a nuisance created and maintained by a city as an exception to the common law doctrine of municipal immunity from tort liability. On appeal, held, reversed. The nuisance exception from a municipality's common law immunity extends only to injuries to real property occasioned by a municipally created and maintained nuisance. City of Decatur v. Parham, …

Constitutional Law - Privilege Against Self-Incrimination - Danger Of Prosecution In Other Jurisdictions, George R. Haydon, Jr.

Michigan Law Review

Defendant, a witness called by the New Hampshire attorney general in an investigation of subversive activities, was granted statutory immunity in New Hampshire from criminal prosecution which might arise from his testimony and was ordered to testify. Since any disclosures would create serious danger of prosecution by the United States and Massachusetts, whose agencies were also investigating his activities, defendant refused to testify despite the grant of immunity, invoking the privilege against self-incrimination guaranteed by the state constitution. He was found guilty of contempt, subject to his exceptions regarding the constitutionality of the immunity statute. On hearing before the state …

Admiralty - Collision - Duty Of Third Vessel To Give Warning, Michael Scott

Michigan Law Review

Washington, a private merchantman proceeding north at night through a large United States Navy formation steaming west, received no warning from formation commanders that Ruchamkin, an escort, was rejoining from the east. Uninformed of Washington's presence and ordered to resume station expeditiously, Ruchamkin entered the formation at high speed. Despite late radical maneuvers upon discovery of Washington close aboard, Ruchamkin was struck by the latter's bow with resulting damage to both ships. On reciprocal libels, held, decree for Washington's owner. In addition to Ruchamkin's failure to anticipate Washington, the United States was negligent in that the …

Compelling The Testimony Of Political Deviants, O. John Rogge

Michigan Law Review

At the last term the United States Supreme Court in Ullmann v. United States upheld the constitutionality of paragraph (c) of a federal act of August 1954 which seeks to compel the testimony of communists and other political deviants. Paragraph (c) relates to witnesses before federal courts and grand juries. The Court specifically left open the question of the validity of paragraphs (a) and (b) relating to congressional witnesses. Justice Frankfurter delivered the Court's opinion. Justice Douglas, with the concurrence of Justice Black, wrote a dissent.

It is our purpose to consider the background, history and terms of this compulsory …

Constitutional Law - Civil Rights Acts - Civil Liability Of State Officials Acting Withing Their Discretionary Powers, Charles B. Renfrew S.Ed.

Michigan Law Review

Plaintiff was adjudged mentally ill by a county probate judge and ordered committed to a state mental hospital in November 1950. The commitment was made pursuant to a petition made out by the county deputy sheriff on the recommendation of a local attorney. In August of 1952, plaintiff was released from the state mental hospital. He then filed an action in the county circuit court to test the validity of his commitment. The circuit court found that the commitment was void, because of a failure by the authorities to comply with the applicable statutory requirements, and granted a permanent injunction …

Constitutional Law - Due Process - Privilege Against Self-Incrimination In State Criminal Proceedings, Frank M. Lacey

Michigan Law Review

In March 1951, defendant, a New York City policeman, was called to testify before a state grand jury investigating the association of city policemen with the criminal element of Kings County. Existing laws required public officers to execute a waiver of immunity to prosecution for matters to which their testimony related, on pain of losing their positions. The defendant signed such a waiver, and shortly thereafter resigned from the police force. He was called before the same grand jury again in December 1952, and on this occasion was asked whether he had ever accepted bribes while a policeman. He refused …

Legislation - Witness Immunity Act Of 1954 - Constitutional And Interpretative Problem, George S. Flint S.Ed.

Michigan Law Review

The passage in August, 1954 of a federal statute granting immunity under specified conditions to witnesses before congressional committees and in the federal courts marks a third legislative experiment designed to soften the effect of the Fifth Amendment as a limitation on the investigatory power of Congress. The first two attempts were less than successful. This comment will discuss the historical background of immunity legislation, and some possible constitutional pitfalls and problems of construction created by the statutory language.

Municipal Corporations - Waiver Of Immunity To Suit By Purchase Of Liability Insurance, Chester F. Relyea S.Ed.

Michigan Law Review

The City of Knoxville owned and operated a municipal airport under authority of a state statute which permitted a municipality to acquire, maintain, and operate a municipal airport in its governmental capacity, and which barred suits against the municipality with respect to its operation of the airport. The city carried a policy of liability insurance covering it in the ownership and operation of the airport. Plaintiff was injured by a fall at the airport terminal building, and instituted a negligence action against the city. The city moved for dismissal, relying upon the immunity given it by the statute. Held, …

Civil Procedure-Abatement-Status Of Suit Nominally Against Government Official When Official Leaves Office, Alan C. Boyd S.Ed.

Michigan Law Review

Often an action brought against an official of the sovereign is actually against the sovereign itself, nominally represented by the official. The status of such a suit when the official leaves office is even today not satisfactorily settled. The so-called representative suit, while at one time serving a purpose, has always been somewhat anomalous and today is antiquated and useless.

Witnesses-Wife As Witness Against Husband In Prosecution Under Mann Act, James F. Gordy S. Ed.

Michigan Law Review

Defendant was convicted of having transported his wife in interstate commerce for the purpose of prostitution in violation of the White Slave Traffic Act. Defendant's wife testified to the various transportations which defendant had made of her and to her practicing of prostitution at their different destinations. Defendant contended that the trial court erred in permitting his wife, over his objection, to testify against him. On appeal, held, affirmed. So far as appellant's rights were concerned, the wife's testimony was competent evidence against him. Shores v. United States, (8th Cir. 1949) 174 F. (2d) 838.

Libel And Slander-Testamentary Libel, Charles Hansen S.Ed.

Michigan Law Review

Although the right to recover for injury from admittedly defamatory matter would seem to be clear, the law imposes a series of obstacles when the offending statements are embodied in a will. Of the few cases which have arisen in this area, a recent decision, Carver v. Morrow, serves to illustrate the general problem. In this case, plaintiff claimed that portions of testatrix' will defamed him. After the will was probated, he brought an action against testatrix' executors on the ground that publication had been effected by probate, and that therefore a cause of action in libel existed against …

Municipal Tort Liability, Allan F. Smith

Michigan Law Review

Municipal government in the United States is big business. In 1946, the 397 cities having a population of 25,000 or more spent a total of nearly 3 billion dollars for general governmental expenditures. In 1947 the total increased by 17 per cent to $3,477,000,000. Of that amount, 2½ billion were actual operational expenses for such activities as public safety, public health, sanitation, hospitals, local street and highway maintenance, and schools. Since the figures do not include the amounts expended in connection with municipal water works or municipal street railways, they lend weight to the assertion that our municipal governments are …

Acquisition Of Evidence By Search And Seizure, Mary Louise Ramsey

Michigan Law Review

What protection do the Fourth and Fifth Amendments afford against acquisition of evidence by search and seizure, actual or constructive? Does an individual have a constitutional privilege against the disclosure of records he is required by law to keep? May police officers search premises on which an arrest is made and seize contraband which they find there? A series of cases recently decided by a closely divided Supreme Court has enveloped this field in the same deep fog of uncertainty which now hangs over so many other areas of constitutional law. The unstable quality of these precedents is attested by …

Constitutional Law-Tax Exemption Contract, Grétel Schinnerer

Michigan Law Review

A charter granted in 1863 by the State of Georgia to the Atlantic Coast Line Railroad Company provided as follows: "The stock of said company shall be subject to a tax not exceeding ½ per cent per annum on the net proceeds of its investments." In 1931, the Georgia legislature levied a tax of 5½ per cent on corporate net income. The railroad brought an action seeking to have an assignment under this tax declared invalid, on the theory that the tax as applied to the plaintiff railroad violated the contract clause of the federal Constitution. The Georgia Supreme Court …

Mandamus To Review State Administrative Action, Foster H. Sherwood

Michigan Law Review

The appearance of a substantial body of administrative law in the United States preceded its recognition as such by a good many years. In the intervening period, the courts made every effort to fit the new and unfamiliar jurisprudence into old and familiar forms, particularly those of the common law. This was a natural development, both because it accorded with common law traditions of adjustment, and because there was no legislative recognition of the view for action. The recognition that the problems of administrative law cannot invariably be solved within the framework of traditional legal concepts has paralleled the growing …

Costs - Assessment Of Court Costs Against An Agency Of The Federal Government, Walter Muller

Michigan Law Review

A complaint against defendant, filed in equity by the Reconstruction Finance Corporation, was dismissed without costs, the lower federal court being of opinion that it had no power to impose costs upon a governmental agency. The rule of court which bears on this point says, "costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law." Held, on appeal to the circuit court of appeals, the district court did have power to assess costs against the Reconstruction Finance Corporation. Reconstruction Finance Corp. v. J. G. Menihan Corp., (C. C. A. …