Law Commons^™

Suspecting The States: Supreme Court Review Of State-Court State-Law Judgments, Laura S. Fitzgerald

Michigan Law Review

At the Supreme Court these days, it is unfashionable to second-guess states' fealty to federal law without real proof that they are ignoring it. As the Court declared in Alden v. Maine: "We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that 'this Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.'" Accordingly, without proof that a state has "systematic[ally]" …

Copyright Misuse And Modified Copyleft: New Solutions To The Challenges Of Internet Standardization, Chip Patterson

Michigan Law Review

The Internet is a truly global community within which myriad economic, social and technological forces interplay to cause its standardization. Much of the competition in the industry has revolved around which product will become the standard for a given market sector. Some markets have seen victors; for example, TCP/IP is the Internet communication protocol, MP3 appears to be dominating music compression, and Microsoft Corporation's Windows ("Windows") is clearly the standard operating system. Similarly, the Internet must adopt a standard for web browsing and searching, for email, and for web programming. In many cases, the competition for this standard will be …

A Theory Of Insurance Policy Interpretation, Kenneth S. Abraham

Michigan Law Review

The first principle of insurance law is captured by the maxim contra proferentem, which directs that ambiguities in a contract be interpreted "against the drafter," who is almost always the insurer. Yet given the modern recognition that language is an inherently imperfect instrument for communicating meaning, insurance policy provisions are in a sense always ambiguous. Moreover, in addition to contra proferentem, policyholders may invoke such allied doctrines as waiver, estoppel, and the rule that the reasonable expectations of the insured should be honored even if those expectations are unambiguously contradicted by fine-print provisions in the policy. Contra proferentem and these …

Mutuality Of Estoppel: A Question, Stephen Millman, David Gruber

Michigan Law Review

A recent Note, "A Probabilistic Analysis of the Doctrine of Mutuality of Collateral Estoppel, " made excellent use of elementary probability theory to demonstrate the extent to which relaxation of the mutuality requirement will increase the damages suffered by a defendant subject to multiple suits in which there is common issue (or correspondingly, will decrease the total recovery of a plaintiff who has several suits litigating a common issue against different defendants). Although the author made a number of useful points concerning the case law and the arguments advanced by proponents on each side of the controversy, the central thesis …

Reclamation Of Goods From A Fradulent Buyer, Robert Braucher

Michigan Law Review

Sections 2-702(2) and (3) of the Uniform Commercial Code (Code), defining the right of a seller to reclaim goods from an insolvent buyer, have for years been the subject of controversy. The sponsors of the Code have stood firm on the basic policy of these sections for more than twenty-five years, but, in its 1966 Official Recommendations for Amendment of the Uniform Commercial Code, the Permanent Editorial Board includes an amendment striking the words "or lien creditor" from section 2-702(3). That change has already been made in six states: California, Illinois, Maine, New Jersey, New Mexico, and New York. In …

Use Of Record Of Criminal Conviction In Subsequent Civil Action Arising From The Same Facts As The Prosecution, Michigan Law Review

Michigan Law Review

The overwhelming majority of courts considering the issue without the aid of pertinent legislation have held that a record of a prior criminal conviction may not be used against a convicted person in subsequent civil proceedings arising from the same facts as the criminal prosecution but to which the state is not a party. It is admissible neither as evidence of the facts underlying it, nor as the basis of an estoppel preventing the convicted party from relitigating those issues which must have been decided against him in the criminal trial for the judge or jury to have found him …

Cooper: State Administrative Law, Dan M. Byrd Jr.

Michigan Law Review

A Review of State Administrative Law, 2 vols. By Frank E. Cooper

The Constitution And Preclusion/Res Judicata, Allan D. Vestal

Michigan Law Review

The interrelation of lawsuits is one of the most troublesome, yet least commented upon, areas of the law. The ramifications are great; related lawsuits may be pending concurrently, either brought by the same individual-repetitive litigation--or brought by different parties-reactive litigation. Such lawsuits may occur serially over a period of time. The courts are then faced with problems which have traditionally been discussed in terms of res judicata, bar, merger, or estoppel. It is impossible to cover the whole area or even a sizable part of it in a single article, but it is feasible to examine one facet which certainly …

Trust Administration - Apportionment And Other Remedies Of An Income Beneficiary When The Trustee's Retention Of Unproductive Property Causes A Loss Or Termination Of Income, Bruce M. Stiglitz S. Ed.

Michigan Law Review

The purpose of this comment is to examine apportionment and other remedies of a beneficiary who has been deprived of his income by the retention of unproductive property, and especially to examine the problems which arise when the trustee's retention of such assets constitutes a breach of trust.

Priorities: Ii, Edgar N. Durfee

Michigan Law Review

This is the second part of "Priorities" (also known as "Little Nemo") which was taken from Professor Durfee's teaching materials. The first part was published in the February issue-which was dedicated to the memory of Professor Durfee.

Contracts - Statute Of Frauds - Effect On Oral Exclusive Distributorship Agreement For Indefinite Duration, Robert Segar

Michigan Law Review

In 1935 plaintiff brewery made an oral agreement of no definite duration by which defendant and his father, as partners, were given the exclusive right to distribute its beer. Defendant, changing from one partnership to another, complied with various wishes of the plaintiff such as furnishing warehousing, purchasing uniform amounts of beer throughout the year although seasonal demands varied, dissolving the second partnership in 1950, discontinuing distribution of a rival beer in 1954, and hiring a sales promotion man in June 1954; the latter three actions taken on plaintiff's assurance that he would continue defendant's distributorship. In July 1954 plaintiff, …

Priorities, Edgar N. Durfee

Michigan Law Review

Among those of Edgar Durfee's colleagues who were familiar with this paper it came to be known as "Little Nemo," for a reason that will become apparent to the reader. It is taken from his mimeographed Cases on Security, third edition, published in 1938. Possibly it was published earlier but there is a gap in the evidence. It did not appear in the first edition published in 1934 but no copy of the second edition has been located. In a few places its age shows, for example in the reference to Walsh as the author of the most recent …

Bills And Notes - Indorsements - Liability Of Drawee Bank On Forged Indorsement, John P. Williams S.Ed.

Michigan Law Review

H applied to the plaintiff credit corporation for a loan to finance a new auto dealership. In exchange for a note and contract purportedly signed by H and his wife W, plaintiff issued a check payable to H and W. The check, after being indorsed, was paid by defendant, the drawee bank. The proceeds of the loan were used as planned, but the business subsequently failed at which time it was discovered that H had forged W's signature on the note, the contract and the check. Plaintiff sued to compel restoration of the amount of the check …

Conflict Of Laws - Estoppel - Extra-Territorial Effect Of Probate Decree, Thomas A. Hoya S.Ed.

Michigan Law Review

Testator, domiciled in California, by his will created a charitable trust of his residuary estate which included lands located in North Dakota. Under California law, the charitable bequest was valid to the extent of only one-third of the residuary estate. Upon distribution of the trust estate by the California court, the charity appeared and received its one-third of the entire residuary property. The trustee then filed with the North Dakota court, asking that the North Dakota land be distributed in accord with the California decree. Since there was no limitation on the validity of the charitable bequest in North Dakota, …

Municipal Corporations - Contracts - Ratification And Estoppel In Contracts Made By Unauthorized Agent, Edward M. Heppenstall

Michigan Law Review

Plaintiff's infant daughter, admitted to Newark City Hospital as an emergency case, received hospitalization and medical treatment worth $1,190 during her seventy-day period of confinement. The medical director of the hospital had made an agreement with the Hospital Service Plan of New Jersey which provided that regardless of the amount or quality of the hospitalization required, payment of the flat sum of $100 for any subscriber-patient would constitute payment in full to the city. The city accepted the $100 check paid by the Plan as billed by the hospital for the care of the child. In order to facilitate settlement …

The Practical Location Of Boundaries, Olin L. Browder Jr.

Michigan Law Review

Early in the development of the common law of conveyancing, as everyone knows, the practice of physically consummating a conveyance by acts on the land itself was abandoned in favor of the more flexible and convenient devices authorized or required by the Statute of Uses and the Statute of Frauds. Now we do it all on paper and consummate the transaction at any convenient place. One of the requirements of this process is to make clear what land is being conveyed. So we describe the land on paper in one of the several ways which have been approved for this …

Attorney And Client - Scope Of Attorney's Authority - Client Bound By Wrongful Settlement Of Claim, Robert M. Vorsanger

Michigan Law Review

Plaintiff hired an attorney to prosecute a claim for damages resulting from the alleged negligence of defendant, a chiropodist, in the treatment of plaintiff's wife. Three years after the institution of the suit plaintiff discovered that his attorney had agreed with defendant to settle the suit and had forged plaintiff's name to a release and to a bank draft given by defendant in settlement of the claim. Plaintiff immediately instituted action to have the settlement stipulation deleted from the record and to have the case reinstated for hearing. On appeal from the trial court's decision for plaintiff, held, reversed. …

Criminal Law - Due Process - Public Policy As Valid Grounds For Denying Recovery Of Proceeds Of Illegal Act, John Morrow S.Ed.

Michigan Law Review

Plaintiff collected a $10 fee from a number of persons for the privilege of attending a farm outing and photographing female models, some of whom posed in the nude. The sheriff arrested all concerned. Plaintiff pleaded guilty to a charge of outraging public decency and was fined $50. The others were found guilty of disorderly conduct. Plaintiff brought a trover action against the sheriff who had kept the money ($149) which the plaintiff had collected, but the trial court dismissed the action. On appeal to the New York Court of Appeals, held, affirmed, one judge dissenting. Plaintiff could not …

Partnerships - Partnership By Estoppel - Proof Of Reliance By Creditor Dealing With Persons In Belief Of Partnership, Allen Dewey

Michigan Law Review

Plaintiff telephone company sued to collect for local and long distance telephone service rendered through telephone number 196W. Defendant Walter R. Lehmann denied liability on the ground that the service was not furnished to him but to his son, Wayne R. Lehmann. The telephone was located in Wayne's business headquarters, a building on defendant's farm, over which hung a sign "W. R. Lehmann & Son-Dairy Cattle." Plaintiff carried the telephone in Wayne's .name for fifteen months, until, at Wayne's request, the listing was changed to W.R. Lehmann & Son. The change was made for the 1953 and 1954 directories, and …

Partnership - Partnership By Estoppel -Application To Tort Actions, Thomas Erickson S.Ed.

Michigan Law Review

Plaintiff-motorist brought action against defendant who, it was alleged, owned a truck which was driven into the rear of the plaintiff's automobile. Defendant had arranged to take title to the truck from his son. The transfer was to be effective three days before the accident but was not in fact completed until after the accident. Defendant also had taken out insurance on the truck and had joined with his son in purchasing it and in taking out an ash-hauling license in which business the truck was used. Other trucks previously used in the business by defendant's son had been carried …

Corporations - Ultra Vires Act - Effectiveness Of Action By Informal Meeting Of Board Of Directors, Guy Maxfield

Michigan Law Review

Defendant insurance company issued a policy on the life of the president of plaintiff corporation with the corporation named as beneficiary. The president, his wife in the capacity of secretary-treasurer, and son were the sole stockholders of the corporation. Pursuant to a divorce agreement between the president and his wife, a part of the insurance policy was assigned to the wife at an informal board of directors' meeting with the concurrence of the wife and son. The president died and his stock was sold to the present stockholders. The corporation then sued the insurance company to collect the full amount …

Estoppel And Crown Privilege In English Administrative Law, Bernard Schwartz

Michigan Law Review

Perhaps the most anachronistic doctrine in Anglo-American public law is that of sovereign immunity. Under it, the State is placed in a privileged position of immunity from the principles of law which are binding upon the ordinary citizen, unless it expressly consents to be bound by such principles. In Anglo-American law the infallibility attributed to the King in the days when he was personally sovereign has been more recently recognized in the State, which the Crown now merely personifies. Thus, even today, and even in the American democracy, the basic principle of public law is that the King can do …

Sales - Transfer Of Title - Effect Of Motor Vehicle Act, Charles G. Williamson, Jr. S.Ed.

Michigan Law Review

Plaintiffs, wholesale automobile dealers in New Mexico and Colorado, each sold a used car to a Utah dealer. The wholesalers forwarded drafts, with certificates of title attached, for payment by the dealer. The dealer sold the cars from his lot without ever having paid the drafts, and, consequently, without ever having. obtained the foreign title certificates. Plaintiffs brought replevin against the purchasers of the autos and recovered judgments. On appeal, held, reversed. The wholesalers knew that the purchaser was a used car dealer. They had transferred more than mere possession and clothed him with apparent ownership. Therefore, under the …

Corporations - Stockholders - Cancellation Of Stock Issues Without Consideration, James W. Beatty S.Ed.

Michigan Law Review

At the beginning of 1936, plaintiff, a Wisconsin corporation, had an earned surplus deficit of $106,134.89, and a surplus of $685,642.89 created by a reduction of capital stock. Net earnings for 1936 were $121,515.96, none of which were distributed as dividends. An undistributed profits surtax was assessed on the entire current net earnings. Plaintiff sued for a partial refund under an amendment providing retroactive relief for corporations which were prohibited by law from paying dividends during the existence of a deficit in accumulated earnings at the time when the tax was paid. The district court denied relief. On appeal, held …

Agency-Imputation Of Agent's Knowledge To Principal-Insurance Contracts, Robert B. Krueger S.Ed.

Michigan Law Review

Defendant insurance company's soliciting agent falsified applicant's warranted answers to material questions in an application for automobile casualty insurance. The applicant signed, not knowing of the nature of the answers. On the basis of these answers, defendant issued a casualty policy on applicant's automobile, containing a clause prohibiting waiver or estoppel as to any of the terms of the contract because of the agent's knowledge. As a result of a subsequent accident, plaintiffs recovered judgments against applicant which applicant failed to satisfy. In an action by plaintiffs against defendant, on supplemental petition, defendant admitted recovery against applicant, but claimed no …

Civil Procedure-Judgments--Plea Of Guilty In Criminal Action As Basis For Collateral Estoppel In Later Civil Action, Wilber M. Brucker, Jr. S.Ed.

Michigan Law Review

Defendant had pleaded guilty to specific criminal charges under the False Claims Act. The United States then sued defendant to recover civil damages under the Contract Settlement Act on the same fact situation. When defendant attempted to contest the verity of facts to which he had pleaded guilty in the earlier criminal action, the United States attempted to have defendant estopped as a matter of res judicata, asking the court for a directed verdict as to the issues decided in the criminal action. Held, directed verdict as to those issues to which the defendant had pleaded guilty would be …

Adoption - Right Of Inheritance In Absence Of Legal Adoption-Specific Performance Of Contract To Adopt And Other Remedies, James C. Mordy

Michigan Law Review

Adoption was unknown at common law. Modern statutes permitting adoption are largely derived from Roman ideas, which were introduced into this country first through the civil law of Louisiana and later by statutes, beginning with Massachusetts in 1851.

Under the English common law, the only persons capable of inheriting property were blood relations of the deceased. On the other hand, most modern adoption statutes permit inheritance by adopted children equally with natural children. Adoption being purely statutory, the early cases denied the right of inheritance by supposedly adopted children when the statute was not strictly followed. Though still purporting to …

Res Judicata-Use Defensively Of Former Judgment By One Not A Party Or In Privity With A Party To Former Action, Richard H. Conn

Michigan Law Review

Plaintiff sued defendant in a federal district court to foreclose a mortgage lien alleged to exist on defendant's land in consequence of a loan by plaintiff to defendant's predecessor in title. Defendant's land was but a part of the tract originally encumbered. In a prior action in the state court, plaintiff had sought foreclosure of the same mortgage against the holder of another parcel of the mortgaged land on the precise grounds now asserted against defendant. In that action it was held that the entire mortgage had already been discharged. Defendant moved for summary judgment, contending that the former decision …

Equity-Laches And Estoppel As Barring Equitable Relief In Protection Of An Easement, Chester Lloyd Jones S.Ed.

Michigan Law Review

Grantors had conveyed to plaintiff a certain lot in a subdivision with a provision "leaving a street sixty feet wide between Block Five . . . and the . . . tract herein conveyed." A plat of the addition, showing the street, had also been filed. Subsequently, the grantors conveyed to the defendant the land theretofore comprising the street. Construction on that land was begun and seventy-two days later when the building was 40 per cent completed and represented an expenditure of $2,000, plaintiff filed a suit to restrain interference with his easement, serving notice thereof on the defendant the …

Taxation-Mitigation Of The Statute Of Limitation And The Doctrine Of Recoupment, Eugene H. Lattin S.Ed.

Michigan Law Review

Excise taxes on the sale of batteries were illegally collected from taxpayer from April, 1919 to April, 1926. In 1926 taxpayer filed a claim for refund for taxes paid between 1922 and 1926. Refund for the payments made earlier was barred by the statute of limitations. In 1935 the refund was received, and it was taxed as income by the commissioner. In a suit by the taxpayer to recover payment of the assessment, the lower court permitted recoupment, against the income tax deficiency, of the amount of excise taxes illegally collected between 1919 and 1922. Held, reversed. The recoupment …