Law Commons^™

Vol. 8, No. 9, December 11, 1958, University Of Michigan Law School

Res Gestae

•The 34th Annual Campbell Competition Opens Monday, December 15 •The Docket •Blair Benjamin and Bill Tell, Michigan's Regional Winning Moot Court Team •The Lawyers Club Christmas Musicale Will be Held Sunday, December 14 From 4-6 •The SBA Wives Literary Group Will Meet Wednesday, December 17 at 8:00 p.m. •The Placement Office •A Faculty Debate Sponsored by the Lawyers Club Will be Held Wednesday •Fraternities •The Faculty Curriculum Committee Announces Two Changes in the Requirement Provisions •At the Flicks

Vol. 8, No. 8, December 4, 1958, University Of Michigan Law School

Res Gestae

•The 2nd Issue of the Michigan Law Review Will Make its Appearance Early this Month •SBA News •64 States, Territories and Countries are Represented in the Student Body this Year •Executive Council News •New Criteria are Needed for Judging Criminal Cases Where Insanity is an Issue •Fraternities •Annual Christmas Concert •At the Flicks

Constitutional Law - Right To Jury Trial In Indirect Criminal Contempts In Federal Courts, Denis T. Rice S.Ed.

Michigan Law Review

Should constitutional provisions for jury trial apply to contempts committed outside the physical presence of a federal court? The United States Supreme Court, in the recent case of Green v. United States, reviewed this long disputed question. The case involved two Communist Party leaders who had been convicted of Smith Act violations and then had "jumped bail" when they disappeared in violation of surrender orders requiring their presence in court for sentencing. After four and a half years as fugitives they surrendered in 1956 and were charged with criminal contempt of court. Following a so-called "summary" hearing (without the …

Sales - Credit Sales - Application Of Usury Statute, Jerome S. Traum S.Ed.

Michigan Law Review

Plaintiff bought a tractor from defendant's agent for $2950 and received a trade-in allowance of $1180, leaving an unpaid balance of $1770. Defendant's agent agreed to arrange for a loan from defendant for the balance of the purchase price, without stating a time price for the tractor different from the cash price previously discussed. The loan was made, and plaintiff signed a note and chattel mortgage in the amount of $2161.84, payable in two annual installments. The $391.84 excess over the balance due exceeded the maximum legal rate of interest allowed by Nebraska's Installment Loan Act. Plaintiff later sued in …

"Overruling" Opinions In The Supreme Court, Albert P. Blaustein, Andrew H. Field

Michigan Law Review

Despite its vaunted reputation for rectitude, the United States Supreme Court has been the first to deny its own judicial infallibility. For in at least ninety decisions, dating as far back as 1810 and as recent as its 1956 Term, the Supreme Court has made public confession of error by overruling its previous determinations.

This is a study of those ninety decisions-a statistical accounting of overruling cases and cases overruled, and a listing of the judges who agreed and disagreed with what was said and done. And this is a study of the "right to be wrong" -an inquiry into …

Labor Law - Hot Cargo Clauses No Defense To Secondary Boycotts, Joel D. Tauber S.Ed.

Michigan Law Review

In August 1954 the Sand Door & Plywood Company sold a general contractor, through a millwork contractor, certain non-union-made Paine Lumber Company doors. The union notified its members at the construction site that the doors should not be hung because of the "hot cargo" · clause in their union contract. After negotiations between Sand Door and the union failed, Sand Door filed charges alleging secondary boycott action by the union in violation of section 8(b)(4)(A) of ·the amended National Labor Relations Act. A Board order was issued and enforced by the court of appeals. On certiorari to the United States …

Personal Property - Gifts - Delivery To Third Party, Thomas A. Dieterich S.Ed.

Michigan Law Review

A husband changed the beneficiary of his life insurance policy from his wife to his mother during a temporary separation and failed to restore his wife as beneficiary after reconciliation. Subsequent to his death the mother, in the presence· of the wife, signed a memorandum "waiving" her policy rights "to" the wife and handed the writing to the insurer's district manager. Before payment of the proceeds the mother discovered that the wife was the beneficiary of another policy and attempted to revoke the memorandum. In insurer's interpleader action, a gift to the wife was recognized. On appeal, held, affirmed. …

Unfair Competition - False Advertising - Scope Of Federal Jurisdiction Under Section 43(A) Of Lanham Act, John D. Kelly S.Ed.

Michigan Law Review

Plaintiff brought suit in a state court seeking injunctive relief, alleging unfair competition by defendant in manufacturing and selling slavish copies of plaintiff's swimsuits. One of the six causes of action alleged in the complaint was based on a violation of section 43 (a) of the Lanham Act. Defendant had the suit removed to federal district court. On motion to remand, held, denied. The alleged violation of section 43 (a) created a federal right of action within the original jurisdiction of the federal courts. Catalina, Inc. v. Gem Swimwear, Inc., (S.D. N.Y. 1958) 162 F. Supp. 911.

Future Interests - Rule Against Perpetuities - Recent Statutory Amendment In New York, Paul K. Gaston S.Ed.

Michigan Law Review

After 128 years of criticism and confusion and enormous amounts of litigation, New York has amended its statutory rule against perpetuities. The old rule provided that the absolute power of alienation could not be suspended for longer, than "two lives in being" at the creation of the estate plus a minority exception in some cases. Under the new rule the absolute power of alienation can be suspended for a period measured by any number of "lives in being" at the creation of the estate so long as they are not "so designated or so numerous as to make proof of …

Criminal Procedure On The American Frontier: A Study Of The Statutes And Court Records Of Michigan Territory 1805-1825, William Wirt Blume

Michigan Law Review

The area north and east of Lake Michigan, organized in 1805 as Michigan Territory, was first organized in 1796 as Wayne County of the Northwest Territory. In 1800 the western half of the county, and in 1803 the eastern half, became parts of Indiana Territory, and so remained until July 1805. In 1818 Michigan Territory was expanded westward so as to include all of the area north of Illinois to the Mississippi River.

Civil Procedure - Jurisdiction - Service Of Process On Foreign Television Corporation, Arnold Henson S.Ed.

Michigan Law Review

Defendant, a West Virginia corporation, operated a television station in Huntington, West Virginia. Its telecasts regularly reached into Boyd County, Kentucky, where part of its customary viewing audience was located. During a twelve-month period in 1954-1955 the corporation derived $71,310.30 in advertising revenue from Kentucky firms, although the contracts for this advertising were made outside Kentucky. In the course of a newscast defendant published an alleged libel against plaintiff, and suit was brought in Boyd County Court. Substituted service of process was made on the Secretary of State in accordance with the Kentucky "doing business" statute, and defendant then removed …

Corporations - Derivative Suits - Stockholder Demand As Condition Precedent, W. Stanley Walch S.Ed.

Michigan Law Review

A derivative suit alleging directors' fraud was brought by a minority shareholder, but there was no allegation of a demand for relief having been made on the corporation's stockholders prior to bringing the suit. The plaintiff did allege, however, that it was useless and impossible for him to make demand on the stockholders because the complaint charged directors' fraud which was a void act beyond the power of the stockholders to ratify, and secondly because it would be highly unreasonable to require plaintiff to make a demand for relief on more than 100,000 stockholders of the corporation. Delaware Chancery Rule …

Federal Taxation - Transferee Liability Of Insurance Beneficiary, John Gelder S.Ed.

Michigan Law Review

Nearly six years after taxpayer died income tax deficiencies were determined against his estate. Since his estate was insolvent the Commissioner sought to impose transferee liability under section 311 of the 1939 code (now I.R.C. section 6901) on plaintiff, taxpayer's widow, as beneficiary of" her husband's life insurance. The Tax Court, applying federal law, held plaintiff liable for the entire deficiency since the proceeds received by her exceeded that amount. The court of appeals, applying state law, reversed and ruled that the beneficiary was not a "transferee" within the meaning of section 311 even to the extent of the cash …

Insurance - Federal Regulation - Authority Of Federal Trade Commission To Regulate False Advertising By Insurance Companies As Affected By The Mccarran-Ferguson Act, Charles C. Moore S.Ed.

Michigan Law Review

Petitioner, the FTC, issued cease and desist orders prohibiting respondent health and accident insurance companies, doing business in interstate commerce, from disseminating allegedly false and deceptive advertising through the medium of local agents. These orders, issued pursuant to the FTC act, sought to proscribe such activity both in states that had statutes prohibiting unfair and deceptive practices and in states that did not. The Courts of Appeals for the Fifth and Sixth Circuits concluded that the FTC had no authority to regulate such advertising in states which had prohibitory legislation. On certiorari to the United States Supreme Court, held, …

Loss & Cowett: Blue Sky Law, Homer D. Crotty

Michigan Law Review

A Review of Blue Sky Law. By Louis Loss and Edward W. Cowett.

Clark & Sohn: World Peace Through World Law, Harding Bancroft

Michigan Law Review

A Review of World Peace Through World Law. By Grenville Clark and Louis B. Sohn.

Restitution - Availabilty As An Alternative Remedy Where Plaintiff Has Fully Performed A Contract To Provide Goods Or Services, Jerome K. Walsh Jr.

Michigan Law Review

It is hornbook law that restitution is sometimes available as an alternative remedy to a party who has suffered a breach of contract after having conferred a benefit on the defaulting party. It is equally clear, however, that in many cases where a benefit has been conferred, the plaintiff may not elect to sue for the value of his performance but is left to his action for damages on the contract. The cases which are concerned with one or the other of the above rules constitute a large portion of the area of the law called Restitution, and no attempt …

Vol. 8, No. 7, November 20, 1958, University Of Michigan Law School

Res Gestae

•Michigan's Moot Court Team Won a Berth in the National Quarter-Finals •"Wigge and Robbe" Traditional Fall Formal, Will not be Held This Year •The SBA Board Unanimously Agreed to Discontinue Publication for the Quad •"La Inquisicion," the All Law School Dance Sponsored by the Law Club Will be Held Saturday, November 22 at 9 p.m. •Professor Joiner Announced the Topic of the Annual Summer Institute to be Held Here Early Next June •Fraternities •At the Flicks

Vol. 8, No. 6, November 13, 1958, University Of Michigan Law School

Res Gestae

•Case Club Announces the Competitors in the 34th Annual Campbell Competition •The Lawyers Club Dance "La Inquisicion" will be Held November 22 •Student Bar Association Announces the Appointment of Dave Lynch as Head of the Film Committee •A Statistical Survey of the Student Body Indicates that Only 4 of the 49 States are not Represented •The SBA Legal Aid Society Meets Tonight in the Law Club Lounge at 6:30 •National Moot Court Regionals Will be Held in Detroit November 14 and 15 •Fraternities •A Lecture on Recent Developments in Constitutional Law for Seniors •Circuit Court Docket • At the Flicks

Vol. 8, No. 5, November 6, 1958, University Of Michigan Law School

Res Gestae

•Michigan Law Graduates Outstanding in Ohio Bar Examination Last July •240 Students are Now Taking the Problems and Research Course •Final Enrollment Statistics Released by the Assistant Dean Roy Proffitt •Fraternities •SBA Executive Council Speakers Committee has Arranged for Neil Staebler •At the Flicks

Conflict Of Laws - Status Of Foreign Statute - Non-Recognition Of Support Obligation, David C. Berg S.Ed.

Michigan Law Review

The State of California, Department of Mental Hygiene, brought suit in Texas against defendant, a California resident until his removal to Texas in 1954, to recover money expended by the state in support of defendant's mother, an incompetent inmate of a California state institution since 1944. California law requires an adult son to contribute to his parents' support while a similar provision of the Texas law imposes such an obligation on a parent but not on a child. In accordance with the applicable California statute of limitations, the state sued for the monthly payments which had accrued during the four-year …

Habeas Corpus - Jurisdiction - Exhaustion Of State Remedies As Prerequisite To Federal Relief, John D. Kelly S.Ed.

Michigan Law Review

Petitioner, a prisoner of the Commonwealth of Pennsylvania convicted of armed robbery in 1947, filed a petition for a writ of habeas corpus in federal district court after several efforts to secure the writ in a state court had been unsuccessful. Jurisdiction was based on exhaustion of available state remedies. The petition alleged that the Commonwealth had violated petitioner's rights under the due process clause of the Fourteenth Amendment by denying him the right to be represented by counsel at his trial. The Commonwealth moved to dismiss on the ground that the petition on its face showed that state remedies …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Workmen's Compensation - Recreation Injury, David Shute S.Ed.

Michigan Law Review

Decedent was employed by an automobile dealer as assistant manager of the service department. The dealer's custom was to hold a monthly business meeting of the staff of major departments after working hours and without extra compensation. One such meeting was scheduled to be held at a city hotel. At the suggestion of an employee that it would be more pleasant to hold the meeting at a nearby lake, the employer changed the meeting place to a summer cottage owned by him. It was understood by those attending that there would be an opportunity for swimming and boating. Decedent was …

Federal Procedure - Judgments - Finality Of Judgment Required To Begin Running Of Time For Appeal, Arnold Henson S.Ed.

Michigan Law Review

Plaintiff brought action in a federal district court to recover taxes alleged to have been illegally assessed, and for interest thereon. On April 14, 1955, after hearing plaintiff's motion for summary judgment, the district judge filed an opinion stating that the motion was granted, and finding the amount of the taxes paid, but not finding the date of payment or the amount of interest due. The clerk noted: "April 14, 1955 ... Decision rendered on motion for summary judgment. Motion granted. See opinion on file." On May 24, 1955, plaintiff submitted a formal judgment which was signed and filed by …

Wills - Testamentary Additions To The Corpus Of An Inter Vivos Trust-Recent Judicial And Legislative Developments, Richard I. Singer S.Ed.

Michigan Law Review

The shape of the law relating to testamentary additions to the corpus of an inter vivos trust was outlined in 1951 by Professor George E. Palmer in an article entitled "Testamentary Dispositions to the Trustee of an Inter Vivos Trust." It is the purpose of this comment to consider recent developments in this area. A generalized formulation of the problem to be dealt with is-may a valid bequest be made to the trustee of an inter vivos trust without setting out the terms of the trust in the will?

Civil Procedure - Trial Practice - Consecutive Motions For Directed Verdict, John Gelder S.Ed.

Michigan Law Review

Plaintiff brought an action to recover arrearages in rent. At the conclusion of the evidence, plaintiff and then defendant made motions for a directed verdict. The trial court held that where both parties make a motion to direct a verdict, it is the duty of the court to decide the case on its merits and accordingly found in favor of the plaintiff. Defendant immediately moved to amend his motion to attach a reservation which would have the issues submitted to a jury, but the amendment was disallowed. The appellate court reversed the judgment, finding prejudice to defendant since the trial …

Constitutional Law - State Action - Imposing Criminal Penalties To Enforce Private Discrimination, Melvyn I. Mozinski S.Ed.

Michigan Law Review

Defendants, Negroes, entered a section of a private restaurant designated to be for "White" patrons only. Although they were denied service, they refused to comply with the proprietor's request to leave. Defendants were subsequently arrested by a police officer after declining his offer not to arrest if they would depart, and were tried for violation of the state's criminal trespass statutes. They were found guilty of a misdemeanor. On appeal, held, sustained. Defendants have no constitutionally protected right not to be discriminated against by an operator of a private enterprise. State v. Clyburn, 247 N.C. 455, 101 S.E. …

The Legal Nature Of Collective Bargaining Agreements, Archibald Cox

Michigan Law Review

One reflecting upon the legal nature of a collective bargaining agreement can hardly avoid beginning with the thought that the institution has flourished outside of the courts and administrative agencies and often in the face of legal interference. The law had fallen into disrepute in the world of labor relations because it failed to meet the needs of men. Collective bargaining agreements were negotiated and administered without regard to conventional legal sanctions. Grievance procedures and arbitration evolved into an intricate and highly organized, private judicature. Many experienced and perceptive observers argued that the conventional sanctions for commercial contracts should not …

Scientific Investigation And Defendants' Rights, B. J. George Jr.

Michigan Law Review

Advances in science, medicine and industry have made much of the world a more pleasant place in which to live. In general more men are living a physically more satisfying life in more comfortable surroundings than preceding generations. But with this has come a parallel increase in criminality to the point that the term "crime wave" is heard with increasing frequency. Many crimes are facilitated in their commission by adaption or application of new scientific discoveries by criminal elements. A natural consequence is that already overburdened police departments turn as quickly as is financially possible to new scientific techniques in …