Law Commons^™

H. L. A. Hart On Legal And Moral Obligation, Michigan Law Review

Michigan Law Review

One of the central problems in both moral and legal philosophy has been to offer a satisfactory analysis of the concept of obligation. In ordinary language the word "obligation" is used in several different contexts. It may refer to moral obligation (e.g., "I am morally obligated to keep my promise to help my uncle with his knitting"), legal obligation (e.g., "I am legally obligated to report as income on my tax return whatever funds I embezzle from my employer"), political obligation (e.g., "I am politically obligated to vote"), or social obligation (e.g., …

Conjugal Visitation Rights And The Appropriate Standard Of Judicial Review For Prison Regulations, Michigan Law Review

Michigan Law Review

Conjugal visitation rights allow prison inmates and spouses to visit privately and have sexual relations. A number of countries, particularly in Latin America, permit conjugal visits. Although in the United States only Mississippi and California currently permit conjugal visitation, the experience of these two states shows that such programs are workable. Conjugal visitation has met with varied reaction in the literature, but persuasive arguments have been made that it would offer potential psychological benefits to the prisoner, reduce prison homosexuality, and allow the inmate to preserve his or her marital ties. Nevertheless, the reaction of penal administrators in this country …

Blocking Payment On A Certified, Cashier's, Or Bank Check, Michigan Law Review

Michigan Law Review

When disputes arise between buyers and sellers over completed commercial transactions and payment has been delivered to the seller in the form of a negotiable instrument, a dissatisfied buyer may seek to suspend the instrument's payment obligation. By blocking payment the buyer strengthens his bargaining position and prevents the seller from dissipating the proceeds of the sale before the buyer can establish the merit of his claim. Blocking payment forces the seller to enforce the commercial agreement through court action or satisfy the buyer's grievances.

Competition And Regulation In The Stock Markets, Robert Pozen

Michigan Law Review

Part I of this article suggests that the courts have not satisfactorily resolved the tension between competition and regulation in the stock markets, and that the proposed legislation would in fact aggravate that tension. Part II uses an economic model of stock transactions to derive an alternative approach for reconciling competitive and regulatory considerations. Part III applies this approach to several key governmental decisions in the transition from fixed commission rates to the central market system.

The Compulsory Process Clause, Peter Westen

Michigan Law Review

Part I of this article traces the history of compulsory process, from its origin in the English transition from an inquisitional to an adversary system of procedure to its eventual adoption in the American Bill of Rights. Part II examines the Supreme Court's seminal decision in Washington v. Texas, which recognized after a century and a half of silence that the compulsory process clause was designed to enable the defendant not only to produce witnesses, but to put them on the stand and have them heard. Part III studies the implications of compulsory process for the defendant's case, from the …

Reaffirming The Freedom Of The Press: Another Look At Miami Herald Publishing Co. V. Tornillo, Michigan Law Review

Michigan Law Review

This note does not take issue with the result of the decision. Rather, the argument herein is that the access theory deserves more complete consideration. The Court used first amendment precedents to strike down the reply statute without exploring whether the rationale behind these precedents mandated such a result. In an effort to justify more fully the Court's conclusion, this note will first present the underlying rationale of the pro-access argument. It will then analyze the constitutionality of statutes that would implement a right of access. Finally, the note will discuss several practical difficulties that access legislation would present.

A Bibliography Of The Published Works Of Paul G. Kauper, Michigan Law Review

Michigan Law Review

A Bibliography of the Published Works of Paul G. Kauper

Paul G. Kauper: As Remembered By His Students, John M. Nannes, Jerome B. Libin, Eugene Gressman

Michigan Law Review

A Tribute to Paul G. Kauper

A Tribute To Paul Kauper, Robben W. Fleming

Michigan Law Review

A Tribute to Paul G. Kauper

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 …

Paul G. Kauper, Memorial Resolution By The University Of Michigan Law Faculty Concerning Paul G. Kauper, Michigan Law Review

Michigan Law Review

A Tribute to Paul G. Kauper

Labor Relations Law In The Public Sector, Arvid Anderson

Michigan Law Review

A Review of Labor Relations Law in the Public Sector by Russell A. Smith, Harry T. Edwards, and R. Theodore Clark, Jr.

Trusts And The Doctrine Of Estates, Olin L. Browder Jr.

Michigan Law Review

The "doctrine of estates" is the common law system for the classification of divided ownership. Its primary purpose is to differentiate the legal consequences of the variety of concurrent, present, and future estates, but it also serves to differentiate the dispositive language required to create or transfer such estates. The doctrine of estates, therefore, embraces a sizable part of the law of conveyancing, including the large body of doctrine known as rules of construction.

In modern practice the classification and construction of present and future interests usually occurs with respect to beneficial interests in trust. It has not been sufficiently …

The Constitutionality Of Laws Forbidding Private Homosexual Conduct, Michigan Law Review

Michigan Law Review

The laws of forty-three states and the District of Columbia impose criminal penalties on consenting adults who engage in private homosexual conduct. Most of these laws are sodomy statutes, which also prohibit oral and anal intercourse between heterosexuals and sexual acts with animals. Two states have statutes explicitly limited to homosexual conduct. These statutes also prohibit nonconsensual homosexual activity and homosexual acts involving a minor, but this Note addresses only prohibitions on private consensual adult homosexual conduct.

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.

En Banc Review In Federal Circuit Courts: A Reassessment, Michigan Law Review

Michigan Law Review

This Note will examine the validity of the traditional justifications for en bane review, discuss the recent circuit court attempts to modify the procedure, and suggest possible changes that might make more effective use of it.

Go East, Young Man, Earl Latham

Michigan Law Review

A Review of Go East, Young Man by William O. Douglas

Limiting The Plaintiff Class: Rule 10b-5 And The Federal Securities Code, Michigan Law Review

Michigan Law Review

The Penn Central litigation, involving a large, publicly held corporation, illustrates the need to examine the reach of the federal antifraud provisions. This Note discusses the problem of defining the plaintiff class when the number of past and present shareholders who are potential plaintiffs is very great. Attention will center on the methods courts have used to limit the class of investors compensable under rule 10b-5. Also, the effect that enactment of present drafts of the American Law lnstitute's proposed Federal Securities Code would have on the composition of the plaintiff class in analogous actions will be discussed. Finally, the …

Some Reflections On The State Taxation Of A Nonresident's Personal Income, Walter Hellerstein

Michigan Law Review

My purpose here is fourfold: first, to inquire into the theoretical and constitutional underpinning of Vermont's taxing scheme against the background of the case that challenged the validity of the levy; second, to analyze the impact of related legislation on the principles upon which the basic Vermont formula was constructed; third, to determine whether there are reasons of law or policy why other states should not adopt schemes similar to Vermont's; and, fourth, to consider in light of the foregoing some of the recurring problems concerning the treatment of nonresidents under state income tax statutes.

The Evolution Of Law In The Barrios Of Caracas, Robert C. Means

Michigan Law Review

A Review of The Evolution of Law in the Barrios of Caracas by Kenneth L. Karst, Murray L. Schwartz, and Audrey J. Schwartz

The Tentative Settlement Class And Class Action Suits Under Title Vii Of The Civil Rights Act, Michigan Law Review

Michigan Law Review

This Note will examine the potential utility of a tentative settlement class (TSC) in suits initiated under title VII of the Civil Rights Act of 1964. The advantages and disadvantages of the TSC will be discussed in the context of analyzing whether the use of a TSC is valid under rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. The discussion of the merits of the TSC in the title VII context will illustrate the problems inherent in the use of a tentative class for encouraging settlements of any class action.

Lawyer's Lawyer: The Life Of John W. Davis, James W. Ely Jr.

Michigan Law Review

A Review of Lawyer's Lawyer: The Life of John W. Davis by William H. Harbaugh

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 …

A Sixth Amendment Right To Counsel Under Article 15 Of The Uniform Code Of Military Justice, Michigan Law Review

Michigan Law Review

Article 15 of the Uniform Code of Military Justice (UCMJ) enables a commanding officer to sentence a service member who has committed a minor infraction to thirty days of correctional custody. The article 15 proceeding offers few procedural safeguards; among the protections lacking is the right to counsel. This Note will consider whether the failure of the military to provide counsel at an article 15 proceeding is consistent with the sixth amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The Note first will discuss …

The Sale Of Human Body Parts, Michigan Law Review

Michigan Law Review

Section I of this Note briefly surveys the state of the transplant art; section II outlines the inadequacy of the present human parts supply system; section III discusses some of the alternatives advanced as solutions to the shortage; section IV discusses the market system alternative; section V considers existing legal doctrines that may impede the establishment of such a system; and section VI reviews tort and tax law problems associated with the market concept.

Basic Corporate Taxation, Stefan F. Tucker

Michigan Law Review

A Review of Basic Corporate Taxation, 2d Ed. by Douglas A. Kahn

Discriminatory Membership Policies In Federally Chartered Nonprofit Corporations, Michigan Law Review

Michigan Law Review

Since 1791 the United States has created federal corporations by specific acts of Congress. These corporations fall into three general types, including corporations organized in the District of Columbia, corporations that carry out a federal governmental or public function, and private nonprofit corporations that undertake educational, charitable, historical, cultural or similar purposes. About fifty groups comprise the third category, including the American National Red Cross, the Girl Scouts of America, the Boy Scouts of America, the United States Olympic Committee, the American Legion, the Veterans of Foreign Wars of the United States (VFW), and the Little League.

Recently, the discriminatory …

The Future Of Imprisonment: Toward A Punitive Philosophy, Norval Morris

Michigan Law Review

Proper use of imprisonment as a penal sanction is of primary philosophical and practical importance to the future of society. With the increasing vulnerability of our social organization and the growing complexity and interdependence of governmental structures, reassessment of appropriate limits on the power that society should exercise over its members becomes increasingly important. Perhaps if the "prison problem" is solved, many of the uneasy tensions between freedom and power in postindustrial society will diminish. The effort made here will, I hope, contribute to the solution of the "prison problem" by offering a new model of imprisonment that recognizes fundamental …

United States V. Falk: Developments In The Defense Of Discriminatory Prosecution, Michigan Law Review

Michigan Law Review

This Note will first review the origin and development of the defense of discriminatory prosecution and will then analyze the situation in United States v. Falk. The Note concludes that Falk is significant in that it continues the device of shifting the burden to the prosecution once a prima facie case of discriminatory enforcement has been established. More importantly, by implicitly eliminating the necessity of showing purposeful discrimination, Falk represents an important and praiseworthy development.

The Role Of The Michigan Attorney General In Consumer And Environmental Protection, Michigan Law Review

Michigan Law Review

In an effort to clarify the role of the attorney general as public representative, this Note will examine the functioning of the office of the Michigan attorney general. After an analysis of the nature and extent of the attorney general's powers and of his current utilization of those powers, several proposals to increase his effectiveness will be discussed.