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Michigan Law Review

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Article V: The Comatose Article Of Our Living Constitution?, Robert G. Dixon Jr. Mar 1968

Article V: The Comatose Article Of Our Living Constitution?, Robert G. Dixon Jr.

Michigan Law Review

Capacity for steady--even startling-development and relative incapacity for formal change, are twin features of American constitutionalism often noticed but seldom analyzed conjointly. Even the most stalwart supporters of the status quo do not want an unamendable Constitution, but disagreement as to how change should be effected, and the scope of it, runs deep. Indeed, this is the central problem of Marbury v. Madison. That case was the effective innovator of judicial review, our "real" system for developmental constitutionalism. Interestingly, it also was one of the quite rare instances when a seemingly simple constitutional text was at issue (scope of Supreme …


The Dirksen Amendment And The Article V Convention Process, Arthur Earl Bonfield Mar 1968

The Dirksen Amendment And The Article V Convention Process, Arthur Earl Bonfield

Michigan Law Review

This article will concentrate on the legal issues facing Congress in the current effort to call a constitutional convention. Because all of the previous amendments to the Constitution were proposed to the states by a two-thirds vote of both Houses of Congress, the issues raised in the present situation have never been resolved. The appropriate course of action for the national legislature is especially in doubt. An attempt will therefore be made here to focus on proper decision-making by Congress in resolving these constitutional issues. The role of the judiciary will be considered only incidentally, since, as will be seen, …


American Bar Association: American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Pleas Of Guilty (Tentative Draft), Donald J. Newman Mar 1968

American Bar Association: American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Pleas Of Guilty (Tentative Draft), Donald J. Newman

Michigan Law Review

A Review of American Bar Association Project on Minimum Standards for Criminal Justice: Standards Relating to Pleas of Guilty (Tentative Draft)


Friendly & Goldfarb: Crime An Publicity: The Impact Of News On The Administration Of Justice, Francis C. Sullivan Mar 1968

Friendly & Goldfarb: Crime An Publicity: The Impact Of News On The Administration Of Justice, Francis C. Sullivan

Michigan Law Review

A Review of Crime and Publicity: The Impact of News on the Administration of Justice by Alfred Friendly and Ronald L. Goldfarb


Proposed Legislation To Implement The Convention Method Of Amending The Constitution, Sam J. Ervin Jr. Mar 1968

Proposed Legislation To Implement The Convention Method Of Amending The Constitution, Sam J. Ervin Jr.

Michigan Law Review

Article V of the Constitution of the United States provides that constitutional amendments may be proposed in either of two ways--by two-thirds of both houses of the Congress or by a convention called by the Congress in response to the applications of two-thirds of the state legislatures. Although the framers of the Constitution evidently contemplated that the two methods of initiating amendments would operate as parallel procedures, neither superior to the other, this has not been the case historically. Each of the twenty-five constitutional amendments ratified to date was proposed by the Congress under the first alternative. As a result, …


The Supreme Court And The People, Everett Mckinley Dirksen Mar 1968

The Supreme Court And The People, Everett Mckinley Dirksen

Michigan Law Review

There is only one circumstance, as I read the Constitution, which authorizes the federal government to intrude or interfere with the governmental structure of a state. That would occur under the provisions of section 4 of article IV, which, in pertinent part, state: "The United States shall guarantee to every State in this Union a Republican form of Government .... " This was the question, if indeed there was a federal question, to be determined in the earlier Baker v. Carr and the reapportionment cases. To rely on the fourteenth amendment for authority to establish by judicial decree a new …


Copyright Pre-Emption And Character Values: The Paladin Case As An Extension Of Sears And Compco, Michigan Law Review Mar 1968

Copyright Pre-Emption And Character Values: The Paladin Case As An Extension Of Sears And Compco, Michigan Law Review

Michigan Law Review

Much of the confusion over copyright pre-emption that has followed in the wake of Sears and Compco may be due to a fundamental difference between the present patent and copyright acts. Unlike the patent law that was at issue in Sears and Compco, the federal Copyright Act provides that the states may in limited circumstances protect literary property through the doctrine of common-law copyright. Under section 2 of the Act, a state may prevent copying of a work so long as it remains "unpublished." An alternative ground of decision in Paladin was that, regardless of preemption under Sears and …


Westin: Privacy And Freedom, Stanley K. Laughlin Jr. Mar 1968

Westin: Privacy And Freedom, Stanley K. Laughlin Jr.

Michigan Law Review

A Review of Privacy and Freedom by Alan F. Westin


Federal Courts--Discovery--Stay Of Discovery In Civil Court To Protect Proceedings In Concurrent Criminal Action--The Pattern Of Remedies, Michigan Law Review Feb 1968

Federal Courts--Discovery--Stay Of Discovery In Civil Court To Protect Proceedings In Concurrent Criminal Action--The Pattern Of Remedies, Michigan Law Review

Michigan Law Review

The federal criminal discovery rules were a carefully weighed compromise between the parties' needs for information and the defendant's need for protection from inquisatorial investigation. This balance may be upset when the more liberal discovery rules in a concurrent, related civil action permit information to be obtained which is not discoverable under the criminal rules. Two recent cases, United States v. Simon and United States v. American Radiator &- Standard Sanitary Corp., illustrate the difficulty of protecting the integrity of the criminal discovery rules in such a situation.


Criminal Procedure--Evidence--Composite Drawing Not Producible Under Jencks Act--United States V. Zurita, Michigan Law Review Feb 1968

Criminal Procedure--Evidence--Composite Drawing Not Producible Under Jencks Act--United States V. Zurita, Michigan Law Review

Michigan Law Review

Following a bank robbery, the bank manager and his wife provided descriptions enabling an agent of the Federal Bureau of Investigation to compose drawings of the robbers which were then "approved" by each of these witnesses as being substantially accurate. At the defendant's trial four years later, he was identified by the manager and his wife as one of the robbers. The defendant, in an attempt to impeach their testimony, requested that the government be compelled under the Jencks Act to produce the original composite drawings. The trial court denied this request, stating that the production of these drawings was …


Disposition Of The Irresponsible: Protection Following Commitment, Travis H. Lewin Feb 1968

Disposition Of The Irresponsible: Protection Following Commitment, Travis H. Lewin

Michigan Law Review

Each year more of our fellow citizens are involuntarily committed to a mental institution of one sort or another than are incarcerated for the commission of a crime. To those committed, the walls and barred windows of the hospital, as well as the treatment and mode of living, are probably not significantly different from those of a prison. This is particularly the case with those confined for treatment by court order or by some special statutory procedure following acquittal of a crime on grounds of insanity. Yet these mentally ill, even after perpetrating what would otherwise have been a criminal …


Income Tax: Corporations--Incorporated Professional Service Organization Taxable As A Corporation; Kintner Regulations Held Invalid--Empey V. United States, Michigan Law Review Feb 1968

Income Tax: Corporations--Incorporated Professional Service Organization Taxable As A Corporation; Kintner Regulations Held Invalid--Empey V. United States, Michigan Law Review

Michigan Law Review

Lawrence G. Empey, a lawyer, was employed by the Drexler and Wald Professional Company, an association of attorneys that had incorporated in 1961 pursuant to the Colorado Corporation Code and rule 265 of the Colorado Rules of Civil Procedure. Empey began his employment with Drexler and Wald in March 1965, and in November of the same year he acquired ten shares (ten per cent) of the outstanding capital stock of the corporation. On his 1965 federal income tax return, he reported income consisting of his salary as an employee of the company for ten months and ten per cent of …


Israels And Guttman: Modern Securities Transfers, Berto Rogers Feb 1968

Israels And Guttman: Modern Securities Transfers, Berto Rogers

Michigan Law Review

A Review of Modern Securities Transfers by Carolos L. Israels and Egon Guttman


The "Warren Court" And The Antitrust Laws: Of Economics, Populism, And Cynicism, Thomas E. Kauper Jan 1968

The "Warren Court" And The Antitrust Laws: Of Economics, Populism, And Cynicism, Thomas E. Kauper

Michigan Law Review

No one could quarrel with the simple assertion that the so-called "Warren Court" has had a significant, if indeed not extraordinary, impact on the development of the antitrust laws. It could hardly have been otherwise. The fifteen years since 1953 represent virtually one-fourth of the total history of the Clayton and Federal Trade Commission Acts, and one fifth of the time which has elapsed since passage of the Sherman Act. Every Supreme Court decision under the 1950 amendments to section 7 of the Clayton Act, the so-called antimerger law, has come after the accession of Chief Justice Warren to the …


Slumlordism As A Tort--A Dissenting View, Walter J. Blum, Allison Dunham Jan 1968

Slumlordism As A Tort--A Dissenting View, Walter J. Blum, Allison Dunham

Michigan Law Review

The persistence of substandard housing in urban centers stands as a challenge to law. There is a pressing need to re-examine whether prevailing legal doctrines are adequate for dealing with the problem and to suggest new doctrines where the old are found wanting. To their great credit, Joseph L. Sax and Fred J. Hiestand in their article "Slumlordism as a Tort" face up to these tasks boldly and vigorously. They conclude that, under existing conditions, it is imprudent to rely on public authorities to enforce housing codes and it is unlikely that legislatures will place sufficient enforcement powers in private …


The Uniform Probate Code And The International Will, William F. Fratcher Jan 1968

The Uniform Probate Code And The International Will, William F. Fratcher

Michigan Law Review

Emily Graham left her assets in England when she married a French naval officer and went to France to live with him. After her husband died, Emily announced that she was returning to England for the rest of her life and bundled her children and baggage aboard a channel ferry. Before the ferry cleared French waters she became ill and was taken ashore at another French port. While waiting impatiently to recover sufficiently for a final return to England, Emily executed a will of her English assets in the form prescribed by English law, that is, in writing, signed by …


(F) Reorganizations And Proposed Alternate Routes For Post-Reorganization Net Operating Loss Carrybacks, Michigan Law Review Jan 1968

(F) Reorganizations And Proposed Alternate Routes For Post-Reorganization Net Operating Loss Carrybacks, Michigan Law Review

Michigan Law Review

Section 368(a)(l)(F) of the Internal Revenue Code (Code) defines the least complex of all corporate reorganizations-commonly known as the (F) reorganization-as "a mere change in identity, form, or place of organization, however effected." Since 1921, when the (F) reorganization first appeared in a Revenue Act, a significant amount of judicial gloss has been appended to this simple definition. To qualify as an (F) reorganization, a reorganization must result in neither a change of shareholders nor a shift in proprietary interest, and there must be a continuation of the business in the pre-organization fields of activity, using essentially the same operating …


Bankruptcy--Stay Of Bankruptcy Proceedings Denied To Creditor Seeking Lien On Exempt Property--Harris V. Hoffman, Michigan Law Review Jan 1968

Bankruptcy--Stay Of Bankruptcy Proceedings Denied To Creditor Seeking Lien On Exempt Property--Harris V. Hoffman, Michigan Law Review

Michigan Law Review

The appellants, husband and wife, executed a promissory note to the appellee-bank. Thereafter, they purchased real property which they occupied as a homestead. Acting pursuant to an Iowa statute which subjects a homestead to debts contracted before the homestead was acquired, the bank commenced a suit on the note in state court, but this proceeding was stayed when appellants filed a voluntary petition in bankruptcy. After the trustee in bankruptcy set the homestead apart as property exempt under Iowa law, the bank sought a stay of discharge in bankruptcy for a reasonable period of time so that it could obtain …


Income Tax--Listing Abandoned Residence For Sale And Not For Rent Considered Sufficient To Convert To "Property Held For The Production Of Income"--Hulet P. Smith, Michigan Law Review Jan 1968

Income Tax--Listing Abandoned Residence For Sale And Not For Rent Considered Sufficient To Convert To "Property Held For The Production Of Income"--Hulet P. Smith, Michigan Law Review

Michigan Law Review

Since 1941, Hulet Smith and his wife had lived in a large house in Arcadia, California, where Smith had been actively engaged in a real estate loan business. In 1959, Smith decided to retire and move to Pebble Beach, a distance of about 400 miles from Arcadia. He purchased a parcel of land in Pebble Beach and built a large expensive home, with the avowed intention of making this his permanent personal residence. In 1961, after severing all business and social connections in the vicinity of their old residence, Smith and his wife moved into their new home, taking virtually …


Advisory Committee On Fair Trial And Free Press: American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Fair Trial And Free Press (Tentative Draft), George Edwards, Robert M. Cipes Jan 1968

Advisory Committee On Fair Trial And Free Press: American Bar Association Project On Minimum Standards For Criminal Justice: Standards Relating To Fair Trial And Free Press (Tentative Draft), George Edwards, Robert M. Cipes

Michigan Law Review

A Review of American Bar Association Project on Minimum Standards for Criminal Justice: Standards Relating to Fair Trial and Free Press (Tentative Draft) Recommended by the Advisory Committee on Fair Trial and Free Press


Periodical Index, Michigan Law Review Jan 1968

Periodical Index, Michigan Law Review

Michigan Law Review

Subject Index of Articles, Comments, Notes, and Recent Developments Appearing in Leading Law Reviews


Antitrust's Newest Quagmire: The Noerr-Pennington Defense, L. Barry Costilo Dec 1967

Antitrust's Newest Quagmire: The Noerr-Pennington Defense, L. Barry Costilo

Michigan Law Review

In recent years two relatively unheralded but sweeping antitrust decisions by the Supreme Court have given rise to ramifications far beyond their facts. Unless limited, they may be interpreted by business planners as providing safe havens in many areas of conduct where corporations and trade associations have previously feared to tread. The cases are Eastern Railroad Presidents Corp. v. Noerr Motor Freight, Inc. and United Mine Workers of America v. Pennington. The broad issue they raise is the extent to which business can concertedly seek to use the mechanism of government for the purpose of restraining trade without violating …


Jurisdiction--Foreign Patents--Jurisdiction Over Foreign Patent Claims, Michigan Law Review Dec 1967

Jurisdiction--Foreign Patents--Jurisdiction Over Foreign Patent Claims, Michigan Law Review

Michigan Law Review

The territorial limitations of sovereignty have been held to preclude a country from giving extraterritorial effect to its patent laws, and, therefore, a patent confers rights which are protected only within the boundaries of the issuing country. Thus, United States and foreign patents, even when granted for the same invention, create separate and distinct rights which may differ in scope and effect in the respective countries. Concomitantly, courts have also held that a foreign patent confers upon its owner no rights or protection with respect to acts done in the United States.


Legal Aid--Lay Control And Organizational Complexity Render Oeo Legal Service Program Unacceptable To New York Court--In Re Community Action For Legal Services, Inc., Michigan Law Review Dec 1967

Legal Aid--Lay Control And Organizational Complexity Render Oeo Legal Service Program Unacceptable To New York Court--In Re Community Action For Legal Services, Inc., Michigan Law Review

Michigan Law Review

The Office of Economic Opportunity (OEO) and the New York City Council Against Poverty approved the organization and the OEO funding of three legal service corporations as part of a comprehensive program to provide legal assistance to New York City's poor. According to the plan, the first corporation, Community Action for Legal Services, Inc. (CALS), was to approve proposed plans for setting up and operating neighborhood law offices with OEO funds and then to supervise and coordinate the agencies that sought to put those plans into operation. These agencies, operating as delegates of CALS, and under subcontracts with it, were …


Substantive Interests And The Jurisdiction Of State Courts, Paul D. Carrington, James A. Martin Dec 1967

Substantive Interests And The Jurisdiction Of State Courts, Paul D. Carrington, James A. Martin

Michigan Law Review

Pennoyer indeed is dead. The primitive ritual of service of process could not survive as a general solution to the problem of state power over individuals. Committed as we are to the idea that the judicial power should be exercised in a manner that is responsive to the common welfare, we could not suffer the limits of power to be determined irrationally by the random success of process servers. Offering only the virtues of simplicity and economy, the ritualistic method had to yield in order to make the judicial power a sharper and more effective tool with which to pursue …


Income Tax--Recovered Property Previously Deducted Included In Gross Income In Year Of Recovery--Alice Phelan Sullivan Corp. V. United States, Michigan Law Review Dec 1967

Income Tax--Recovered Property Previously Deducted Included In Gross Income In Year Of Recovery--Alice Phelan Sullivan Corp. V. United States, Michigan Law Review

Michigan Law Review

In 1989 and 1940 the corporate taxpayer claimed as charitable deductions the value of two parcels of realty which it had donated to a charitable organization subject to the condition that they be used solely for religious or educational purposes. Having decided not to use the gifts in the manner specified, the donee reconveyed them to the taxpayer in 1957. The taxpayer failed to reflect this recovery in its gross income for that year. The Commissioner of Internal Revenue, however, determined that under section 111 of the 1954 Internal Revenue Code (Code) the taxpayer's gross income reported in its 1957 …


Public Control Of Land Subdivision In Michigan: Description And Critique, Roger A. Cunningham Nov 1967

Public Control Of Land Subdivision In Michigan: Description And Critique, Roger A. Cunningham

Michigan Law Review

Michigan seems to be unique in having three separate subdivision control statutes. The Plat Act of 1929, like the Subdivision Control Act of 1967 which will soon replace it, is largely mandatory, prescribing standards and procedures required in all cases of land subdivision (as defined in the statute), whether the municipality in which the land is located has a planning commission or not. The Municipal Planning Act, on the other hand, is simply an enabling act, permissive both with respect to establishment of a planning commission and with respect to the exercise by that commission, once established, of the power …


The Antidumping Act And The Future Of East-West Trade, Peter Buck Feller Nov 1967

The Antidumping Act And The Future Of East-West Trade, Peter Buck Feller

Michigan Law Review

Because of the peculiarities of price formation in Communist countries, both with regard to export commodities and those intended for domestic consumption, the applicability of traditional antidumping concepts to communist price discrimination, and the usefulness of the Antidumping Act of 1921 in coping with it, are questions which should be examined and resolved before moves toward freer trade between East and West reach full stride. The essence of the problem was captured in a 1963 statement by the then Senator Humphrey: "The present act is ineffective in preventing dumping from communist countries, which can control their home prices by state …


Evidence--Medical Treatises To Be Admitted As Direct Evidence In Wisconsin--Lewandowski V. Preferred Risk Mutual Ins. Co., Michigan Law Review Nov 1967

Evidence--Medical Treatises To Be Admitted As Direct Evidence In Wisconsin--Lewandowski V. Preferred Risk Mutual Ins. Co., Michigan Law Review

Michigan Law Review

Defendant's attorney in a personal injury action sought on cross-examination to impeach plaintiff's physician regarding his determination of the degree of plaintiff's disability by referring to the medical standards set forth in the American Medical Association's Guide to the Evaluation of Permanent Impairment--The Extremities and Back. Pointing to the physician's testimony that he had not relied on the Guide in making his evaluation, the trial court sustained plaintiff's objection that such cross-examination was not permissible. On appeal, the Wisconsin Supreme Court held that the trial court was correct in sustaining the objection in accordance with the established rule that it …


Antitrust-Limitation Of Actions-Clayton Act Statute Of Limitations Tolled On Treble Damage Suits Against Non-Government Defendant Co-Conspirators-- Michigan V. Morton Salt Co., Michigan Law Review Jun 1967

Antitrust-Limitation Of Actions-Clayton Act Statute Of Limitations Tolled On Treble Damage Suits Against Non-Government Defendant Co-Conspirators-- Michigan V. Morton Salt Co., Michigan Law Review

Michigan Law Review

Plaintiffs, several states and smaller governmental units, filed related antitrust treble damage claims against ten rock salt companies that had allegedly conspired to fix prices. These private actions were instituted subsequent to civil and criminal antitrust proceedings brought by the federal government in which four of the ten companies had been named as defendants and five designated as co-conspirators but not prosecuted. Section 5(b) of the Clayton Act provides that when such actions are brought by the government, "the running of the statute of limitations in respect of every private right of action arising under said laws and based in …