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A Tax Formula To Restore The Historical Effects Of The Antitrust Treble Damage Provisions (An Open Letter To The Senate Antitrust And Monopoly Committee), L. Hart Wright

Michigan Law Review

Following the well-publicized criminal conviction of a major segment of our electrical equipment industry for conspiring to fix and maintain prices, terms, and conditions of sales made to both private industry and the government, almost 2,000 private antitrust treble damage suits were brought against those convicted. In July, 1964, when at least 1,500 of these suits were still pending, the Commissioner of Internal Revenue publicly announced that amounts paid or "incurred" by the defendants in those actions to private plaintiffs, either pursuant to judgment or by way of settlement, together with legal expenses pertaining thereto, were deductible as ordinary and …

Motor Vehicles--Legislation--The Michigan Motor Vehicle Accident Claims Act, Michigan Law Review

Michigan Law Review

With the adoption of the Michigan Act, Michigan has become the fifth state to adopt a comprehensive program utilizing both the insurance and the fund approaches. Moreover, the Michigan Act, apparently inspired by its Ontario prototype, contains some elements which were previously unknown in United States legislation. Consequently, it may prove enlightening to examine the scope and purpose of the Michigan Act, and to compare it with similar legislation in other states.

The Effect Of Misunderstanding On Contract Formation And Reformation Under The Restatement Of Contracts Second, George E. Palmer

Michigan Law Review

The presence of misunderstanding at the time of an apparent agreement creates difficult problems in the law of contract formation and equally difficult problems when the apparent agreement is in ·writing and reformation is sought. The rules formulated in the original Restatement of Contracts are unsatisfactory in both areas. The preparation of the Restatement Second, which is now under way for contracts, includes changes in the rules of contract formation but the changes emerging are no more satisfactory than the original rules. The current version of the Restatement Second, contained in Tentative Draft No. 1, accepts the …

Habeas Corpus--Custody And Release From Custody Requirements Of Habeas Corpus--Viability Of Mcnally V. Hill In The Moden Context, Michigan Law Review

Michigan Law Review

Section 2241 of Title 28 of the United States Code requires that a petitioner for a writ of habeas corpus be "in custody." As a corollary of the "custody" requirement, the common law tradition required that the effect of the writ must be the petitioner's "release from custody.'' Because the United States Constitution and the federal habeas corpus statutes guarantee the availability of the writ in general terms, it is to the common law that the courts have consistently turned for the definition of these terms and for the restrictive effect of these requirements on the availability of the writ …

The Longshoremen's And Harbor Workers' Compensation Act Of 1927: Half-Way Protection For The Stevedore And The Longshoreman, Robert E. Gilbert

Michigan Law Review

The law relating to longshoremen's remedies abounds with surprising anomalies, hyper-technical distinctions, and bits and pieces of judicial legislation. This situation stems largely from deficiencies in the Longshoremen's and Harbor Workers' Compensation Act of 1927, an inherently inadequate statute greatly distorted by recent judicial interpretation. This Comment undertakes an examination of the act's most salient shortcomings with a view to suggesting possible guidelines for what is believed to be necessary corrective legislation.

Divestiture Of Illegally Held Assets: Observations On Its Scope, Objective, And Limitations, William T. Kerr

Michigan Law Review

"Divestiture has been called the most important of antitrust remedies. It is simple, relatively easy to administer, and sure." This observation was made with reference to an order requiring divestiture of illegally held stock. In the context of the divestiture of illegally held assets, however, the statement is an oversimplification of myriad complex problems. This Comment will examine the difficulties encountered in eliminating the anticompetitive effects of a fully consummated merger found to have violated section 7 of the Clayton Act. No attempt will be made to assess the substantive doctrine upon which the violation in any instance was based, …

Government And The Consumer, Richard J. Barber

Michigan Law Review

This article takes up four major topics. First, the principal characteristics of governmental action with respect to consumer protection are reviewed, with emphasis on developments during the past thirty years. Second, the traditional pleas for consumer protection are examined with a view toward determining the inadequacies in governmental action. Third, the problems of the consumer are studied in the context of oligopolistic industrial markets in which nonprice competition accentuates the place of advertising and severely restricts the dissemination of factual information that is essential to enlightened purchase decisions. Fourth, the ingredients of a meaningful consumer protection program are outlined and …

Foreword, Frank R. Kennedy

Michigan Law Review

As will be evident by the time this symposium on consumer protection appears in print, not all the proposals that have been made on behalf of the consumer will pass this year; some, perhaps, will never be enacted in anything like their present form. However, both opponents and proponents of this spate of legislative proposals should recognize the timeliness and importance of the discussions presented in this issue of the Michigan Law Review.

Federal Trade Commission Regulation Of Advertising, Earl W. Kintner

Michigan Law Review

The success of an economic democracy, no less than that of a political democracy, depends upon informed, intelligent choice. Thus, the widespread dissemination of information with respect to alternatives is imperative; otherwise, choices would be made in a vacuum and would become meaningless, if not plainly capricious. However, there is no paucity of information in our contemporary society; the so-called "mass media" ensure that. Indeed, modern man can hardly escape, even if he should so desire, the constant bombardment of information from television, radio, newspapers, billboards, and other sources.

Products Liability--Some Observations About Allocation Of Risks, Page Keeton

Michigan Law Review

Virtually all of the activities of mankind involve the use of some product. Consequently, nearly all losses in the nature of physical damage to persons or things, and a great deal of the economic losses flowing from inferior or unfit products, are factually caused by characteristics or conditions of products, or at least occur during the use of products. Therefore, when fault, in the sense in which fault has been used in the Anglo-American law of torts (a usage which frequently results in the imposition of liability without personal fault), is abandoned as a basis for shifting or allocating losses, …

Products Liability--The Expansion Of Fraud, Negligence, And Strict Tort Liability, John A. Sebert Jr.

Michigan Law Review

While judicial acceptance of this concept of strict tort liability has been proceeding apace, far less dramatic but equally significant developments have been occurring with respect to both negligence and fraud liability. The possibility of recovering for a seller's misrepresentations concerning his product has been enhanced by a plaintiff-oriented judicial redefinition of two elements of a cause of action for fraud: defendant's knowledge of the falsity of his representation and plaintiff's reliance upon the deception. At the same time, negligence liability has often come to resemble liability without fault as courts continue to deemphasize, as a prerequisite to the application …

Products Liability Based Upon Violation Of Statutory Standards, Joseph H. Ballway Jr.

Michigan Law Review

Regulatory enactments controlling production and distribution can give rise in several different ways to civil liability on behalf of persons injured by non-conforming merchandise. For instance, if a statute codifies existing common-law rules of negligence, its effect is merely to place the weight of legislative authority behind ordinary negligence principles. Since an injured party's recovery under such a provision still depends largely upon his proving in the traditional manner that a defendant failed to exercise due care, this kind of statute merits no further discussion. On the other hand, if particular legislation expressly states that a violator may be subjected …

The Relative Priority Of Small Business Administration Liens: An Unreasonable Extension Of Federal Preference?, Ronald L. Olson

Michigan Law Review

During the past three decades, the priority of the federal government as against state and private creditors competing for the assets of debtors has been greatly strengthened. In terms of relative growth, the expansion of federal priority has been comparable to the increased commercial involvement of the United States. In more recent years, Congress and the judiciary have recognized that this increased governmental commercial activity necessitates a restriction in sovereign prerogatives. However, contrary to this general trend toward the contraction of sovereign prerogatives and for reasons appearing unsatisfactory to most commentators, the "sovereign prerogative" of priority to the assets of …

The Accumulated Earnings Tax And The Problem Of Diversification, James C. Westin

Michigan Law Review

While diversification is now considered a legitimate corporate need authorizing the accumulation of earnings and profits, the present standards of the Regulations under section 531, which, in general, test the reasonableness of corporate accumulations by the requirement of "specific, definite, and feasible plans" for use of the funds, seem too restrictive in terms of the problems of diversification as outlined above. In light of this criticism and of recent developments, the purposes of this comment are (1) to indicate the basic principles of section 531, an understanding of which is vital to corporations anticipating retention of funds for the purpose …

Uniform Crime Reports, Peter P. Lejins

Michigan Law Review

The Uniform Crime Reports are-both nationally and internationally- an extremely important statistical series, and an invitation by the Michigan Law Review to comment on this annual compilation is very much appreciated: This writer has felt for some time that the recent frequent statements on the Uniform Crime Reports in the daily press and some professional journals have created a considerable amount of unnecessary confusion. This opportunity to analyze the issues involved is therefore most gratifying.

A Critical View Of The Uniform Crime Reports, Sophia M. Robison

Michigan Law Review

No one would deny that the FBI performs a vital function in investigating, identifying, and tracking down suspects who may endanger the life, liberty, and property of Americans. However, this writer feels that the Uniform Crime Reports published by the FBI should be subjected to a very critical analysis. Of primary concern are the indiscriminate acceptance of the official data by legislators and social science investigators and the doubtful inferences which a frightened public draws from news releases proclaiming that "the U.S. is sitting on a seething volcano of crime."

Federal Trade Commission Proceedings And Section 5 Of The Clayton Act: Application And Implications, Michigan Law Review

Michigan Law Review

Although the primary responsibility for the enforcement of the antitrust laws falls upon governmental agencies, Congress has recognized the effectiveness of the private suit for damages as a deterrent and has sought to encourage such actions by providing for the recovery of treble damages by an injured party. To assist the private litigant, whose problem of proof is formidable, Congress enacted section 5(a) of the Clayton Act, which allows the introduction, as prima facie evidence of an antitrust violation, of a prior judgment or decree obtained by the Government. As a further aid to private litigants, section 5(b) provides for …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

The Equal Protection Clause And Imprisonment Of The Indigent For Nonpayment Of Fines, Michigan Law Review

Michigan Law Review

The practice of imprisonment for failure to pay a fine levied for a criminal violation originated in twelfth-century England; its subsequent unanimous acceptance in the United States is manifested in the provisions in the statutes of every state and of the federal government authorizing imprisonment for nonpayment of fines. A few states not only commit the defendant to jail for nonpayment of the fine, but impose hard labor as well. Some states, however, have mitigated to a degree the harshness of the practice. For example, Arizona restricts the total period of confinement for the crime and the default of the …

Linkletter, Shott, And The Retroactivity Problem In Escobedo, J. Alan Galbraith

Michigan Law Review

Prior to the 1964 Supreme Court Term, decisions promulgating new constitutional rules were applied retroactively as a matter of course to final convictions. While dissents occasionally criticized the Court's failure to discuss the retroactive impact of a new constitutional rule, the potential effect upon final convictions of any single rule was not sufficiently acute to justify a departure from the normal grant of retroactivity. But the Court's decision in Mapp v. Ohio; which abruptly overturned Wolf v. Colorado and brought into doubt final state convictions resting upon illegally seized evidence admitted in reliance upon Wolf, caused courts and …

The Public Housing Administration And Discrimination In Federally Assisted Low-Rent Housing, Jordan D. Luttrell

Michigan Law Review

The Public Housing Administration is the federal agency primarily responsible for the administration of the federally assisted low-rent housing program. Since the expense of constructing low-rent housing unassisted by federal funds is prohibitive for state or local governments, this program accounts for practically all low-rent housing in the United States. Consequently, PHA has exercised, and continues to exercise, substantial influence on the development of the nation's low-rent housing.

Determination Of Federal Jurisdictional Amount In Suits On Unliquidated Claims, Michigan Law Review

Michigan Law Review

Hoping to keep federal court dockets free of petty claims and thereby to reduce the delay in bringing to trial controversies involving more substantial sums, Congress has given United States district courts jurisdiction of many civil actions arising under the Constitution, laws, or treaties of the United States and most disputes between parties of diverse citizenship only when the alleged right forming the basis of a claimant's cause of action can be valued at more than ten thousand dollars. The value of a particular claim is determined by reference to those portions of its proponent's pleading which tend to support …

Periodical Index, Michigan Law Review

Michigan Law Review

Subject Index of Articles and Comments Appearing in Leading Law Reviews

The Maritime Boundaries Of The States, Avrum M. Gross

Michigan Law Review

It has long been recognized that the boundaries of coastal states encompass certain adjoining maritime areas. The settled existence of those boundaries, however, stands in marked contrast to the confusion which has surrounded their location. The geographic extent of the waters to which state jurisdiction extends has remained largely undetermined.

The recent development of refined methods for extracting minerals from offshore areas has translated questions of state jurisdiction into issues of substantial economic significance. In this regard, an increasing number of disputes have arisen between the states and the federal government, primarily over rights to offshore oil deposits. The …

Bootstraps And Capital Gain--A Participant's View Of Commissioner V. Clay Brown, William H. Kinsey

Michigan Law Review

A closely held corporation may be sold in a variety of ways. At one end of the spectrum is an all-cash sale. In such a transaction, the seller receives the purchase price and has no further concern with the economic well-being of the business. The difficulty with this method, of course, is finding a purchaser with sufficient cash who is willing to pay a fair price.

At the other end of the spectrum is a full-fledged bootstrap sale, where there is no down payment other than from the underlying assets of the sold corporation, and the purchaser's obligation to pay …

Extraterritorial Application Of Penal Legislation, B. J. George Jr.

Michigan Law Review

One of the most difficult words in the legal lexicon to delineate is the term "jurisdiction"; it is equally difficult to relate this term to the concept of "venue." The term "jurisdiction" is constantly invoked by courts in a variety of contexts, some relating to geography, some to governmental and judicial structure, some to legislative or judicial power, some to persons, and some to procedures. Thus, it is difficult to discern a common thread of meaning or a consistent pattern of application from the cases in which the word appears.

Boycotts And Restrictive Marketing Arrangements, Richard M. Buxbaum

Michigan Law Review

It is currently a common if still relatively unheralded practice for a "fired" dealer to bring an antitrust action against his former manufacturer-supplier (and perhaps other dealers), alleging that his termination was the result of a boycott. Boycotts-collective efforts to obtain the exclusion of a party from a market-are illegal per se under section 1 of the Sherman Act. Thus, questions concerning the justification for the boycott or the significance of the offender's market position do not arise.

Discrimination In The Hiring And Assignment Of Teachers In Public School Systems, Michigan Law Review

Michigan Law Review

In the Brown v. Board of Education decisions of 1954 and 1955, the United States Supreme Court made it clear that separate public school facilities for pupils of different races are inherently unequal and constitute a denial of the equal protection of the laws. While it was not altogether clear from the language of the opinions whether segregated faculties in public schools are also unconstitutional, subsequent lower court decisions have held that racial discrimination in the selection and assignment of teachers is forbidden.

"Primarily For Sale" In I.R.C Sections 1221 And 1231 Held To Mean "Principally For Sale" Rather Than "Substantially For Sale" --Malat V. Riddell (U.S. 1966), Michigan Law Review

Michigan Law Review

Sections 1221 and 1231 of the Internal Revenue Code disqualify from capital gains treatment profits derived from the sale or exchange of property "held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business." In deciding whether these sections deny capital gains treatment to profits realized by real estate dealers from the sale or exchange of land, the circuit courts, while examining similar facts in relation to the same criteria, have reached divergent conclusions. Two recent decisions, Municipal Bond Corp. v. Commissioner and Malat v. Riddell, illustrate these discordant results. In Municipal …

American Bar Association Section Of Antitrust Law: Jury Instructions In Criminal Antitrust Cases, Ralph M. Carson

Michigan Law Review

A Review of Jury Instructions in Criminal Antitrust Cases by The American Bar Association Section of Antitrust Law