Digital Commons Network^™

The Supreme Court - October 1957 Term, Bernard Schwartz

Michigan Law Review

One of the fascinating new games being played by some law professors and others," declared an American Bar Association Journal editorial almost a decade ago, "is to compute the 'box scores' of the votes of justices of the Supreme Court in various important lines of cases."' The present article is not intended as an addition to the work of those engaged in this sort of "numbers game." However useful the statistical method may be in providing the empirical data upon which legal analysis can be based, it should be almost self-evident that its value as the key to the working …

Municipal Corporations - Zoning - Disqualification Of Councilman For Personal Interest, Joel N. Simon

Michigan Law Review

An amendatory zoning ordinance was enacted by the city council of Miami Beach for the purpose of changing the zoning of an extensive area fronting on the Atlantic Ocean from a private residential to a hotel district. The amendment received the required affirmative votes of five of the seven members of the council, including the vote of one councilman who owned land in the area affected by the amendment which would be increased in value by $500,000 because of the zoning change. Plaintiffs, owners of near-by property, filed suit in the circuit court to have the amendatory ordinance declared invalid …

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 …

"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 …

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.

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 …

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?

Military Law - Service Discharge - Judicial Review Of Discharge Classifications, Edward M. Heppenstall

Michigan Law Review

In 1954 petitioners were discharged from the Army in form other than "honorable." Petitioner Harmon had previously been questioned by Army officials regarding alleged Communist affiliations. Since most of the charges against him were based on conduct antedating his induction into the Army and since his military record had been "excellent," petitioner Harmon was informed that he would not be discharged as disloyal or subversive pursuant to Army regulations, but would be retained in his then present grade, assigned nonsensitive duties, and given a discharge at the end of his career appropriate to the character of the service he had …

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 …

Chamberlin, Bradley, Reilly And Pound: Labor Unions And Public Policy & Gregory: Labor And The Law, Paul R. Haerle

Michigan Law Review

A Review of Labor Unions and Public Policy. By Edward H. Chamberlin, Philip D. Bradley, Gerard D. Reilly and Roscoe Pound.

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 …

A Comment On The Law Of Torts, Luke K. Cooperrider

Michigan Law Review

The recently-published treatise by Professors Harper and James, The Law of Torts, which is the subject of this article is no routine publication. It is not a mere recasting in different language of an already familiar synthesis; nor is it the kind of book one keeps around for casual reference. It is, rather, a statement of a philosophy of tort liability which, by reason of its consonance with much of the currently vocal thought in the field, and by reason of the powers of analysis and expression that the authors have brought to bear, is almost certainly destined to …

Antitrust Considerations In Motor Carrier Mergers, Carl H. Fulda

Michigan Law Review

Unification of separate independent business enterprises in a single organization may raise important questions of antitrust policy. The entity which emerges may have acquired, as a result of such unification, a market position of such significance that a substantial lessening of competition or even the creation of a monopoly becomes not only possible but probable. This would be apparent whenever opportunities for buyers of the products or services of the new single unit to shop freely, and to make independent decisions as to prices, channels of purchases and selection of suppliers were to be seriously curtailed, or where such curtailment …

Landowners' Rights In The Air Age: The Airport Dilemma, William B. Harvey

Michigan Law Review

If Lord Tennyson had been a student of the common law, he might well have qualified his poetic foresight of "the heavens fill[ed] with commerce" by some cautious reference to the complaints of landowners below against the "pilots of the purple twilight, dropping down with costly bales." The result doubtless would have been poorer poetry but a far more accurate forecast of the problems to confront mid-20th century lawyers. Although the phenomenal growth of civil aviation since the first World War has opened up a host of difficulties, the only ones of concern in this article are those presenting the …

Cml Procedure - Mandamus - Application To Erroneous Refusal To Dismiss On The Ground Of Forum Non Conveniens, George E. Parker Iii

Michigan Law Review

Petitioner railroad, defendant in a suit brought in Illinois under the Federal Employers' Liability Act, moved to dismiss on the ground of forum non conveniens. The accident occurred in New Mexico, and none of the parties or witnesses was a resident of Illinois. The railroad, however, did business in Illinois as well as in other states, and had its principal offices and legal staff in Chicago. Upon denial of the motion to dismiss, the railroad, on original petition to the Supreme Court of Illinois, sought a writ of mandamus to compel dismissal. Held, writ denied, two justices dissenting. Mandamus …

Taxation - Federal Estate Tax - Insurance And Annuity Combinations, John B. Schwemm S.Ed.

Michigan Law Review

Decedent, aged seventy-six, invested in three single premium life insurance policies. Issuance of each was conditioned on the purchase of a single life, nonrefundable annuity of specified value, and no physical examination was required. Each combination was balanced so that the total premium, exclusive of loading charges, equalled the face value of the insurance. The resulting correlation between compound interest and annuity disbursements made the guaranteed payments to the annuitant correspond precisely with the expected income of a reinvestment of the entire deposit by the insurer. Decedent retained the annuity rights, but all present and future interests in the life …

Periodical Index, Michigan Law Review

Michigan Law Review

This index includes articles, comments and some of the longer notes which have appeared in leading law reviews since the publication of the last issue of this Review.

Constitutional Law - Citizenship - Power Of Congress To Effect Involuntary Expatriation, Robert J. Hoerner S.Ed.

Michigan Law Review

In four recent cases the United States Supreme Court has dealt with the power of Congress to effect the denationalization of native-born citizens without their consent. Three cases, Perez v. Brownell, Trop v. Dulles, and Mendoza-Martinez v. Mackey dealt with the constitutionality of sections 401(e), 401(g) and 401(j), respectively, of the Nationality Act of 1940. The fourth case, Nishikawa v. Dulles dealt only with the burden of proof when duress is alleged under section 401(c), but contained one opinion of constitutional significance. The purpose of this comment is to analyze and evaluate these decisions.

Criminal Law - Felony - Murder-Guilt Of Robber For The Justifiable Killing Of His Accomplice By A Policeman, Nick E. Yocca S.Ed.

Michigan Law Review

The defendant was convicted of murder in the first degree for the death of his co-felon resulting from a wound inflicted by a policeman while the felons were fleeing the scene of a robbery. On appeal to the Supreme Court of Pennsylvania, held, reversed, one judge dissenting. For conviction in felony-murder, the killing must be done by the defendant or by one acting in furtherance of the felonious undertaking. One cannot be convicted for the consequences of lawful conduct of another person. Commonwealth v. Redline, 391 Pa. 486, 137 A. (2d) 472 (1958).

Taxation - Federal Income Tax - Right Of Donee To Deduct Expense Of Contesting Gift Tax Asserted Against Donor, William J. Wise S.Ed.

Michigan Law Review

ln 1948 taxpayer's mother gave him 410 shares of stock in the family enterprise. She filed a gift tax return, but the government, in auditing it, disagreed with her valuation of the stock. Donor had no desire to contest the government's valuation, but since his mother and father still held substantial stock in the business which would eventually go to him, donee desired a lower valuation for estate tax evidentiary purposes. Allegedly fearing personal liability for any deficiency assessed against his mother as well as a lien against the corpus of the gift for any unpaid tax, he decided to …

Torts - Prima Facie Tort - Liability For Instigation Of Police Investigation Or Prosecution, John H. Jackson

Michigan Law Review

Plaintiff organized a corporation for the purpose of collecting funds from the public to aid cancer victims. Defendant, well-known columnist engaged in soliciting money for a rival cancer fund, was alleged, inter alia, to have instigated state and federal government investigations and prosecutions that resulted in plaintiff being criminally convicted and subsequently acquitted on a new trial after appeal. As a consequence of these actions, public confidence had been destroyed in plaintiff's cancer fund corporation and it had ceased to function. Plaintiff complained that defendant's actions were done with the intention of harming plaintiff and had resulted in plaintiff's loss …

Fiduciary Administration - Nominee Statutes - Transfer Of Securities Held For The Benefit Of Another, Joseph T. De Nicola

Michigan Law Review

Michigan is the forty-second jurisdiction to enact a nominee statute. Nominee statutes authorize a fiduciary to nominate a third person to hold stock or securities in the third person's name without giving notice on the stock certificate or on the transfer books of the corporation of his qualified ownership. For the most part it has been assumed that these statutes would facilitate a more rapid transfer of securities. It is the purpose of this comment to compare and analyze these statutes and to determine whether they are the most effective means of accomplishing the end they are intended to serve.

Should The Rule Against Perpetuities Discard Its Vest?, Daniel M. Schuyler

Michigan Law Review

From what has preceded it is apparent that none of those who would reform the rule against perpetuities, excepting Professor Simes, has suggested that the rule's application to remoteness of vesting alone requires investigation. Yet there is little doubt that this aspect of the rule has caused as much if not more litigation than those which have been so harshly condemned. Proof of this assertion will not be undertaken, for every property lawyer knows how frequently courts are called upon to determine whether for purposes of the rule an interest is "vested" or "contingent." Professor Simes put it well when …

Constitutional Law - Due Process -Knowledge Of The Law Required For Conviction Under Criminal Registration Ordinance, David C. Berg

Michigan Law Review

Defendant-appellant was charged with violation of a Los Angeles municipal ordinance which required all persons convicted of a felony in California, or of a crime committed elsewhere which would have been punishable as a felony in California, subsequent to January 1, 1921, to register with the Chief of Police upon remaining in the city longer than five days, or upon making more than five visits to the city within a thirty-day period. At the time of her arrest, appellant had been a resident of Los Angeles for seven years. Within that period she had been convicted (in Los Angeles) of …

Tax Accrual Accounting For Contested Items (Without The Benefit Of I.R.C. Sections 452 And 462), Harrop A. Freeman

Michigan Law Review

A spate of cases in 1956-1957 has required us to examine again the tax handling of accrual accounting in an attempt to find some way through the judicial morass. This study is concerned primarily with proper income and expense accrual reporting in cases in which some form of controversy exists or may exist between the taxpayer and another party concerning the item to be accrued.

Atomic Energy - Indemnity Legislation - Anderson Amendments To The Atomic Energy Act Of 1954, Dudley H. Chapman S.Ed.

Michigan Law Review

The Anderson Amendments were enacted to encourage private industry to enter the atomic energy field by removing the risk of excessive liability for a major nuclear reactor disaster. Such a disaster could result in liability far in excess of available insurance coverage. The solution provided by the new legislation has three aspects: (1) After private financial protection, geared to the amount of available insurance, is obtained by a person licensed by the Atomic Energy Commission, (2) the Commission will execute an agreement to indemnify (not insure) the licensee and "any other person who may be liable for public liability" to …

Should The Rule Against Perpetuities Discard Its Vest?, Daniel M. Schuyler

Michigan Law Review

The venerable rule of property known as the rule against perpetuities has recently been subjected to numerous searching and critical analyses, some of which will presently be discussed. Thus far nothing has been published dealing with, and only Professor Simes has touched upon, what seems to the present writer to be the most serious problem engendered by the common law rule in its commonly accepted form, i.e., the notion that the rule is concerned only with remoteness of vesting. It is the purpose of the present discussion to examine the concept of vesting as related to the rule and to …

Aliens - Deportation - Activity Consituting Membership In Communist Party, Mark Shaevsky

Michigan Law Review

Petitioner, an alien who had resided in the United States since 1914, joined the Communist Party in 1935 and during that year paid dues, attended meetings, and worked briefly at an official outlet for communist literature. He terminated his relationship with the party after approximately one year. At a hearing to consider his possible deportation, the petitioner disclaimed that he had held any belief in the forcible overthrow of government, stating that he had regarded the Communist Party solely as an instrument for securing economic necessities. The Board of Immigration Appeals upheld the hearing officer's finding that petitioner had been …

Avins: The Law Of Awol, Major General Thomas H. Green

Michigan Law Review

A Review of The Law of AWOL. By Alfred Avins.

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 …