Digital Commons Network^™

Securities Regulation- Federal Courts-Private Rights Of Action Under The Investment Company Act Of 1940, Lee D. Powar

Michigan Law Review

Two actions for damages were brought against officers and directors of a mutual investment fund alleging violations of the Investment Company Act of 1940. These actions, by the fund itself and by a stockholder on behalf of the fund, were consolidated in a federal district court. The court denied defendant's motion to dismiss for want of federal jurisdiction. On an interlocutory appeal by the non-affiliated directors, held, reversed. The Investment Company Act of 1940 does not expressly or by implication create a private right of action cognizable in the federal courts against non-affiliated directors. Brouk v. Managed Funds, Inc. …

Constitutional Law - Freedom Of Speech And Press - Prohibitions On The Publication Or Distribution Of Anonymous Campaign Literature, Frank G. Reeder S.Ed.

Michigan Law Review

Defendant was charged under a federal statute' with the publication and distribution of a pamphlet which concerned a candidate for United States Senator in a special senatorial election and which did not contain the name of the person or group responsible for its publication and distribution as required by the statute. The defendant alleged that his occupation as a farmer made him particularly subject to regulation by the federal government, and that he feared coercion or reprisals from the federal representatives with whom he dealt if he complied with the statute's disclosure requirement. On motion to dismiss the information on …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 40, Issue 4 of Michigan Law Review

Chinese Communist Law: Its Background And Development, Luke T. Lee

Michigan Law Review

It is perhaps axiomatic to state that law is more than an instrument for the settlement of disputes and punishment of wrongdoers; it is, more importantly, a reflection of the way of life and the philosophy of the people that live under it. Self-evident though the above may be, it bears repeating here, for there is a much greater need for understanding Chinese law now than ever before. China's growing ideological, political, economic, and military impact on the rest of the world would alone serve as a powerful motivation for the study of its law. Certainly, we could not even …

Taxation-Federal Income Tax-Strike Insurance Agreements, Robert A. Butler S.Ed.

Michigan Law Review

Contracts indemnifying persons or corporations for losses and damage resulting from an interruption of business due to strikes have existed at least since the beginning of this century. The Mutual Security Company of Connecticut, for example, wrote such a policy for the Buffalo Forge on April 9, 1906. In more recent times, strike insurance agreements have been instituted in major industries, and their impact on collective bargaining has been the subject of some controversy. The purpose of this comment is to consider the federal income tax questions which arise from such arrangements. Specifically, attention is directed to the deductibility of …

Constitutional Law - Due Process - Expulsion Of Student Fro M State-Operated College Without Notice Or Hearing, James A. Mcdermott

Michigan Law Review

A substantial number of students at the Alabama State College for Negroes had been participating in peaceful demonstrations protesting racial segregation. The president of the college advised the students to return to their studies which were disrupted by these demonstrations, and personally warned three of the plaintiffs to discontinue their participation in the demonstrations. Nonetheless, further demonstrations ensued in which the plaintiffs took part. The State Board of Education then voted to expel the plaintiffs who were allegedly the leaders of the organization responsible for the demonstrations. The notices of expulsion mailed to the plaintiffs stated no reason for the …

Constitutional Law - Equal Protection - Racial Segregation Of Spectator Seating In Courtroom, Thomas W. Van Dyke

Michigan Law Review

Defendant, judge of a municipal court in Virginia, assigned seating on the basis of race in that part of his courtroom reserved for spectators and for those awaiting the call of their business before the court. The same number of seats were provided for Negroes as for whites. There was no separation of the races in the area immediately before the bench nor was there any complaint of discrimination in the administration of justice. Plaintiffs are Negroes who have been required on more than one occasion to occupy seats in the spectator section on a racially-segregated basis. In a suit …

Evidence - Presumptions - Statutory Presumption Of Due Care In Wrongful Death Action, Francis X. Beytagh Jr.

Michigan Law Review

Consolidation of two actions arising from a multi-vehicle highway accident resulted in verdicts in both causes against appellants. One action was brought against appellants by the administratrix of a deceased driver under a wrongful death statute, and resulted in a verdict for the administratrix because of a statutory presumption of deceased's due care. The other action was a personal injury suit by a third party against appellants and the administratrix as co-defendants, and resulted in a verdict exonerating the deceased driver, despite circumstances raising an inference of his negligence. Appellants' motions for judgment notwithstanding the verdict and new trial were …

Insurance Law - Recovery - Action For Wrongful Refusal To Settle Claim Precluded By Bankruptcy Of Insured, James A. Mcdermott

Michigan Law Review

The plaintiff, as trustee in bankruptcy of the insured, sued the defendant insurer to recover damages resulting from a judgment entered against the insured in a personal injury suit. This judgment subjected the insured to a liability of 89,000 dollars in excess of the 10,000 dollar automobile liability_ coverage carried with the insurer. The insurer, pursuant to its policy, had undertaken the insured's defense and had failed, allegedly in bad faith, to settle the suit for an amount within the limits of its coverage. Before judgment was entered in the personal injury suit the insured was insolvent; six months following …

Wills - Probate - "Fraudulent" Destruction Notwithstanding Testator's Knowledge, Alan Rothenberg

Michigan Law Review

Decedent executed a will in which he exercised a general testamentary power of appointment making plaintiff beneficiary of a trust. The will was delivered for safekeeping to a notary in Germany and subsequently destroyed in a bombing raid. Decedent, having learned of the destruction of his will, died ten months later without executing a new will in the interim. The Surrogate admitted the will for probate as one "fraudulently destroyed" under New York law. The Appellate Division reversed. On appeal to the New York Court of Appeals, held, reversed, three judges dissenting. The will was "fraudulently destroyed" within the meaning …

Property - Multiple Ownership Of Apartment Buildings - Establishment Of Horizontal Property Regimes, Larry W. Waggoner

Michigan Law Review

The states of Arkansas and Hawaii have enacted legislation allowing the owner of a building, upon recordation of a master deed, to establish that building as a horizontal property regime, thereby permitting the owner to convey individual apartments in the building as if each were entirely independent of the remainder of the building. The purchaser of one of these apartments is constituted a "co-owner" and may record his deed. Each co-owner has an exclusive right to possession of his apartment and a right to a share, with the other co-owners, in those parts of the building that the statutes designate …

Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey

Michigan Law Review

A Review of The Judicial Decision- Toward A Theory of Legal Justification By Richard A. Wasserstrom.

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

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.

The Law-Making Treaties Of The International Telecommunication Union Through Time And In Space, J. Henry Glazer

Michigan Law Review

On the twenty-fifth of June, the Government of the United States of America received an invitation to attend in Russia a conference of plenipotentiaries to consider the revision of an important multilateral convention. Since the conference involved matters which, by American municipal practice, were solely within the competence of private enterprise and not subject to the control of government, the United States at first refused to attend. Russia, however, assured the United States that representatives of private enterprises would be welcome. Relations between these two countries were on such a friendly basis that the United States accepted the invitation extended …

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 publication of the last issue of this Review.

Insurance-State Regulation-Unauthorized Insurers False Advertising Process Act, Chester A. Skinner

Michigan Law Review

Recent Illinois legislation subjects foreign insurers who are not authorized to do business in Illinois and who circulate false advertising there to the jurisdiction of the state courts and the State Insurance Commissioner. When the Insurance Commissioner is informed of false or misleading advertising, he is to notify the supervisory insurance official of the domicile state of the foreign insurer. If this notice does not result in the cessation of the activity, the Commissioner may proceed against the insurer under the state's Unfair Trade Practice Act. Since the typical mail order insurer will not have agents or property within the …

Legislation On The American Frontier: Adoption Of Laws By Governor And Judges-Northwest Territory 1788-1798: Indiana Territory 1800-1804; Michigan Territory 1805-1823, William Wirt Blume

Michigan Law Review

The Northwest Ordinance of 1787 made provisions for legislation by the territorial government in two stages: (1) adoption of laws by the governor and judges from the laws of the original states, and (2) enactment of statutes by a legislature made up of the governor, a council, and elected representatives. The first method was to be followed until the population should reach 5,000 and the second method thereafter. The present study is limited to the first stage.

Immigration And Naturalization-Suspension Of Deportation- A Look At A Benevolent Aspect Of The Mccarran-Walter Act, Kenneth W. Graham Jr., S.Ed.

Michigan Law Review

This comment proposes to look, for a change, at one of the ameliorative portions of the act, the provisions which allow suspension of deportation for certain deserving aliens. This section of the statute is not only unusual in its solicitude for the foreign-born and their families but is also effectuated by a peculiar interaction of the legislative, executive and judicial branches of government. Before considering the substantive law governing suspension of deportation, it is appropriate to look at the procedural aspects involved in applying the raw statutory language.

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Federal Courts - Choice Of Law Application Of Federal Law To Government Subcontract In Federal Diversity Case, H. C. Snyder Jr.

Michigan Law Review

Defendant obtained a government missile contract, and plaintiff was subcontracted to manufacture containers for the missiles. When certain changes in elements of the containers were ordered by the Government, plaintiff demanded an "equitable adjustment" from defendant pursuant to the terms of the subcontract. Defendant paid only the costs of effecting the necessary changes. Plaintiff instituted this suit in federal district court alleging diversity of citizenship and demanding that the adjustment include, as allowed by California law, compensation for overhead losses caused by a partial work stoppage during the delay in effecting the changes. The district court characterized the contract as …

Some Problems Of Evidence Before The Labor Arbitrator, R. W. Fleming

Michigan Law Review

Legal rules of evidence do not, of course, apply before the labor arbitrator. This is not surprising since such rules were developed in connection with jury trials, and do not apply strictly in any tribunal but a jury-court. The whole theory of the arbitration tribunal is that it is composed of experts who repeatedly inquire into a relatively homogeneous kind of cases. Exclusionary rules are hardly required as a precautionary measure. Indeed, as the late Harry Shulman said in his classic Oliver Wendell Holmes lecture at Harvard in 1955, "The more serious danger is not that the arbitrator will hear …

Federal Agency Investigations: Procedural Rights Of The Subpoenaed Witness, Frank C. Newman

Michigan Law Review

This article is designed to help fill a gap in the literature and to warn government attorneys, particularly, about some questionable asides in the Hannah case. We shall not deal with record-keeping requirements or with agency inspections, subpoenas duces tecum, and related search and seizure problems. The focus instead is on the subpoenaed witness; that is, a man who knows that force may be used against him unless pursuant to government command he appears and answers questions. We examine several rights that may protect the witness; and we shall also ask whether the agencies, to discharge their governmental duties, truly …

Federal Agency Investigations: Requirements For The Production Of Documents, Frank E. Cooper

Michigan Law Review

The United States district courts are frequently called upon to decide whether an administrative agency is entitled to enforcement of a subpoena requesting production of documentary evidence which the person to whom the subpoena is addressed assails as an unnecessary and improper inquisitorial investigation.

Neither the statute nor the decision-landmarks though they both are-offers a convenient rule of thumb to guide the district courts in the intensely difficult problems posed by requests for enforcement of administrative subpoenas.

However, an examination of the decisions passing upon such requests does disclose the standards by which the courts apply the three classic tests, …

Admiralty-Jurisdiction - Statute Extending Admiralty Jurisdiction To Include Amphibious Torts Resulting In Personal Injury, Francis X. Beytagh

Michigan Law Review

Libelant linehandler, injured undocking a vessel, brought a personal injury action against the shipowner. Leave to amend this complaint by naming the city of Los Angeles and a tugboat company as defendants was denied by the federal district court. Libelant then filed suit on the admiralty side of the same district court against the city and the tugboat company on the identical cause of action. In ruling on respondents' exceptions to this libel, held, exceptions overruled. Upon establishing the constitutional validity of the Admiralty Extension Act, jurisdiction pursuant to its provisions can properly be exercised in the instant ship-to-shore …

Antiturst Law-Exemptions For Regulated Industries - Applicability Of The Antitrust Laws To Stock Exchanges, Peter D. Byrnes S.Ed.

Michigan Law Review

Defendant, the New York Stock Exchange, directed its members to discontinue their direct private wire connections with plaintiffs who were non-member brokers. These private wire connections were utilized primarily for facilitating transactions in the over-the-counter market. Repeated requests by plaintiffs for reinstatement were ignored, and the defendant refused to apprise the plaintiffs of the reasons for its action. Plaintiffs then brought suit, seeking damages and injunctive relief pursuant to sections 4 and 16 of the Clayton Act. Maintaining that defendant's conduct violated section 1 of the Sherman Act, plaintiffs moved for summary judgment. Held, motion granted.6 Defendant does not …

Criminal Procedure - Search And Seizure - Federal Court Injunction Against State Officer To Suppress Illegally Obtained Evidence In State Court, S. Anthony Benton

Michigan Law Review

Federal customs enforcement officers suspected plaintiff of theft from a waterfront pier. In the course of their investigation they searched plaintiff's home without a search warrant and detained plaintiff for questioning without first bringing him before a federal commissioner. Both acts violated the Federal Rules of Criminal Procedure. Defendant, a state officer, although not a participant in the search, was present during the illegal detention at the invitation of the federal officers. Plaintiff obtained an order in federal district court enjoining defendant from giving any testimony or producing any evidence in state criminal proceedings against him with respect to property …

Taxation - Federal Income Tax - Capital Gain Treatment Of Amount Received From Sublessee By Lessee-Sublessor For Surrender Of Lease To Lessor, Paul Tractenberg

Michigan Law Review

The lessor and the sublessee of a valuable piece of business property sought to remove the intervening interest of petitioner, the lessee-sublessor. Petitioner agreed to release to the lessor all his right and interest in the leasehold and in consideration therefor petitioner received a sum of money from the sublessee. The Tax Court decided in a deficiency proceeding that the entire amount should be taxed as ordinary income on the ground that it was merely a substitute for future rental payments. On appeal, held, reversed. Since the substance of the transaction was the transfer of the leasehold from the …

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.

Llewellyn: The Common Law Tradition- Deciding Appeals, Luke K. Cooperrider

Michigan Law Review

A Review of The Common Law Tradition- Deciding Appeals. By Karl N. Llewellyn.