Digital Commons Network^™

Judge And The Crime Burden, John Barker Waite

Michigan Law Review

One does not happily charge the judiciary with responsibility for the country's burden of crime, but the responsibility does in fact exist. Judges, though they may not encourage crime, interfere with its prevention in various ways. They deliberately restrict police efficiency in the discovery of criminals. They exempt from punishment many criminals who are discovered and whose guilt is evident. More seriously still, they so warp and alter the public's attitude toward crime and criminals as gravely to weaken the country's most effective crime preventive.

Corporations - Stockholders - Effect Of State Constitutional Provisions On Liabilty To Creditors For Unpaid Subscriptions, Douglas Peck S.Ed.

Michigan Law Review

Basset and Company, an Oklahoma corporation, issued stock to defendant for which defendant never paid. The sum due was carried on the corporate books as "subscriptions receivable." The corporation became bankrupt and the trustee brought suit in the federal district court to recover the amount due on the subscriptions. Held, judgment for the defendant. Under the Oklahoma Constitution, where stock is issued for consideration which is less than par value, the issue is void. The stock certificate cannot serve as a consideration to support the would-be stockholder's promise to pay for the stock, and no liability attaches to the …

Patents And Antitrust: Peaceful Coxeistence?, S. Chesterfield Oppenheim

Michigan Law Review

My thesis for this paper is based upon developments which appear, as of 1955, to bring into clearer focus the process by which the earned differential advantages of patent rights are being adjusted to the prohibitory dixits of antitrust law. This is part of the never-ending governmental function of balancing stability of legal rights against the desired flexibility resulting from evolutionary growth. We can only chart the directions of the current trends. Generalizations from this panorama should not be overdrawn or artificially simplified. Both the patent and antitrust spectra are arranged in degrees. The edges of certainty are blurred in …

Real Property - The Effect Of Zoning Ordinances On The Law Of Nuisance, Robert B. Fiske, Jr. S.Ed.

Michigan Law Review

One of the most interesting and least explored questions in the law of property is the effect of zoning ordinances on the law of nuisance. Particularly interesting is the extent to which statutory authorization by zoning can legalize a use of land which, in the absence of a zoning ordinance, would constitute a nuisance. In order to understand this problem fully it is necessary to begin with a general analysis of the law of nuisance and the various classifications into which it has been divided by the courts.

Corporations - Charter - Change Of Voting Right By Amendment, Dale W. Van Winkle S.Ed.

Michigan Law Review

Defendant, incorporated in 1938 with an authorized capital stock of 500 shares, amended its articles of incorporation in 1940 to increase the common stock to 2,000 shares, and to authorize the issue of preferred stock. By the amendment, the voting power was vested exclusively in the common stock, with the exception that the holders of preferred stock would acquire temporary voting power upon default of four semi-annual dividends. Default in payment of dividends occurred and the preferred stockholders exercised the right to vote from 1943 on. In 1953, a second amendment was proposed and passed by a majority in interest …

Cahn: The Moral Decision, William R. Jentes S.Ed.

Michigan Law Review

A Review of The Moral Decision. By Edmond Cahn

Taxation - Federal Income Tax - Renting Out A Single Home As A Trade Or Business For Purposes Of Capital Loss Carry-Over, Alice Austin S.Ed.

Michigan Law Review

Taxpayer, who was not in the real estate business and who was involved in only occasional real estate transactions, inherited a house which he rented out until he sold it at a loss. He treated the transaction as a capital loss, taking advantage of the capital loss carry-over provisions of the Internal Revenue Code. Deficiency assessments were levied against the taxpayer upon the theory that the loss sustained upon the sale of the house was an ordinary loss which could not be carried over to later years. Taxpayer paid the deficiency assessment and sued for a refund. The district court …

Monthy Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews.

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Constitutional Law - Freedom Of Religion - Judicial Intervention In Disputes Within Independent Church Bodies, Julius B. Poppinga S.Ed.

Michigan Law Review

It is the purpose of this comment to set forth the several principles applied by courts in determining controversies in independent church groups and to consider the constitutional implications of judicial intervention.

Real Property - Recording - Sufficiency Of Description For Notice, Elliott H. Levitas

Michigan Law Review

The grantor owned the disputed property in Scurry County, Texas, when he purported to convey to A, by quit-claim deed, properties described as "all the oil, gas and mining leases ... located anywhere within the United States, most of which are located within the states of New Mexico, Kansas, Oklahoma, Louisiana and Texas." This instrument was recorded in Scurry County. Subsequently, the grantor executed a conveyance to B covering the Scurry County interests, and B, in turn, conveyed them to C. C's search of the record did not disclose the prior conveyance to A. In …

Labor Law - Collective Bargaining - Contract Ratification And Strike Authorization Clauses As Statutory Proposals, Arne Hovdesoen S.Ed.

Michigan Law Review

After continued employer demands to discuss contract ratification and strike authorization clauses, the union discontinued contract negotiations on the ground that such proposals constituted interference with its internal affairs and as such were not within the scope of mandatory collective bargaining as defined by sections 8 (d) and 9 (a) of the amended National Labor Relations Act. The National Labor Relations Board found the union's action to be the result of the employer's refusal to bargain in compliance with section 8 (d) and issued an appropriate order directing the company to cease and desist from insisting upon these proposals to …

Regulation Of Business - Boxing And Theater Now Within Scope Of The Sherman Act, Norman A. Zilber S.Ed.

Michigan Law Review

The United States instituted two civil antitrust actions under section 4 of the Sherman Act claiming that defendants were acting in restraint of trade in their respective fields. Defendant Shubert was engaged in the multistate business of producing, booking, and presenting legitimate theatrical attractions. Defendant International Boxing Club was engaged in the business of promoting professional boxing contests, also on a multistate basis, with an alleged 25 percent of its revenue being derived from the interstate sale of radio, television, and motion picture rights. The district court dismissed both complaints on the authority of Federal Baseball Club v. National League …

Trusts - Spendthrift Trusts - Reduction In Income As Justification For Termination In Favor Of Beneficiary, Norman A. Zilber S.Ed.

Michigan Law Review

Testatrix died in 1913 leaving a will which established a $20,000 spendthrift trust. The income from this trust was to be paid to her son for life with the remainder, in default of issue and the exercise of a general testamentary power of appointment, to go to the other descendants of the testatrix then living. The stated purpose of the trust was to assure her son of "a support throughout his . . . whole life, under any circumstances.'' The son, 65 years old and without issue, sought to terminate the trust on the ground that he was about to …

Mccormick: Handbook Of The Law Of Evidence, Mason Ladd

Michigan Law Review

A Review of Handbook of the Law of Evidence. By Charles T. McCormick

Taxation - Federal Income Tax - Punitive Damages And Recovered "Insider's Profits" Taxable As Income, Alice Austin S.Ed.

Michigan Law Review

In previous litigation one of the defendant taxpayers received punitive damages for fraud practiced upon it and both received treble damages for injuries to business caused by conduct in violation of the federal antitrust laws. The court of appeals affirmed the Tax Court's rulings that these receipts were not taxable as gross income. On certiorari to the Supreme Court, held, reversed. Money received as punitive awards is includible in gross income under section 22 (a), I.R.C. (1939). Commissioner v. Glenshaw Glass Co. and William Goldman Theatres, Inc., 348 U.S. 426, 75 S.Ct. 473 (1955).

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews.

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Partial Strikes And National Labor Policy, Richard Mittenthal

Michigan Law Review

Some authorities have argued that "partial strike" is a misnomer and a contradiction in terms. In their view, a partial strike is not in fact a "strike" and should not be entitled to any of the legal benefits and protections which may stem from a strike status. That argument is discredited today, especially because of the broad definitions which were incorporated in the amended National Labor Relations Act. In Title V, section 50 l (2) of the act, Congress said: "The term 'strike' includes any strike or other concerted stoppage of work by employees ... and any concerted slowdown or …

Gray Vs. Powell And The Scope Of Review, Bernard Schwartz

Michigan Law Review

In dissenting from the decision of the Supreme Court in a celebrated administrative-law case, Justice Jackson once declared: "I give up. Now I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.' " It cannot be denied that the learned justice's reaction is one which is often felt by students of Supreme Court jurisprudence. This has been particularly true of the field involved in the case which called forth Justice Jackson's plaint--i.e., that of administrative law. American administrative lawyers have not infrequently had this same response to decisions of …

Constitutional Law - Due Process - Automatic And Permanent Dismissal Of Public School Teachers For Invoking The Privilege Against Self-Incrimination, John B. Huck S.Ed.

Michigan Law Review

Petitioners, employed as public school teachers in New York City, were subpoenaed to appear before a Senate Internal Security Subcommittee. When questioned by the committee about communist activities, petitioners asserted the constitutional privilege against self-incrimination. Pursuant to the New York City Charter, they were summarily dismissed and permanently barred from re-employment by the city. No hearing was required nor given prior to the dismissal. There was no evidence of conduct otherwise warranting a dismissal. In an action for reinstatement, held, dismissal affirmed. Daniman v. Board of Education of City of New York, 306 N.Y. 532, 119 N.E. (2d) …

Constitutional Law - Due Process - Dismissal Of Appeal As Exercise Of Contempt Power, Morton A. Polster S.Ed.

Michigan Law Review

A superior court of the state of Washington rendered a $475,000 judgment against the petitioner union for the circulation of a libelous letter. The union filed an appeal to the Washington Supreme Court but obtained no stay of proceedings in the lower court because it made no offer of the required supersedeas bond. In a supplemental proceeding it was learned that the union had no substantial assets in Washington but did have $298,000 of United States bonds in its possession in California. The Superior Court ordered the union to deliver these bonds to the court's receiver to protect the judgment …

Labor Law - Collective Bargaining - Enforceability Of Collective Agreements Under Section 301(A), Douglas Peck S.Ed.

Michigan Law Review

Plaintiff, an unincorporated labor organization, filed suit in federal district court to enforce a collective bargaining agreement with defendant. The complaint alleged that defendant was obligated by the agreement to pay employees represented by the plaintiff their full salary for the month of April 1951 regardless of the fact that they had been absent on certain working days. The suit was brought under section 301 (a) of the Labor-Management Relations Act of 1947.On appeal from a court of appeals decision directing dismissal for lack of jurisdiction, held, affirmed, two justices dissenting. An action by a labor organization to enforce …

Corporations - Extent To Which Vote Of Proxy Binds The Shareholders, Herbert R. Brown S.Ed.

Michigan Law Review

Plaintiff; in a derivative action, charged certain directors of the corporation with appropriating a corporate opportunity to their own benefit. Defendant directors moved for summary judgment· on the ground that the questioned transaction was ratified by the stockholders, with plaintiff's stock being voted by proxy in favor of ratification. Held, motion for summary judgment denied. The plaintiff was not estopped from suit even though her proxyholder, the corporation management, voted her stock for the ratification, since she had no notice that the question was to be voted on when she gave her proxy. Gottlieb v. McKee, (Del. Ch. …

Evidence - Spontaneous Declarations - Statement By Injured Party While On Way To Hospital, James Beatty S.Ed.

Michigan Law Review

Plaintiffs were injured in an automobile accident involving a car, driven by the defendant's decedent, and two oncoming trucks, one passing the other on a three lane highway. Twenty-five minutes after the accident a state police officer arrived and took the driver of the passing truck, who was severely burned and in terrific pain, to the hospital. En route and in response to the officer's inquiry, the driver stated that defendant had caused the accident by swerving to the wrong side of the road. The statement was admitted over defendant's objection that it was hearsay, and verdict was rendered for …

Criminal Law - Contradictory Statements Under Oath As Grounds For Perjury In The Federal Courts, Richard M. Adams S.Ed.

Michigan Law Review

Perjury has frequently been described as one of the more difficult convictions to obtain, and the truth of this saying is no better illustrated than in the case of Harvey Matusow. During the two years in which ex-Communist Matusow served as a professional government witness, he accused 180 or more persons as being members of the Communist Party or Communist sympathizers. This same witness has now described himself as a "habitual and perpetual liar" and has publicly admitted that all of his previous testimony was false. On the strength of this recantation, motions were filed for a new trial in …

Criminal Law - Scope Of Lawful Search And Seizure Without Warrant When Incident To Arrest, Richard M. Adams S.Ed.

Michigan Law Review

Acting on information that defendants were engaged in the "numbers racket" in violation of the Michigan gambling laws, police officers picked up three of the defendants in an automobile, took them to the police station, and proceeded to the home of their accomplice, Abbey Clay. On being admitted to the residence, the officers placed Abbey Clay under arrest and, despite her objections, promptly searched the L-shaped room in which they were standing when the arrest was made. Although the officers did not have a search warrant, they looked through defendant's pocketbook, magazine rack, and a cardboard box which was in …

The Patent-Antitrust Problem, Bartholomew Diggins

Michigan Law Review

The Patent-Antitrust section of the Report of the Attorney General's National Committee to Study the Antitrust Laws is an excellent analysis of the existing law and is an invaluable handbook for practitioners in this difficult field. The writer's approach to the problem is different from that of the committee and before commenting specifically on the Report it is only fair to state the writer's views of the problem lest differences in viewpoint give the impression of criticism of the Report.

In any approach to the patent-antitrust problem there is a basic question: does a "patent-antitrust problem" exist? The Report …

Antitrust And Labor, Russell A. Smith

Michigan Law Review

The thirteen-page treatment of the subject of "organized labor" in the Report of the Attorney General's National Committee to Study the Antitrust Laws shows that the committee approached the subject gingerly, and that the counsel of moderation prevailed. The views of those who would change the national policy favoring (or at least tolerating) the existing institutions of trade unionism and collective bargaining by subjecting unions to "monopoly" standards are not discussed in the Report. The result is a limited and generalized approach, which holds that some kinds of union practices "aimed directly at commercial market restraints" run counter to …

Evidence - Privilege - Maintaining Action Where The Evidence May Affect The National Security, John F. Dodge, Jr. S.Ed.

Michigan Law Review

The plaintiff brought an action for the breach of a contract for the manufacture of certain arming mechanisms for the use of the United States Army. The defendant moved to dismiss the action on the grounds that the contract in question was classified as confidential by the army and that the disclosures of certain facts asserted to be material in the prosecution and defense of the action would be a violation of the Federal Espionage Laws. Held, motion denied. The court should invoke every proper judicial technique to keep state secrets unrevealed, but it should not dismiss a valid …