Digital Commons Network^™

Antitrust Policy In Distribution, Kendall B. Debevoise

Michigan Law Review

The American genius lies quite as much in distribution as in manufacturing. Other peoples have demonstrated equal or greater creative ability in many fields. And it is debatable whether their talents are any less at mass production given adequate economic demand. But they have nowhere shown the American genius for distribution. It is axiomatic that if you manufacture in Detroit and your potential customer lives in New York, you need mutual friends. We seem to have figured out better ways to provide better friends for this purpose than any other nation.

But manufacturing came first. Someone had to build a …

The Antitrust Laws In Foregin Commerce, Robert A. Nitschke

Michigan Law Review

The Sherman Act applies to trade or commerce "with foreign nations." Are there differences in the act's application to foreign trade compared with its application to domestic commerce? The Attorney General's National Committee to Study the Antitrust Laws was constituted at a time when this question was pressing for an answer.

During the 1920's and 1930's, the international cartel movement was in full Hood. American companies participated in some of these international arrangements, often in the belief that they were a necessary condition for world trade and upon the legal premise that restrictions adjunctive to patent and know-how licenses were …

Conflict Of Laws - Contracts - Enforcement Of Foreign Contract Though Contrary To State, William G. Cloon, Jr. S.Ed.

Michigan Law Review

Plaintiff, a citizen of Texas, obtained from the defendant an insurance policy which was written and delivered in Texas. The defendant agreed to pay for any damages to plaintiff's truck caused by fire, but stipulated that any dispute over the amount of the loss should he determined by arbitration proceedings in accordance with the terms of the contract. The truck was damaged by fire in Arkansas and a dispute arose over the amount of the loss. Plaintiff refused to submit the question to arbitration and brought this suit in the Federal District Court for Arkansas. Defendant argued that the action …

Antitrust Administration And Enforcement, John T. Chadwell

Michigan Law Review

The importance of the nation's antitrust policy requires that administration and enforcement powers and techniques be equal to the huge task of effectively safeguarding competition. The recommendations of the Attorney General's Committee represent a statesmanlike effort to balance the need for effective enforcement with the need for the preservation of fairness and the conservation of time and resources in antitrust litigation. Some of the recommendations will undoubtedly engender heated controversy; others seem relatively uncontroversial.

Many individual topics are dealt with in the Report of the committee and space does not permit comment upon all of them. The following discussion is …

Constitutional Law - Federal Anti-Subversive Legislation - The Communist Control Act Of 1954, Paul R. Haerle

Michigan Law Review

This comment is intended as a preliminary step in an analysis of the legislative history of the act and a consideration of both its potential effectiveness and constitutional validity.

Limitations Of Actions - Conversion, Irving L. Halpern

Michigan Law Review

Defendant purchased and went into possession of land in 1944 at which time a logging donkey was upon the land. The donkey had been on defendant's land without having been moved or used since 1942. From 1944 to 1952 defendant made numerous inquiries as to the ownership of the donkey without success. Through various conveyances, beginning in 1946, and without any transfer of possession, plaintiff acquired title to the donkey in 1952. In May 1952, in order to further develop his land, defendant sold the donkey. In a suit by plaintiff for conversion of the donkey, the lower court ruled …

Constitutional Law - Due Process - Validity Of Refusal To Permit The Showing Of A Motion Picture On The Grounds Of Obscenity, Donald F. Oosterhouse S.Ed.

Michigan Law Review

A Chicago municipal ordinance made it unlawful to exhibit any motion picture without first having secured a permit from the Commissioner of Police. The commissioner is required to issue the permit unless he finds the picture "immoral or obscene. . .. " On these grounds he refused to permit exhibition of "The Miracle." Plaintiffs brought suit to have the ordinance declared unconstitutional and to restrain enforcement of the prohibition on the picture. The trial court granted the relief asked. On appeal, held, reversed and remanded to determine if the motion picture is obscene. A prior restraint on the exhibition …

Restitution - Election Of Remedies - Action In Quasi-Contract Against Joint Tortfeasor As Barring Fraud Action Against Other Joint Tortfeasors, Douglas Peck S.Ed.

Michigan Law Review

Plaintiff sued for fraud, alleging that defendant engraving companies secretly agreed with an agent of the plaintiff to give the agent a commission in return for which the agent was to contract for engraving work to be done by the defendants for plaintiff at a rate in excess of the fair market price for such work. Upon discovery of the fraud and prior to the commencement of this action, plaintiff had instituted an action in a state court against its agent for money had and received, and had obtained an attachment. Upon defendants' motion to dismiss the fraud action, held …

Contributory Negligence - Duty Of Pedestrian To Look While Crossing Intersection With Light, Harvey A. Howard S.Ed.

Michigan Law Review

The plaintiff was crossing a busy intersection in reliance on a green traffic light in his favor when he was struck by defendant's automobile. Testifying in his own behalf, plaintiff said that he waited until the light changed to green and traffic on both sides stopped before proceeding to cross the street. He further stated that he was hit just before reaching the other side of the street. He did not see defendant's automobile before it struck him. At the conclusion of this testimony defendant moved for a directed verdict on the ground that plaintiff had failed to show freedom …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

The index embraces material published since the last issue of this Review.

Labor Law - Collective Bargaining- Compulsory Retirement As Discharge "Without Cause" Under Collective Bargaining Agreement, Douglas Peck S.Ed.

Michigan Law Review

Plaintiff-employee was informed by the defendant, his employer, that his employment would be terminated because he had attained the age of sixty-five and it was the policy of the defendant to retire such employees. There was evidence indicating that this policy had been in practice uniformly for several years, but it was not incorporated in the collective bargaining agreement between defendant and plaintiff's union. Plaintiff sued for damages for violation of his rights under the collective agreement. Held, judgment for plaintiff. The legal and practical effect of compulsory retirement is the same as a discharge, and plaintiff's employment was …

Constitutional Law - Church And State - Statute Requiring Religion To Be Taken Into Consideration In Adoption, David W. Swanson

Michigan Law Review

ln 1951, a Jewish couple obtained custody of illegitimate twins who were then two weeks old. In 1954, the couple formally sought to adopt the children. Although petitioners were otherwise qualified to act as parents, a Massachusetts statute provides that "in making orders for adoption, the judge when practicable must give custody only to persons of the same religious faith as that of the child." The twins' natural mother was Catholic but had consented in writing to adoption by the petitioners and to rearing of the children in the Jewish faith. The lower court found that several Catholic couples had …

Constitutional Law - Civil Rights Statute - Failure To Release Prisoner Promptly Not A Violation Of Section 242, Stephen C. Bransdorfer

Michigan Law Review

A Florida state attorney was charged with violation of the Federal Civil Rights Statute for failure to apply for release of a Negro prisoner held nineteen months without charge. The prisoner had been held on request of the state attorney for further prosecution or use as a witness after a verdict had been directed in the prisoner's favor in a prior murder trial. Neither the prisoner nor defense counsel petitioned for release. The United States District Court dismissed the indictment. On appeal, held, affirmed. No duty existed on the part of the Florida state attorney to make application for …

Tax-Free Corporate Acquisitions - The Law And The Proposed Regulations, Robert L. Merritt

Michigan Law Review

The quest for interpretation is indeed an ancient one. Our life path is pervaded by a search for meanings.

It has been said of the law that it is sometimes better to have a bad rule than to have no rule. I suppose the rationale is that unsatisfactory certainties at least permit action, and are susceptible to a change for the better, the very badness of the rule serving to accelerate the equitable resolution. Being neither philosopher nor historian, I do not know whether that patience which awaits ultimate improvement is always a virtue.

Suits Against Unincorporated Associations Under The Federal Rules Of Civil Procedure, John Kaplan

Michigan Law Review

Concepts, Benjamin Cardozo has said, "are useful, indeed indispensable, if kept within their place. We will press them quite a distance. . . . A time comes, however, when the concepts carry us too far, or farther than we are ready to go with them, and behold, some other concept, with capacity to serve our needs is waiting at the gate. 'It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation, and that an expression in an opinion …

Criminal Law - Reexamination Of Tests For Criminal Responsibility, Mary Lee Ryan

Michigan Law Review

Criminal law in the Anglo-American system of jurisprudence is based upon the concept that persons should be held responsible for their acts. A strong corrollary to this idea is that certain types of persons, namely the "insane," should not be held responsible for criminal conduct. Although this proposition seems beautifully simple, courts in England and the United States for over a hundred years have wrestled with the problem of what constitutes insanity, or, to phrase it more accurately, what type of mental condition should preclude responsibility for a criminal act.

Constitutional Law - Federal Immunity From State Taxation - Validity Of State Sales Tax Upon Purchases And Sales By National Banks, Julius B. Poppinga

Michigan Law Review

The 1949 revision of the Michigan Sales Tax Act changed the federal exemption provision so as to permit taxation of sales to corporations acting as agents or instrumentalities of the federal government but not wholly owned by the United States. Accordingly, defendant department of revenue took the position that sales to plaintiff, a national banking institution organized under the National Banking Act, are taxable. In the course of its operations, plaintiff purchases office equipment and other tangible personal property from Michigan. retailers. It also sells food and services to employees through its cafeteria, and sells repossessed merchandise to other parties. …

Corporations - Stockholders - Cancellation Of Stock Issues Without Consideration, James W. Beatty S.Ed.

Michigan Law Review

At the beginning of 1936, plaintiff, a Wisconsin corporation, had an earned surplus deficit of $106,134.89, and a surplus of $685,642.89 created by a reduction of capital stock. Net earnings for 1936 were $121,515.96, none of which were distributed as dividends. An undistributed profits surtax was assessed on the entire current net earnings. Plaintiff sued for a partial refund under an amendment providing retroactive relief for corporations which were prohibited by law from paying dividends during the existence of a deficit in accumulated earnings at the time when the tax was paid. The district court denied relief. On appeal, held …

Criminal Procedure - Venue - Federal Offenses Committed Outside The Jurisdiction Of Any State Or District, Richard R. Dailey

Michigan Law Review

The defendant, an army staff sergeant, was under custody at Fort Meade, Maryland, awaiting disposition of charges of sodomy lodged against him under the Articles of War. After a delay of four months, the charges were dropped and he was shipped by the Army to Fort Jay, New York, where he was separated from the service. Immediately upon his release, he was arrested by the Federal Bureau of Investigation under a commissioner's warrant charging him with treason committed in Japan during a prior enlistment in the army. At the trial in the District Court for the Southern District of New …

Criminal Procedure - Standing Of The Press To Protest Judge's Exclusion Of The Public From Criminal Trial, M. Fred Mallender, Ii S.Ed.

Michigan Law Review

Plaintiff newspapers sent reporters to the trial of Minot Jelke. Defendant judge, exercising his discretion, excluded them as well as the general public from the courtroom when testimony dealing with the sordid details of prostitution and pandering was expected. The family and friends of the accused, along with the officers of the court, witnesses and jury were not excluded. Plaintiffs applied to the Supreme Court, Special Term, of New York County for a writ of prohibition to restrain the defendant from enforcing his order. The application for the writ was based on a statute guaranteeing the accused in a criminal …

Legislation - Application Of Merchantile License Tax To Lawyers, Edward H. Hoenicke

Michigan Law Review

The Philadelphia City Council passed an ordinance entitled "An Ordinance--To provide for revenue by imposing a mercantile license tax on persons engaging in certain businesses including manufacturing, professions, occupations, trades, vocations, and commercial activities in the City of Philadelphia. . . ." Under this ordinance the city required lawyers to register, pay a registration fee, and pay a tax on a percentage of their gross volume of business; thereupon, "mercantile licenses" were issued to them. The city charter required each ordinance to deal with one subject only and to express that subject in the title. The application of the ordinance …

Labor Law - Organizational Picketing In Industries Not Affecting Interstate Commerce, Arne Hovdesven

Michigan Law Review

Representatives of defendant union approached plaintiff, proprietor of a small liquor store, with information that they planned to initiate an organizational campaign to obtain the membership of the store's three clerks, none of whom were members of any union at that time. Subsequent to this meeting, a picket line of two men was established and was maintained without any acts of violence, for over nineteen months until halted by a permanent injunction issued by the New York Supreme Court, Appellate Division. The union did not make any demands upon plaintiff to sign a contract or to recognize it as bargaining …

Wills - Revocation By Change In Circumstances - Effect Of A Separation And Property Settlement Agreement, Paul R. Haerle

Michigan Law Review

Testator's will, executed in 1944, named his wife executrix and sole devisee. One month before his death in 1952 he entered into a detailed separation and property settlement agreement with her in which, though not referring directly to the will, the wife released any present, future or after-acquired interest in the same realty as was devised in the will. The widow's offering of the will for probate was contested by the heirs. The lower court directed a verdict for the contestants on the ground that the agreement operated to revoke the will. On appeal, held, reversed. Since neither a …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in leading law reviews. The index embraces material published since the last issue of this Review.

Sales - Conditional Sales - Punitive Damages For Forcible Repossession Of Chattel, William G. Cloon, Jr. S.Ed.

Michigan Law Review

Plaintiff purchased a truck under a conditional sales contract which was assigned to the defendant finance company. He drove the truck to the place of business of the defendant to adjust differences between the two parties, but when he attempted to leave after no agreement had been reached, he discovered that the keys had been removed from the truck. When informed that the truck had been repossessed, the plaintiff produced another set of keys but was unable to leave with the truck. The testimony of the plaintiff that an agent of the defendant seized his hand to prevent the unlocking …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Constitutional Law - Right To Effective Assistance Of Counsel In Federal Courts And Waiver Thereof, Richard M. Adams S.Ed.

Michigan Law Review

Indicted for illegal traffic in narcotics, petitioner and his trial counsel allegedly attempted to fabricate an alibi on the false testimony of petitioner's girl friend. The evidence indicated that on several occasions before trial, the girl was invited to the office of petitioner's attorney, given narcotics, and told to memorize certain false testimony to be used in petitioner's defense. Later the girl bad a change of mind and agreed to testify for the government Despite the strenuous objections of defendant's counsel, a description of this alleged fraud on the court was given in the prosecution's opening statement, and the witness …

Constitutional Law - Public Use Requirement And The Power Of Eminent Domain, Donald F. Oosterhouse S.Ed.

Michigan Law Review

Under the District of Columbia Redevelopment Act, an agency was created to redevelop blighted and slum areas. Pursuant to the mode of operation prescribed in the statute, the agency intended to purchase or take by eminent domain all the property in the vicinity of appellant's property. After getting title to all the property the agency was to lease or sell it to private enterprisers to redevelop the area according to the agency's comprehensive plan, which specified definite boundaries for various uses. Appellant brought this action to enjoin the condemnation of his business property, claiming that the statute was unconstitutional because …

Administrative Discretion In The Award Of Federal Contracts, Arthur S. Miller

Michigan Law Review

For our present purposes, the point to be seen is that while this article is inquiring into the question of choice of contractor, the government is largely in control of the other chief attribute of traditional liberty of contract: the terms and conditions of the contract itself. We may thus summarize a first conclusion in the inquiry under consideration in this manner: the government is under no restraint as to many of the terms and conditions of its contracts and may impose those conditions it deems necessary. These are imposed as a result of a statute (an example of …

Labor Law - Right To Unemployment Compensation As Affected By Union-Management Retirement Agreement, Lawrence N. Ravick S.Ed.

Michigan Law Review

Under what circumstances has an employee "voluntarily" left work so as to disqualify him from receiving benefits under an unemployment compensation act? This general question has troubled the courts for a considerable time and has presented itself in a variety of fact situations, e.g., leaving work because of labor disputes and for personal reasons. The courts' interpretation of the meaning of "voluntarily" has generally been influenced by numerous considerations such as the policy behind unemployment compensation, the specific terminology of the statute involved, and the procedure for financing the plans. The specific problem with which this comment deals is summarized …