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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 60, Issue 2 of Michigan Law Review

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 …

Federal Procedure- Pre-Trail Disclosures- Sanctions Available To Enforce Pre-Trial Orders, John M. Price

Michigan Law Review

Petitioner, plaintiff in an action in federal district court, was ordered under Federal Rule 16 to submit pre-trial statements setting out the facts of the case, his damages, his witnesses and exhibits, and his legal theories of recovery. His counsel filed statements which were adjudged insufficient, and a pre-trial order was entered precluding petitioner from offering at trial any testimony by witnesses other than himself and his wife, or any evidence concerning liability in negligence or breach of warranty, and limiting his exhibits and evidence of damages. On petition for mandamus to set aside the preclusion order, held, granted, …

Insurance Law- Business And Investment Limitations - Authority Of Foreign Life Insurer To Acquire A Fire And Casualty Subsidiary, G. E. Oppenneer

Michigan Law Review

Plaintiff, a Connecticut life insurer, proposed to acquire a controlling stock interest in a fire and casualty insurance company. The New York Superintendent of Insurance, supported by the state Attorney General, advised that plaintiff would thereby disqualify itself from doing business in the state under the business and investment limitations of the Insurance Law. Plaintiff sought a declaratory judgment that its proposal was permissible. The supreme court denied plaintiff's motion for summary judgment, granted defendant's cross-motion and dismissed the complaint; the appellate division affirmed. On appeal, held, reversed, three judges dissenting. The legislature did not intend to extend the …

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 …

Uniform Commercial Code - Motor Vehicles - Filing Requred To Perfect Security Interests, David Finkelman S.Ed.

Michigan Law Review

In 1958 Kentucky enacted the Uniform Commercial Code providing for the perfection of security interests in chattels by filing a financing statement, and a motor vehicle Certificate of Title Act requiring liens to be noted on the registration certificate covering the vehicle. The Code excludes from its filing provisions security interests in property subject to a Certificate of Title Act and provides that such interests can be perfected only by compliance with the requirements of the title act. However, unlike the typical Certificate of Title Act, the Kentucky title act does not provide that the notation of the lien on …

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.

Taxation - Federal Income Tax - Deductibility Of Seminar Cruise As Business Expense, Thomas W. Van Dyke

Michigan Law Review

Petitioner, a physician, participated in a postgraduate medical seminar held aboard a passenger ship during an eighteen-day cruise of the Mediterranean. A number of hour-long lectures followed by discussion periods were held on the ship during each of the six or seven days it was at sea and occasionally while in port; additional study was not required. Petitioner spent most of his time in leisurely activities aboard ship and in sightseeing. All expenses of the course and cruise were included in one charge which petitioner claimed as an ordinary and necessary business expense under section 162 (a) . The Commissioner …

International Law - Sovereignty - Judicial Examination Of Foreign Act Of State Under International Law, Lawrence Ray Bishop

Michigan Law Review

In retaliation for a reduction of its sugar quota by the United States the Cuban government nationalized certain Cuban enterprises in which United States citizens held majority interests. Defendant had earlier contracted to purchase a shipment of sugar from one of the nationalized Cuban corporations. To obtain permission to remove the shipment from Cuban waters, defendant was forced to execute another contract with plaintiff's assignor, an agent of the Cuban government, which agreement embodied terms identical to those in the original contract with the exception that payment was to be made to plaintiff's assignor. Upon learning that a receiver of …

Criminal Law-Involuntary Manslaughter- Presence As A Pre-Requisite To Liablity For Permitting An Incompetent To Drive An Automobile, Peter D. Byrnes S. Ed

Michigan Law Review

Defendant gave his car keys to an intoxicated friend and permitted him to operate the vehicle while the defendant was at home in bed. As he was driving on the wrong side of the highway, the friend was involved in a head-on collision which resulted in the death of the drivers of both vehicles. Defendant was convicted of involuntary manslaughter and of the misdemeanor of allowing an intoxicated person to operate his automobile. On appeal, held, conviction of manslaughter reversed. Although one who permits an intoxicated person to drive his car is guilty of a misdemeanor, he cannot be …

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.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 60, Issue 1 of Michigan Law Review

Church And State: Cooperative Separatism, Paul G. Kauper

Michigan Law Review

Nothing is better calculated to stimulate argument, arouse controversy, excite the emotions and even produce intense visceral reactions than a discussion of church-state relations. Always a subject of lively interest, it has received added attention and emphasis in recent months. Perhaps at no time in at least the modem era of American history have the questions of the proper relationship between religion and government been more thoroughly publicized and explored, and the issues more widely debated, than during the period beginning with the presidential campaign of 1960.

State Control Of Radiation Hazards: An Intergovernmental Relations Problem, Samuel D. Estep, Martin Adelman

Michigan Law Review

The purpose of this article is to set forth the nature of the intergovernmental problem. This involves an analysis of the extent and limitations of federal power, a determination of congressional intent on the issue of federal pre-emption, and an appraisal of the steps now being taken by the Atomic Energy Commission to turn over part of the radiation safety regulatory program to the states.

Bankruptcy - Summary Jurisdiction - Filing Proof Of Claim As Basis For Money Judgment On A Counterclaim In Favor Of The Trustee, Jerome M. Salle S. Ed

Michigan Law Review

Appellant filed a proof of claim with the trustee in bankruptcy for unliquidated damages for an alleged breach of contract by the bankrupt. In response, the trustee filed a petition with the bankruptcy court for an order disallowing the appellant's claim and for a money judgment against appellant for a breach of the same contract. The district court affirmed the referee's denial of appellant's claim and judgment in favor of the trustee. On appeal, held, affirmed. Filing proof of claim gives the bankruptcy court jurisdiction not only to hear, but to grant the trustee's petition for affirmative relief on …

Constitutional Law-Eminent Domain-Master Flight Plan As A Taking Of Land Under Approach Area To Municipal Airport, Ralph L. Wright S. Ed

Michigan Law Review

Plaintiff owned land adjacent to the Greater Pittsburgh Airport which lay under an approach area for one of the runways. Allegheny County, in compliance with rules and regulations of the Civil Aeronautics Authority, drafted a "Master Plan," approved by the CAA, which showed the approach area over part of plaintiff's property. Plaintiff sued to recover damages from the county, owner and operator of the airport, alleging an appropriation of his land because of the substantial interference with its use and enjoyment caused by flights at low altitudes above his land during landings and take-offs. Upon an award of damages by …

Evidence- Hearsay-Scope Of Federal Rule 43(A), David K. Kroll S. Ed

Michigan Law Review

The clocktower of plaintiff county's courthouse buckled and collapsed into the courtroom below. Charred timbers were found in the wreckage. Several residents reported that they saw lightning strike the tower five days before the collapse. Plaintiff carried insurance for loss by fire or lightning, and sued the insurers when they denied liability. Defendant claimed that the tower collapsed of its own weight because of faulty design, deterioration, and overloading. To account for the charred timbers defendant introduced into evidence a fifty-eight-year-old newspaper article from the files of the city newspaper describing a fire in the courthouse during its construction. The …

International Law- Criminal Law- Jurisdiction Over Aliens For Crimes Committed Abroad, Frank G. Reeder S. Ed

Michigan Law Review

Six alien defendants were convicted under a federal statute for knowingly making false statements before United States consular officials abroad in order to procure nonquota immigrant visas. Their motion to dismiss this count on the ground that the district court lacked jurisdiction to indict and try aliens for crimes committed outside the territorial limits of the United States was denied. On appeal, held, affirmed. As a necessary incident to its sovereignty, the United States is competent to punish aliens apprehended within the United States for acts against its sovereignty committed outside the country. Rocha v. United States, 288 …

Taxation- Federal Income Tax-Status Of Stock-For-Stock Exchange Where Boot Is Involved, Roger B. Harris S. Ed

Michigan Law Review

Taxpayer was the sole stockholder of International Dairy Supply Company. In 1952, Foremost Dairies, Inc. acquired from taxpayer all his stock in Supply Company in exchange for 82,375 shares of Foremast's common stock and 3,000,000 dollars cash. Taxpayer reported as gain from the transaction only the 3,000,000 dollars "boot" received, less allowable expenses. The Commissioner determined a deficiency of 278,823 dollars, asserting that the nonrecognition provision of the 1939 Code counterpart of section 356 (a) (1) was inapplicable and therefore taxpayer's entire gain realized on the disposition must be recognized. The Tax Court upheld taxpayer's contention that by virtue of …

Smith: Lawyer, William M. Beaney

Michigan Law Review

A Review of Lawyer. By Talbot Smith.

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.

Wills-Revocation By Act To The Document-Effect On Codicil, Roger W. Kapp S. Ed

Michigan Law Review

The term codicil generally refers to a supplement to a will by which the testator alters or adds to his will. It may be nominated a codicil by the testator or held to be one by judicial construction. If it is to be operative at all, a codicil must of course be executed with all the formalities required by the statute of wills. But, just as it is difficult to describe a codicil without reference to a primary testamentary document, so also is it difficult to determine the status of an otherwise valid codicil when the will it supplements has …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 59, Issue 8 of Michigan Law Review

Bills And Notes-Payees By Impersonation And By Assumption Of A Name-Drawer's Intent And Commercial Policy, Stuart S. Gunckel S. Ed.

Michigan Law Review

Consider the following scheme for fraudulently obtaining money: A, a stranger to D, personally appears before D, represents himself as B and requests a loan. There is an existing person named B. For D's security a mortgage is produced in the name of B, but it has actually been penned by A. A check of the land records by D verifies that the land described in the mortgage is in fact owned by B. D, having satisfied himself as to the existence of B, draws a check payable to the …