Digital Commons Network^™

Divorce For Temperamental Incompatibility, Lester B. Orfield

Michigan Law Review

One not acquainted with American or Continental legal history might conclude that temperamental incompatibility as a ground for divorce is a novel and radical innovation. In fact, such divorces have been possible from the beginning of our history. Legislatures granted divorces until the last quarter of the nineteenth century. 'We are told that the legislature was appealed to in cases that were too flimsy or too whimsical for the courts."

About a century ago and for more than a generation later at least nine states had "omnibus clauses in their divorce statutes broad enough to include incompatibility of temper." No …

Torts-The Discretionary Function Exception In The Federal Tort Claims Act, Howard A. Cole S.Ed.

Michigan Law Review

The doctrine of the immunity of the sovereign in tort has long been the subject of attack by statesmen and legal writers. In response to these attacks and with a view to eliminating the unjust, expensive, and time-consuming method of settling tort claims against the federal government by the private bill method, Congress passed the Federal Tort Claims Act in 1946. The act contained a number of exceptions, the most important of which preserved the immunity doctrine as to any claim arising out of a "discretionary function" of government. A recent decision of the United States Supreme Court illustrates the …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 52, Issue 5 of Michigan Law Review

Labor Law - Use Of Federal Removal Jurisdiction To Defeat State Court Injunction Suits, George B. Berridge S.Ed.

Michigan Law Review

The use of the injunction in labor disputes is by no means a thing of the past. Although equitable relief against union activities is no longer generally available in the federal courts, such relief may often be obtained by application to the courts of the states. In response to state court injunction suits involving parties subject to the National Labor Relations Act, astute union counsel have fairly recently adopted an approach which has thus far achieved some degree of success. This new strategy is simply to remove the case to the appropriate federal district court, where, it is anticipated, the …

Restitution - Reliance Losses In Contract Within Statute Of Frauds, John E. Riecker S.Ed.

Michigan Law Review

Plaintiff, the owner of a seasonal night club, orally agreed to lease the premises for three years to the defendant. The plaintiff had a written lease prepared but it was not executed. Negotiations by letters and telegrams between the parties proved that the document was not a definite integration of their agreement sufficient to satisfy the statute of frauds governing leases of land for periods longer than one year. During this interval of negotiation, plaintiff at defendant's express request had procured a liquor license for the following year at the night club, hired a watchman, retained counsel to draw the …

Taxation-Federal Income Tax-Tax Avoidance By Use Of Preferred Stock ''Bail-Out", Raymond R. Trombadore S.Ed.

Michigan Law Review

In 1946 petitioner received a pro-rata dividend of preferred stock of the distributing corporation, paid on its voting common, the only class of stock then outstanding. The dividend stock was immediately sold to certain insurance companies pursuant to prior informal agreements between the insurance companies, the corporation, and the shareholders. Provision was made for the mandatory redemption of the preferred stock over a period of eight years. The transactions were the culmination of a series of negotiations intended to eliminate the large accumulated surplus of the corporation, in order to avoid the imposition of a penalty surtax thereon. In reporting …

Legislation-Statutory Construction-Validity Of Canon That Statutes In Derogation Of The Common Law Should Be Strictly Construed, Alan Reeve Hunt S.Ed.

Michigan Law Review

Plaintiffs brought suit to recover damages for the death of their adopted son under the Mississippi wrongful death act, which provides that an action may be brought by "the parent for the death of the child." The defendants incorporated in their answer a special plea that the statute does not vest a cause of action in adoptive parents. On appeal from a judgment sustaining this plea, without prejudice to the rights of the deceased's natural parents to bring another action, held, affirmed. The Mississippi wrongful death statute gives a right of action to natural parents only. Boroughs v. Oliver …

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.

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

International Law-Power Of Government-In-Exile To Enact Valid Legislation, John C. Hall S.Ed.

Michigan Law Review

After occupying the Netherlands, Germany confiscated bonds of Netherlands nationals and sold them in the black market. Archimedes, an American national, purchased such bonds from a Swiss firm in violation of the Trading with the Enemy Act and executive freezing order. The bonds were placed in a blocked account in the Federal Reserve Bank. A suit by the Netherlands was removed to the New York federal district court and Archimedes was interpleaded. The Netherlands claimed title under a decree made in exile vesting protective title in the Netherlands government. While holding that the complaint stated a cause of action, the …

Constitutional Law-Legislative-Power To Reduce Grade Of Criminal Offense In Order To Avoid Jury Trial, Chester F. Relyea S.Ed.

Michigan Law Review

A complaint was made in the Municipal Court of Hoboken against the defendant charging that he had willfully committed an assault and battery by spitting on another, in violation of the Disorderly Persons Law, which states: "Any person who commits an assault or an assault and battery is a disorderly person." The defendant moved to dismiss the complaint on the ground that the statute violated his constitutional right to prosecution by indictment and trial by jury. The municipal court denied the motion. On certification to the New Jersey Supreme Court, held, the statute did not wrongfully deny defendant a …

Municipal Corporations-Special Assessments-Method Of Review Where A Special Assessment Is Levied On A Railroad Right-Of-Way, Judson M. Werbelow S.Ed.

Michigan Law Review

Defendant municipality made surface and curb improvements on a street located near plaintiff railroad's right-of-way. Four parcels of land, each containing a house, separated the right-of-way from the street on which the improvements were made. Plaintiff's right-of-way contained a single set of railroad tracks over which plaintiff's trains traveled. Property owners in the improvement district were assessed a total of $13,220.90 for the improvements, $4,715.53 of this special assessment being levied on plaintiff's right-of-way. Plaintiff brought suit to enjoin collection of that part of the special assessment which was levied on its property. The trial court found that the improvement …

Kelsen: Principles Of International Law, S. I. Shuman S.Ed.

Michigan Law Review

A Review of PRINCIPLES OF INTERNATIONAL LAW. By Hans Kelsen.

Labor Law - Union Shop - Discharge Of Employee For Refusal To Accept Union Membership, Sherman A. Itlaner S.Ed.

Michigan Law Review

An employee tendered dues and initiation fee to the union which had a union shop contract with her employer. The union then wrote her a letter welcoming her into membership. She replied that although she had tendered dues and initiation fee she was not joining the union. The union thereupon requested her employer to discharge her pursuant to the provisions of their union shop agreement signed under the 1951 amendment to the Railway Labor Act. After going through the regular grievance procedure the matter came before the arbitrator for .final settlement. Held, the union was entitled to demand the …

Defeasance As A Restrictive Device In Michigan, William F. Fratcher

Michigan Law Review

Quite apart from any question of their validity, the imposition of use restrictions by means of a prohibition was not practicable before the development of equitable remedies because the common law afforded no method of enforcing such a prohibition. One who conveyed land in violation of a prohibition on alienation might attempt to enforce the prohibition by attacking the validity of his own conveyance but one who violated a prohibition on use had neither motive nor method for challenging his own acts. Hence attempts to restrict use by common law devices are necessarily confined to penalty restraints and to limitations …

Future Interests - Restraints On Alienation - Same Rules Applicable To Restraints On Future And Possessory Interests, Chester F. Relyea S.Ed.

Michigan Law Review

Testator devised real estate to his wife for life, remainder to his children, "with the following understanding," that should any child attempt to dispose of his interest before the death of the testator's wife, that child would forfeit his share and it would go to the remaining children. After the death of the testator, but before the death of his widow, one son conveyed away his interest in the property. In a suit for the partition of the real estate devised by the testator; held, on appeal, restraints on the alienation of vested estates in fee simple are against …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 52, Issue 4 of Michigan Law Review

The Seaman As Ward Of The Admiralty, Martin J. Norris

Michigan Law Review

The seaman has a peculiar status in American law. He is in most instances a mature individual, sui juris, and therefore capable of entering into his own contracts but nonetheless his contractual dealings with shipmasters and owners are as carefully watched by our admiralty courts as though he were a minor or a young heir. He is in contemplation of the maritime law a ward of the admiralty courts.

The seaman's position in a legal and economic sense is unique. Singled out by the Congress of the United States as one of a class of workers requiring special consideration …

Advancements: Iii, Harold I. Elbert

Michigan Law Review

Many states have statutes which provide that support, maintenance and education of a child will not be considered an advancement unless the parent intended it as such. The Kentucky statute is typical and it reads in part as follows: " . . . the maintaining or educating or the giving of money, to a child or grandchild without any view to a portion or settlement in life, shall not be deemed an advancement." Most states do not have statutes of that type but by judicial decision reach a result that is in accord with the statutory provision just quoted.

Admininstrative Law - Federal Injunctive Relief Against State Administrative Orders, John C. Hall S.Ed.

Michigan Law Review

The increasing tendency of state legislatures to establish administrative agencies to regulate various specialized fields has created serious new problems for both courts and lawyers. In dealing with state administrative agencies, the federal courts have been confronted with the dual problem of protecting the individual's constitutional rights and at the same time respecting the prerogatives of the states. The result has been the development of a "hands-off" policy in the federal courts, leaving the initial determination of rights to the state courts, and limiting the use of the federal injunctive power. The purpose of this comment is to indicate the …

Constitutional Law - Censorship Of Obscence Literature, Donald M. Wilkinson, Jr. S.Ed.

Michigan Law Review

The right to a free expression of ideas, without interference from governmental authorities, is inherent in the very nature of a democracy. On the other hand, it is also clear that the greater interests of the state at large will conflict with certain forms of expression, and in such circumstances obviously the former must prevail. It is the purpose of this comment to discuss the constitutional limitations on the governmental suppression of literature on grounds of obscenity.

Regulation Of Business - Proof Of Seller's Costs In Robinson-Patman Act Buyer Proceedings, Arthur M. Wisehart S.Ed.

Michigan Law Review

The purposes of this comment are to analyze the holding of the Court in the Automatic Canteen case and to relate the language of the opinion to the more general problem of defining the extent of buyer responsibility under section 2(f). As a preliminary matter, however, it is necessary to examine the pertinent statutory provisions. Section 2(f) of the Robinson-Patman Act makes it unlawful for buyers in interstate commerce" ... knowingly to induce or receive a · discrimination in price which is prohibited by this section." In other words, it prohibits buyers from knowingly inducing or receiving the benefit of …

Agency - Apparent Authority Of Sales Agent, William D. Keeler

Michigan Law Review

Defendant's agent, a consignee of automobiles for sale, received from plaintiff a used truck, and agreed to apply the proceeds from the sale of the truck to the purchase price of a new automobile, to be sold and delivered to plaintiff when available. Defendant's agent sold the truck and absconded with the proceeds from such sale. Plaintiff sued for the value of the truck, and the lower court rendered judgment in his favor. On appeal, held, affirmed. The acts of the agent bound the defendant, although the agency contract gave only express authority to sell new automobiles. Correa v. …

Conflict Of Laws - Full Faith And Credit - Foreign Custody Decrees, Theodore J. St. Antoine S.Ed.

Michigan Law Review

Husband and wife were domiciled in Wisconsin. When marital troubles developed, the parties agreed that the wife should. take their children to Ohio and. there decide on her future action. Shortly afterward the wife informed the husband. she was not returning. The husband secured. a divorce in Wisconsin, with the decree purporting to award. him custody of the children subject to visitation rights in the wife. Service on the wife was · obtained by publication, but she made no appearance in the Wisconsin proceedings. After one of the visits of the children, the wife refused. to return them and. the …

Constitutional Law - Civil Rights - Right Of Negro To Vote In State Primary Elections, John C. Hall S.Ed.

Michigan Law Review

The Jaybird Democratic Association was formed in Fort Bend County, Texas, in 1889. Membership was open to all white voters in the county. The association was not governed by the state statute regulating political parties. Candidates nominated by the Jaybird Party entered the Democratic county primary as individuals, not as Jaybird candidates, but those candidates won both the Democratic primary and the general election with only one exception in the entire history of the Jaybird Party. Terry, a Negro, sought a declaratory judgment and injunction permitting Negroes to vote in the Jaybird primary. The federal district court ruled that the …

Corporations - Officers And Directors - Liability For Realizing Less Than Full Value From Sale Of Corporate Assets On Dissolution, Howard N. Thiele, Jr.

Michigan Law Review

The defendants were directors, officers, and sole stockholders of a corporation engaged in the business of wholesaling electrical supplies. The business gradually declined until the corporation was no longer able to meet maturing obligations, even though expenses had been cut to a minimum. After trying unsuccessfully to borrow more money the defendants decided to wind up the business. Faced with several possible methods of liquidation, they chose to sell the assets at an open auction sale. The net proceeds of the sale were about $20,000, while the cost of the inventory had been at least $60,000. The creditors, through the …

Evidence - Restrictive Interpretations Of Statute Intended To Liberalize Admission Of Statements By Persons Since Decesed, Richard W. Young

Michigan Law Review

Defendant, while driving an automobile, struck the plaintiff's decedent, a pedestrian, causing injuries which ultimately resulted in her death. An action was brought by the plaintiff as administrator of the estate under a statute giving the right to recover for wrongful death. It was contended that statements made by the deceased to members of her family in the hospital one to two weeks after the injury, such as ''If she had stayed on her own side of the road, she'd never hit me," were admissible under a South Dakota statute purporting to make statements of deceased persons receivable in actions …

Federal Procedure - Appellate Practice - Duty Of The Court Of Appeals To Grant Rehearings En Banc, Raymond R. Trombadore S.Ed.

Michigan Law Review

In a suit for accounting, petitioners were denied relief in the district court and a division of the Court of Appeals for the Ninth Circuit affirmed by a two-to-one vote. Petitioners then applied for a rehearing before the court of appeals en bane. With one dissent, the rehearing was denied by the division, and the request that the rehearing be en bane was stricken as "being without authority in law or in the rules or practice of the court.'' Petitioners moved to vacate the order denying the request for a rehearing en bane on the ground that such a request …

Constitutional Law - Due Process - Scope Of Inquiry In Habeas Corpus Petitions From Military Prisoner, Eugene Alkema

Michigan Law Review

Petitioners, military personnel, were convicted by courts martial of rape and murder. After exhausting military appellate remedies, they petitioned federal civil courts for writs of habeas corpus on the ground that they had been convicted in proceedings denying them basic constitutional rights. The petitions were denied. On appeal, held, affirmed, two justices dissenting. When the record shows that military courts have fairly considered all of the allegations of the petitioners and have found no denial of constitutional rights, civil courts in habeas corpus proceedings will not hear evidence on the merits of the allegations. Burns v. Wilson, 346 …

Contracts - Consideration - Effect Of Option To Withdraw Government Surplus Property From Sale, Arthur M. Wisehart S.Ed.

Michigan Law Review

The Office of Surplus Property accepted defendant's bid for a quantity of sodium carbonate. Submitted on the appropriate government form, the bid was subject to a condition which gave the government " . . . the right to withdraw from sale any property prior to the removal thereof without incurring any liability except to refund to the purchaser any amount paid with respect to the said property." Although the sodium carbonate had not been withdrawn from sale, the defendant refused to perform his promise to buy it. The government brought an action for damages, and the defense was that no …