Law Commons^™

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

Law's Territory (A History Of Jurisdiction), Richard T. Ford

Michigan Law Review

Pop quiz: New York City. The United Kingdom. The East Bay Area Municipal Utilities District. Kwazulu, South Africa. The Cathedral of Notre Dame. The State of California. Vatican City. Switzerland. The American Embassy in the U.S.S.R. What do the foregoing items have in common? Answer: they are, or were, all territorial jurisdictions. A thesis of this Article is that territorial jurisdictions - the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions - are relatively new and intuitively surprising technological developments. New, because until the development of modern cartography, legal authority generally followed …

From Blackstone To Bentham: Common Law Versus Legislation In Eighteenth-Century Britain, James Oldham

Michigan Law Review

A Review of The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain by David Lieberman

Crime And The Courts In England 1660-1800, Frank C. Shaw

Michigan Law Review

A Review of Crime and the Courts in England 1660-1800 by J.M. Beattie

Preventative Pretrial Detention And The Failure Of Interest-Balancing Approaches To Due Process, Albert W. Alschuler

Michigan Law Review

This article, echoing Highmore's treatise of 1783, maintains that neither a legitimate nor a very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior. Both the Supreme Court's neglect of this issue and Congress' similar neglect in the preventive detention provisions of the Federal Bail Reform Act of 1984 reveal the extent to which cost-benefit analysis has captured American law and threatened core concepts of individual dignity.

The article does not oppose all forms of preventive pretrial detention. To the contrary, it recognizes that the detention …

The Unnecessary Doctrine Of Necessaries, Michigan Law Review

Michigan Law Review

This Note argues that neither the traditional nor the modem necessaries doctrines are justifiable in contemporary society. Part I investigates the practical effects of both the traditional and contemporary necessaries doctrines and demonstrates that neither is an effective mechanism for providing support to a needy spouse. While a more successful support remedy might be devised to replace modem and traditional versions of the necessaries rule, Part II shows that yet another reformulation would not be worthwhile because the theoretical underpinnings of the doctrine are faulty. There is no persuasive evidence to establish the existence of the narrow support problem the …

Equity, Due Process And The Seventh Amendment: A Commentary On The Zenith Case, Patrick Devlin

Michigan Law Review

The seventh amendment to the United States Constitution requires that "[i]n Suits at common law . . . the right of trial by jury shall be preserved." What exactly is a suit at common law? When the amendment was enacted in 1791, there was no law that was common to all the states. In 1812 Supreme Court Justice Story, in a Circuit Court ruling, held that the common law alluded to was the common law of England, "the grand reservoir of all of our jurisprudence." This means that when today an American judge has to decide whether in any set …

Private Trusts For Indefinite Beneficiaries, George E. Palmer

Michigan Law Review

Recently, in McPhail v. Doulton (In re Baden's Deed Trusts), the House of Lords reached a decision that marks an important change in the English law of trusts which could be important also for American law. It held that there is a single test of validity for private trusts and for powers of appointment where the issue is whether the beneficiaries of the trust or the objects of the power are sufficiently definite, and that this single test is that applicable to powers of appointment. For nearly 170 years, since the decision in Morice v. Bishop of Durham, …

Statute Of Frauds--The Doctrine Of Equitable Estoppel And The Statute Of Frauds, Michigan Law Review

Michigan Law Review

In 1677 the English Parliament enacted the first Statute of Frauds to prevent "many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury." The trial system then existing in England was forced to depend upon unreliable juries, and relied upon few rules of evidence besides the rule treating parties to an action as incompetent witnesses. Thus, in passing the Statute, Parliament sought to minimize the abuses possible under the trial system by providing that virtually no important contract would be enforceable unless reduced to writing.

Turner: The Law Of Trade Secrets, John Stedman

Michigan Law Review

A Review of The Law of Trade Secrets. By Amedee E. Turner.

Wu: Fountain Of Justice, Thomas E. Davitt S.J.

Michigan Law Review

A Review of Fountain of Justice. By John C.H. Wu.

The Wills Branch Of The Worthier Title Doctrine, Joseph W. Morris

Michigan Law Review

It is the purpose of this article to examine the history and origin of the wills branch of the worthier title doctrine, to ascertain the extent of its application and the manner of its application, to determine the legal consequences flowing therefrom, and to consider the desirability of its continued existence.

Custom As A Source Of English Law, E. K. Braybroolte,

Michigan Law Review

When writers on jurisprudence assert that custom is a source of law their primary meaning seems to be that in any given case a course of conduct persisted in by all or most of the members of a society engenders a rule of law enjoining the continuance of that course of conduct. This, for example, appears to be the burden of Dr. C. K. Allen's discussion of custom in his Law in the Making. He sums up the operation of custom in this sphere by saying that "the thing done" (semble, by all or most members of …

Damage Liability Of Charitable Institutions, Carl Zollman

Michigan Law Review

The question of the liability of charitable institutions to actions for damages presents great difficulties. This is not due how- -ever to a lack of cases. The question has peculiarly "engaged the attention of the bench and bar of the country. The problem has been scrutinized from every conceivable viewpoint. The arguments for and against have well nigh been exhausted, and little, if anything, new remains to be advanced".' In their opinions the courts have frequently gone back to certain English cases disregarding the points decided but stressing certain dicta which have been uttered by the judges which decided them. …

Doctrine Of Bad Faith In The Law Of Negotiable Instruments, George W. Rightmire

Michigan Law Review

This rule is now enacted in all but two of the states of the United States; the history of its development and of its application since it became undisputed is well illustrative of the process of the common law system, and this discussion is undertaken for the purpose of discovering the general principles which a trial court should have in mind when charging a jury in a case involving the application of this doctrine.

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Arrest - Right of Officer to Kill when Serving Warrant for Misdimeanor- Defendant-had a warrant for the arrest of one White, charging him with being drunk and disorderly. When the defendant served the warrant, White advanced upon him with an open knife. Although the defendant had a chance to escape through an open door, he shot and wounded White. In the prosecution of defendant for shooting and wounding White, it was held that the defendant was justified in shooting him. State v. Dunning (N. C., igig), 98 S. E. 530

Note And Comment, Ralph W. Aigler, Charles L. Kaufman, Edwin D. Dickinson, Lester S. Hecht, Leon L. Greenbaum

Michigan Law Review

Judicial Reform in Michigan - The legislature which has been in regular session this year has enacted a measure enlarging the scope of judicial action in a way likely to add very greatly to the iusefulness of the courts. This law authorizes courts of record to make binding declarations of the rights of parties prior to the commission of a wrongful act

Note And Comment, Edwin C. Goddard, Ralph W. Aigler, Victor H. Lane

Michigan Law Review

Wills - Revocation by Judicial Legislation - Wills and their revocation as we kno* them are peculiarly the result of the actions and reactions of our common and statute law. We are sufficiently familiar with statutes, declaratory of the common law, in derogation thereof, and creating entirely new principles of law. We also know law the result of no legislative act. Whateyer may or may not be admitted about court-made law, we see the undoubted fact that the great body of our law is the outgrowth of decisions applying to new conditions principles of law found in analogous cases, whereby …

Forms Of Anglo Saxon Contracts And Their Sanctions, Robert L. Henry Jr

Michigan Law Review

Including (a) Warranty of Title, and (b) Warranty of Quality. Perhaps the most primitive commercial transaction affecting legal rights was the executed barter; in a more 'advanced state when money had been introduced, the executed sale.

Forms Of Anglo Saxon Contracts And Their Sanctions, Robert L. Henry Jr

Michigan Law Review

The several forms of contract will be taken up in the following order: I. the Surety Contract, including (a) the creditor's rights against the debtor, (b) the creditor's rights to sue the surety, and (c) the surety's right of reimbursement; 2. the Warranty Contracts, including (a) warranty of title, and (b) warranty of quality; 3. the Contract of Court Record; 4. the Coitract of Plighted Faith; 5. the Pledge Contract; 6. the' "Delivery-Promise"; 7. the Written Contract; and 8. the "Earnest" Contract.

Mild Punishments, Robert Mcmurdy

Michigan Law Review

If life, freedom, or hope be taken from man, he is ashes. Therefore we ought not to take away any of them lightly. But some, restraint or punishment is necessary. We often miss our aim, however,'by prescribing punishments that are too severe, whereupon human nature revolts, so that it is "impossible to combine certainty with severity," a lesson we have long since learned from the experience of England.

The Attaint, John M. Zane

Michigan Law Review

The assize of novel disseisinoriginally lay against the disseisor in possession in favor of the disseisee, and was soon extended to the heir of -the disseisee, but not against the heir or grantee of the disseisor. But the disseisor might be dead or might have conveyed the land, and in such a case the disseisee would be driven to the writ of right with iis delays and chance of battle. But the cases where the defendant had come into possession under a lawful title which was limited in time and had ceased to exist, i.. e., cases where there was …

The Attaint, John M. Zane

Michigan Law Review

The practice of attainting a jury was the method by which for centuries the English law corrected an erroneous finding of fact by the body of men who, in course of time, came to be called a jury. Today this necessary corrective of judicial administration is very inadequately performed by the judge or judges presiding over the trial. The proceeding is now called a motion for a new trial. The new trial is inadequate for the reason that it does not, as did the attaint, substitute a correct verdict for the one given. It merely reverses or sets aside the …