Law Commons^™

The Supreme Court - October 1958 Term, Bernard Schwartz

Michigan Law Review

The Supreme Court, reads a famous passage by Bryce, "feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken."

The history of the highest Court bears constant witness to the truth of Bryce's statement. Supreme Court action which has moved too far in one direction has always ultimately provoked an equivalent reaction in the opposite direction. Even an institution as august as the high tribunal cannot escape the law …

Constitutional Law - Due Process - Retroactive Application Of Uniform Principal And Income Act, Thomas E. Kauper S.Ed.

Michigan Law Review

The trustee of a trust created prior to the 1957 enactment of the Uniform Principal and Income Act petitioned for instructions as to whether a stock dividend received by it subsequent to the passage of the act should be allocated to principal or income. The Uniform Act provides a rule for the treatment of stock dividends contrary to the judicial rule previously adopted in Wisconsin, and is expressly made applicable to trusts existing on its date of enactment. The county court, finding the act could not be constitutionally applied to trusts created prior to its enactment, ordered the allocation of …

Conflict Of Laws - Custody Decrees - Jurisdiction To Modify And Effect In Sister States, Donald R. Jolliffe S.Ed.

Michigan Law Review

Husband and wife were divorced in Wisconsin in 1956 by a judgment which awarded alimony, custody of the children, and support money to W. The custody decree provided that W be permitted to remove the children to California but that they be allowed to visit H each summer. While H was visiting California in October 1957, he was served in an action commenced by W seeking absolute custody. H returned to Wisconsin and on November 5 asked the Wisconsin court to modify its divorce judgment by awarding custody of the children to him. That court set a hearing and …

Constitutional Law - Due Process- Residence Substituted For Domicile As Basis For Divorce Jurisdiction, Paul Gerding S.Ed.

Michigan Law Review

Plaintiff husband brought a divorce action under an Arkansas statute, which granted state courts divorce jurisdiction on the basis of residence of one of the parties within Arkansas for three months, to terminate a marriage performed in another jurisdiction. Defendant wife, domiciled in California, filed a cross complaint for separate maintenance and attacked the court's jurisdiction to grant the divorce. The lower court held the act unconstitutional in eliminating domicile of one of the parties as a jurisdictional requirement in a divorce action, and, finding that the plaintiff was not domiciled in Arkansas, dismissed the suit. On appeal, held, …

Constitutional Law- Equal Protection - Right To Counsel In Appeal By Indigent Person, Gertrude S. Rosenthal S.Ed.

Michigan Law Review

Following his conviction for assault with intent to commit rape, defendant gave notice of appeal. Declaring he was indigent but with meritorious grounds for prosecuting an appeal, he petitioned the appellate court for the appointment of counsel to present his case by brief and oral argument. No information concerning the defendant's age, education or experience was given by the petition, nor were specific grounds for review alleged. Appeal is a matter of right in criminal cases in the jurisdiction. Held, petition denied, two judges dissenting. No action will be taken until a transcript of the record is filed. The …

Constitutional Law - Import-Export Clause - Power Of State To Tax Foreign Imports Supplying Current Operating Needs, Stevan Uzelac

Michigan Law Review

Appellant imported from five countries iron ore which was stored at its processing plant and drawn upon to fill the current operational needs of the plant. When the ore arrived it was originally stored in stock piles containing a three-month supply. As needed, ores were conveyed from the stock piles to "stock bins," holding one or two days' supply and located in close proximity to the plant, from which the ores were used in the operation of the plant. The State of Ohio collected a personal property tax upon all the imported ore. In a companion case petitioner imported from …

"Federal Question" Jurisdiction -- A Snare And A Delusion, Ernest J. London

Michigan Law Review

Poorly defined criteria in the area of jurisdiction are especially wasteful, generating as they often do expensive and protracted litigation over threshold issues, rather than promoting the speedy determination of lawsuits on their merits. One of the most perplexing exercises in American law practice is the effort to define with certainty the original jurisdiction of the lower federal courts in matters where there is no diversity of citizenship. Although this general head of federal jurisdiction has persistently and pervasively been characterized as "federal question" jurisdiction, it is doubtful whether there is, in fact, original jurisdiction in the lower federal courts …

Constitutional Law - Commerce Clause - Power Of States To Levy Net Income Tax On Businesses Engaged In Soley Interstate Commerce, John C. Peters S.Ed.

Michigan Law Review

Appellant, an Iowa corporation, maintained a sales office in Minnesota and employed salesmen who solicited orders from dealers within that state, though all of its sales contracts were made at the corporation's home office in Iowa. In accordance with a Minnesota statute, a state net income tax, fairly apportioned to the state's share of the corporation's interstate business, was levied upon appellant. In a suit brought by the state to collect this tax, appellant contended that the statute as applied violated the commerce and due process clauses of the Federal Constitution because it taxed the net proceeds of a business …

Constitutional Law - Courts - Martial - Power Of Congress To Provide For Military Jurisdiction Over Retired Servicemen, Stephen B. Flood

Michigan Law Review

A retired naval officer was charged with violations of the Uniform Code of Military Justice based upon acts of sodomy occurring after his retirement. At arraignment he challenged the jurisdiction of the military tribunal on the ground that Article 2(4) of the U.C.M.J., providing for court-martial jurisdiction over retired servicemen, contravenes the Fifth Amendment. The court-martial and the board of review overruled this objection, and the accused was convicted and sentenced. On appeal, held, while jurisdiction is proper, reversed on other grounds for further proceedings. A retired member of the armed forces who is entitled to pay is a …

Constitutional Law - Search And Seizure - Admissibility In A Federal Court Of Evidence Illegally Obtained By State Officers, Robert J. Paley

Michigan Law Review

In response to a call from a citizen whose suspicions had been aroused by the actions of the defendant and a companion, Maryland police unlawfully arrested the companion and searched the premises occupied by him and the defendant. & a result of this search, money was found which had been stolen in the District of Columbia. Although the search was illegal under Maryland law and in violation of the Fourteenth Amendment, this money was used as evidence to convict the defendant of housebreaking and larceny in the District of Columbia federal court. On appeal, held, conviction reversed and remanded …

Labor Law - Labor Management Relations Act - Linking "Employer Free Speech" To No-Solicitation Rule, Barbara Burger

Michigan Law Review

During an organizational campaign the employer prohibited any dissemination of literature on company property and soliciting or campaigning on company time by employees while itself distributing within the plant non-threatening, anti-union literature. General Counsel for the NLRB contended that by this conduct the employer "interfered with, restrained or coerced" employees in their exercise of the right to self-organization. This contention was rejected by the NLRB, but on appeal was accepted by the Court of Appeals for the District of Columbia. On certiorari to the United States Supreme Court, held, reversed, two justices dissenting. Even if an employer could commit …

Constitutional Uniformity And Equality In State Taxation, Wade J. Newhouse

Michigan Legal Studies Series

The method of approach and arrangement of materials are developed during the course of the monograph. Therefore, it is not necessary to repeat them here. The purpose of the study is twofold. First, it should provide background material for constitutional revision. Second, it should aid counsel and court in deciding cases arising under existing constitutional limitations and state legislatures in drafting tax measures in such a way that pitfalls in existing limitations are avoided. The greater part of this monograph was prepared during a two year period from June 1951 to 1953, while I was a Research Assistant with the …

Constitutional Law - Due Process - Dismissal Of State Employees For Refusal To Answer Questions Concerning Membership In Communist Organizations, Roger W. Findley

Michigan Law Review

In companion cases state employees of Pennsylvania and New York were dismissed on grounds of "incompetency" and "doubtful trust and reliability" for refusing to answer questions by superiors concerning membership in communist organizations. Petitioner Beilan also invoked the Fifth Amendment at a hearing by a congressional investigating committee between the time he refused to answer his superior and the time he was dismissed. Appellant Lerner had invoked the Fifth Amendment when he refused to answer the questions asked by city officials. The highest courts of the states upheld the dismissals, making it clear that they were based on refusal to …

Constitutional Law - Criminal Procedure - Successive State Prosecutions For Same Activity, Robert L. Bombaugh

Michigan Law Review

Petitioner suspected of having robbed five persons on a single occasion. was indicted and tried for the robbery of three of them. His sole defense was alibi and he was acquitted when only one of the five victims identified him as the robber. Petitioner was then tried under an indictment for the robbery of a fourth victim. Petitioner interposed the same defense but was convicted at this second trial. The New Jersey Supreme Court affirmed. On certiorari to the United States Supreme Court, held, affirmed, three justices dissenting. Neither the successive trials nor the failure of the court to …

Constitutional Law - Freedom Of Press - Validity Of Motion Picture Licensing Statute, Dean L. Berry S.Ed.

Michigan Law Review

The distributor of the motion picture "Lady Chatterley's Lover" applied to the Motion Picture Division of the New York State Education Department for a license, required by New York law, for public presentation of the film. The application was denied on the ground the film was "immoral" within the meaning of the licensing statute. On review, the Board of Regents approved this determination, but on appeal the state supreme court reversed the Board. A divided court of appeals reversed the supreme court, holding that the contents of the film met the statutory definition of "immoral." On appeal to the Supreme …