Law Commons^™

Federal Civil Procedure-Federal Rule 16-Definition Of Issues By The Pre-Trial Judge, F. Bruce Kulp Jr.

Michigan Law Review

Plaintiff instituted a civil antitrust suit against defendant in 1956. After numerous pre-trial conferences, the parties reached agreement as to the definition of only some of the issues. On other issues, however, the parties tendered different versions and were unable to reach an agreement. In a progress memorandum, the court issued a pre-trial order adopting defendant's version of the issues and rejecting the version proposed by plaintiff. The court reasoned that, under Federal Rule 16, it has the authority to adopt the formulation of issues proposed by one of the parties even though the other party is not in complete …

Civil Procedure-Trial Practice-Introduction Of Inadmissible Evidence To Cure Improper Argument By Counsel, Arthur M. Sherwood

Michigan Law Review

In a suit to recover damages for wrongful death arising out of an automobile accident, plaintiff's counsel offered in evidence the official report of a police officer, which included the officer's opinion that defendant's parked car had contributed to the collision. Defendant's objection to this evidence was sustained on the grounds that the report was hearsay and that it set forth a conclusion which only the jury could draw. Defendant's counsel, during his summation, asserted that no police officer had said that defendant's car had in any way caused the accident. The court, sua sponte, admitted into evidence the officer's …

Reflections On The Nature Of Labor Arbitration, R. W. Fleming

Michigan Law Review

The use of arbitration as a means of settling labor-management disputes has increased steadily in the past twenty years. Recent decisions of the Supreme Court have underlined the importance of the process. The natural tendency is to compare labor arbitration with the court system as an adjudicatory process. There are, however, significant differences between the two, and this needs to be better understood.

An intelligent evaluation of the differences, and of the labor arbitration tribunal in general, can be made only after an exploration of its origin and history, and after some consideration of the kinds of cases which are …

Ripeness And Reviewable Orders In Administrative Law, Louis L. Jaffe

Michigan Law Review

The requirement of "ripeness" as a condition for judicial review is not so much a definable doctrine as a compendious portmanteau, a group of related doctrines arising in diverse but analogically similar situations. In its most general sense ripeness is a requirement not of the administrative action to be reviewed but of the judicial controversy between the plaintiff and the agency. Consider the case where an agency has gone no further than to threaten a certain action which the plaintiff in an equity or declaratory proceeding claims would be contrary to law: here, in all strictness, the controversy concerns …

Evidence-Hearsay-Exclusion Of Self-Serving Declarations, John M. Price S.Ed.

Michigan Law Review

One of the most venerable of all legal principles is the evidentiary rule excluding hearsay. This rule, which was first espoused by the English courts in the sixteenth century, arose when it became apparent that there was an inherent danger of untrustworthiness in a witness's uncorroborated recital of a prior declaration made outside the courtroom. The courts gave several reasons for regarding hearsay as untrustworthy. First, these statements, offered into evidence for the truth of the matter asserted, were not made under oath. Secondly, objection to such testimony was raised because the trier of fact had no opportunity to pass …

Future Interests-Powers Of Disposition-Some Practical Considerations In Using Powers Of Disposition For Testamentary Purpose, Lawrence Ray Bishop S.Ed.

Michigan Law Review

Testators, in an effort to retain control of their property from beyond the grave, have often developed schemes by which they attempt to alter the normal devolution of title to, and the utilization of, that property by their beneficiaries. One of the primary motives giving rise to such schemes is the desire to give the immediate object of a testator's bounty a great deal of flexibility and control in the use of the testamentary property, while reserving to the testator the possibility of controlling its further disposition upon the death of such person. The most theoretically suitable device by which …

Taxation-Federal Estate Tax-Tax Consequences Of A Gift In Contemplation Of Death By A Joint Tenant Or A Tenant By The Entirety, Fredric L. Smith S.Ed.

Michigan Law Review

This comment will examine the foregoing problem in light of several recent cases which have cast doubt on the presently conceived relationship between section 2035 and section 2040.

Bankruptcy-Proof And Allowance Of Claims-Reopening Of Estate To Allow Creditors To Reach Tenancy By The Entirety, Robert V. Seymour

Michigan Law Review

Husband (H) and wife (W) executed joint, unsecured promissory notes to each of two creditors, a realty company, and a bank. H, in default on both notes, filed a voluntary petition in bankruptcy. The petition listed both noteholders as creditors; in addition, the schedule of assets noted that an interest in an estate by the entirety held by the bankrupt was not an asset of the bankrupt estate, since under state law it was not subject to the claims of creditors of only one spouse. After the first meeting of creditors, an order of discharge …

Courts-Scope Of Authority-Sterilization Of Mental Defectives, William R. Warnock

Michigan Law Review

Respondent, age nineteen, appeared before the probate court of Muskingum County, Ohio, upon an affidavit filed by her mother alleging the child to be feeble-minded and in need of medical treatment. Results of psychological tests were presented at the hearing, revealing that respondent had an intelligence quotient of thirty-six and was therefore a feeble-minded person within the statutory definition. Respondent had had one illegitimate child, for whom she was unable to provide even rudimentary care or financial support, and was physically capable of bearing more children. Taking judicial notice that the state mental hospitals were then overcrowded and unable to …

Evidence-Hearsay-Admissbility Of Accident Reports Under The Federal Business Records Act, Thomas G. Dignan Jr.

Michigan Law Review

The United States, as assignee of a civilian seaman's claim, brought an action against the defendant for injuries received when the seaman slipped on a walkway which the defendant had contracted to maintain in good repair. At the trial plaintiff sought to introduce into evidence a report compiled by the seaman's superior, such report being required to accompany the seaman's claim for compensation from the Government. Admission of the report under the Federal Business Records Act was denied, and the Government's case was thereby materially weakened. Judgment was entered on a jury verdict for the defendant. On appeal, held, …

Insurance-Variable Annuities-Application Of Investment Company Act Of 1940, William C. Brashares

Michigan Law Review

Anticipating the sale of variable annuity contracts as a part of its regular business, Prudential, a life insurance company, applied to the Securities and Exchange Commission for complete exemption from the requirements of the Investment Company Act of 1940. Prudential claimed that it qualified for exemption as an insurance company under the definition of "insurance company" in the Investment Company Act ("a company ... whose primary and predominant business activity is the writing of insurance . . . and which is subject to supervision by the insurance commissioner or a similar official or agency of a state"). In the alternative, …

Grzybowski: Soviet Legal Institutions: Doctrines And Social Functions, Isaac Shapiro

Michigan Law Review

A Review of Soviet Legal Institutions: Doctrines and Social Functions. By Kazimierz Grzybowski.

Condominium--Home Ownership For Megaopolis?, John E. Cribbet

Michigan Law Review

The past year, 1962, witnessed no let up in the cold war between East and West. In the race for the conquest of space, in the battle of national rates of economic growth, in the propaganda struggle to fix the responsibility for nuclear testing, in the trial of strength over Cuba, and in countless other areas, each bloc leader continued to measure achievement against the rival's successes or defeats. The cold war is a deadly business and produces little to warm the cockles of a man's heart, but, if only the threat of nuclear destruction could be averted, there is …

Evidence-Confessions-Admissiblity Of A Subsequent Confession Under The Mcnabb-Mallory Doctrine, Ira J. Jaffe S.Ed.

Michigan Law Review

Defendant was indicted for first degree murder and convicted of manslaughter in the Federal District Court for the District of Columbia. Defendant had willingly directed the police to the victim's body and voluntarily signed a written confession during a period of thirty-four hours detention prior to arraignment. At the arraignment defendant was informed of his rights and indicated that he was aware of them; in addition, the preliminary hearing was postponed in order to provide him opportunity to obtain counsel. Twenty hours after his arraignment the defendant once again voluntarily confessed while giving a police officer instructions as to the …

Federal Civil Procedure-Federal Rule 12(E): Motion For More Definite Statement- History, Operation And Efficacy, Stefan F. Tucker S.Ed.

Michigan Law Review

The purpose of this comment is to trace the history of the motion for more definite statement as provided for in the Federal Rules, analyze the reasons for granting or denying the motion, and propose an answer to the question of whether Rule 12(e) is necessary, or superfluous, as part of modern federal pleading procedure.

Administrative Law-Primary Jurisdiction-Availability Of Common-Law Reparations Remedy Following Commission Finding Of Unreasonable Practice Under The Motor Carrier Act, James D. Zirin

Michigan Law Review

The petitioner delivered goods to respondent, a common carrier by motor vehicle, for shipment from Buffalo, New York, to New York City, with the route of shipment left unspecified. The goods were shipped over the carrier's interstate route at a higher tariff filed with the Interstate Commerce Commission rather than over its intrastate route at the lower tariff filed with the New York Public Service Commission. Alleging causes of action under the Motor Carrier Act and at common law, the petitioner brought a postshipment action in a federal district court seeking reparation of the difference paid. The court, after a …

Patent Law-Reissue Patents-Application Of Public Use And Sale Bar: Section 102(B), Robert V. Seymour

Michigan Law Review

Patentee applied for an original patent, defining a shelving unit; the patent was issued twenty-two months subsequent to the date of application. Less than two months later, application for a reissue patent was filed, describing and claiming a change in the dimensions of a given surface from "greater than one-half' to "greater than one-third" the height of a prescribed standard. The reissue patent was awarded eight months after the application for reissue. Patentee subsequently assigned the reissue to plaintiff corporation. Plaintiff brought suit for infringement, and defendant moved for summary judgment on the ground that the reissue was invalid because …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Prayer, Public Schools And The Supreme Court, Paul G. Kauper

Michigan Law Review

A more complete understanding of the case, while doing much to temper the initial outburst of disapproval, did not by any means dispel all criticism of the decision or allay all the apprehensions aroused by it. Believing that the Supreme Court's opinion was premised on a fundamentally erroneous interpretation of the establishment clause of the first amendment, Bishop James A. Pike headed a movement to amend the Constitution so as to restore what he regarded as the true and intended meaning of its pertinent language. In the meantime, the Supreme Court has agreed to review and has heard argument on …

The EngelCase From A Swiss Perspective, F. William O'Brien

Michigan Law Review

On June 25, 1962, the Supreme Court of the United States held that the State of New York, by using its public school system to encourage recitation of a prayer during classroom hours, had adopted a practice wholly inconsistent with that clause of the first amendment, applicable to the states by virtue of the fourteenth amendment, which prohibits laws respecting an establishment of religion. The opinion of the Court, written by Mr. Justice Black for himself and four other Justices, is interesting in that he rests the Court's decision exclusively upon the establishment clause. In previous decisions, the Court had …

Civil Procedure-Trial Practice-Special Verdict Question That Can Be Decisive Only If Answered Negatively, Samuel J. Mckim Iii

Michigan Law Review

Plaintiff was severely burned by the explosion of a can of "liquid bug killer" allegedly sold to him by defendant. Four issues of fact were raised: whether defendant sold the can in question to plaintiff, the former's negligence, the latter's contributory negligence, and the amount of the damages. The trial judge submitted to the jury, over the objections of both parties, only the first issue, in the form of a single question of fact. The jury, having served three days past the end of its term and one hour past the normal time for adjournment, was instructed that a finding …

Insurance-State Regulation-Surplus Line Insurance, James C. Lockwood S.Ed.

Michigan Law Review

Plaintiff, a New York corporation doing business in Texas, purchased insurance covering risks located in Texas from insurers not licensed to do business in that state. The entire insurance transaction was consummated outside Texas, and any adjustment for losses was to be made outside the state. Pursuant to a Texas statute, plaintiff was taxed an amount equal to five percent of its gross premiums. Plaintiff instituted the present suit in a state court in Texas to recover the tax, which had been paid under protest. The trial court's decision for plaintiff was affirmed by the court of civil appeals, and …

Sales-Implied Warranty-Merchantable Quality Of Tobacco Products, John E. Mogk

Michigan Law Review

Decedent's widow and the administrator of his estate brought a consolidated suit against the American Tobacco Company on six theories of liability for the death of decedent, allegedly caused by lung cancer purportedly contracted from the smoking of defendant's cigarettes. At the close of plaintiff's evidence, the district court directed a verdict for defendant on all counts except those of implied warranty and negligence. The jury determined that, although defendant's cigarettes were the cause of decedent's lung cancer and resultant death, defendant had no means of knowing that the cigarettes would cause cancer. On appeal of the implied warranty charge …

Securities-Investment Advisers Act Of 1940-Antifraud Provisions Interpreted, Byron Bronston S.Ed.

Michigan Law Review

Defendant, Capital Gains Research Bureau, Inc., an investment advisory service, published a bulletin entitled "A Capital Gains Report," each issue of which advised approximately 5,000 subscribers as to the investment potential of a particular corporation's stock. On at least five occasions Capital Gains, and its president and sole stockholder, also a defendant, acquired some shares of a stock and, without revealing their interest therein, recommended its purchase in the bulletin. Following each recommendation, trading in the stock increased, the price rose, and, within a few days, defendants sold their shares at a profit. The Securities and Exchange Commission, alleging that …

Taxation-Accounting Methods--Forfeiture Of Privilege Of Electing Installment Basis, Daniel R. Elliott Jr.

Michigan Law Review

During 1953, petitioner sold her farm and agreed to receive payment in yearly installments. Her 1953 income tax return, in which she elected to report the sale on the installment basis, was not filed until 1957. Respondent, the Commissioner of Internal Revenue, assessed a deficiency and included the entire gain from the transaction in petitioner's 1953 return. On the basis of previous Tax Court decisions, he contended that petitioner was not entitled to use the installment method because of her failure to file a timely return. Petitioner argued that neither the statute nor the regulations required a timely return as …

Taxation-Federal Estate Tax-Application Of Section 2039 To Benefits Paid To Survivor Under A Deferred Compensation Plan, T. K. Carroll

Michigan Law Review

Upon decedent's death, his former employer made certain payments to the surviving widow under two voluntarily established benefit plans which were unfunded and non-qualified. The first of these arrangements, the death benefit plan, provided for three months' salary to be paid to an employee's widow, if the employee died before becoming eligible for retirement. The second, the deferred compensation plan, provided payment of a certain stated maximum to an employee's widow in sixty equal monthly installments. This was not a retirement program, however, since the employee himself would receive these payments if, and only if, he were ever to become …

Mason: The Supreme Court: Palladium: Of Freedom, Joseph E. Kallenbach

Michigan Law Review

A Review of The Supreme Court: Palladium: Of Freedom . By Alpheus T. Mason.

Foreign Investment Protection: A Reasoned Approach, Earl Snyder

Michigan Law Review

The main purpose in protecting private foreign investment is to encourage capital to move to newly developing nations in spite of serious, existing non-business risks. These risks are (1) the political risk (outright and "creeping" expropriation), (2) the transfer risk ( currency controls and inconvertibility of funds), and (3) the calamity risk (insurrection, revolution, war, etc.). But why encourage this? Why should an affluent, powerful nation seek, in effect, to transport overseas some of its affluence and power? Why--in the case of the United States-should encouragement be given to that which may, according to some, tend to tip still more …

Taxation-Federal Income Taxation-The Three-Party Sale And Lease-Back, Lawrence R. Velvel S.Ed.

Michigan Law Review

The so-called sale and lease-back device has long been the subject of judicial and governmental scrutiny. The Internal Revenue Service has recently decided to begin a more active campaign of enforcement against a certain three-party variation of the sale and lease-back device. The structure of this variation can be best understood by considering the following hypothetical situation.

Labor Law--Federal Pre-Emption--Scope Of Arguable Nlrb Jurisdiction, Martin B. Dickinson Jr., S.Ed.

Michigan Law Review

Picketing by petitioner interrupted the unloading of respondent's cargo vessels. A state court granted respondent's request for a permanent injunction against further picketing, despite petitioner's contention that, since it was a "labor organization" within the meaning of section S(b) of the Labor Management Relations Act and respondent had alleged an unfair labor practice, the National Labor Relations Board had exclusive jurisdiction of the dispute. The Supreme Court of Minnesota affirmed the granting of injunctive relief. On certiorari to the United States Supreme Court, held, reversed, one Justice dissenting. Since an unfair labor practice has been alleged and petitioner is …