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Articles 1 - 30 of 52
Full-Text Articles in Law
Examining Presidential Power Through The Rubric Of Equity, Eric A. White
Examining Presidential Power Through The Rubric Of Equity, Eric A. White
Michigan Law Review
In this Note I propose a method to examine presidents' actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term "practical legitimacy." This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power In light of these parallels, I argue that …
Don't Cross The Streams: Past And Present Overstatement Of Customary International Law In Connection With Conventional Fair And Equitable Treatment Obligations, Theodore Kill
Michigan Law Review
The obligation to provide fair and equitable treatment to foreign investors and investments has existed as a concept of international economic law at least since the 1919 Covenant of the League of Nations. The fair and equitable treatment provision is a key protection contained in the vast majority of modern bilateral investment treaties. Tribunals adjudicating alleged breaches of these fair and equitable treatment provisions have not arrived at a uniform interpretation of the term. As a threshold issue, however each tribunal must address the question of whether a state's obligations under a given treaty's fair and equitable treatment provision will …
Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman
Rewarding Outside Directors, Assaf Hamdani, Reinier Kraakman
Michigan Law Review
While they often rely on the threat of penalties to produce deterrence, legal systems rarely use the promise of rewards. In this Article, we consider the use of rewards to motivate director vigilance. Measures to enhance director liability are commonly perceived to be too costly. We, however demonstrate that properly designed reward regimes could match the behavioral incentives offered by negligence-based liability regimes but with significantly lower costs. We further argue that the market itself cannot implement such a regime in the form of equity compensation for directors. We conclude by providing preliminary sketches of two alternative reward regimes. While …
The Zen Of Corporate Capital Structure Neutrality, Herwig J. Schlunk
The Zen Of Corporate Capital Structure Neutrality, Herwig J. Schlunk
Michigan Law Review
It is well understood that corporate capital structure affects tax collections. Most basically, corporate interest expense is deductible. With each interest accrual, the corporate tax base shrinks. Thus, there is a broad range of circumstances in which corporate managers are encouraged by the Internal Revenue Code (the "Code") to load their corporate capital structures with debt. But there is little support for the proposition that Conpress desires corporations to adopt such debt-laden capital structures. Indeed, much tax legislation suggests congressional displeasure with the achievable degree of corporate self- integration. On the other hand, corporate equity has its charms: shareholders are …
Directorial Fiduciary Duties In A Tracking Stock Equity Structure: The Need For A Duty Of Fairness, Jeffrey J. Hass
Directorial Fiduciary Duties In A Tracking Stock Equity Structure: The Need For A Duty Of Fairness, Jeffrey J. Hass
Michigan Law Review
Part I of this article briefly describes the key distinctions between a tracking stock corporation and a conventional corporation. It then touches on the reasons why corporations have adopted tracking stock equity structures. Part II articulates the unique legal challenges presented by a tracking stock equity structure. Part III discusses the disclosure that tracking stock corporations have made with respect to these challenges. Part IV briefly summarizes the fiduciary duties of care and loyalty and explores why these duties are ill-equipped to address these challenges. Part V presents the duty of fairness and discusses the duty's elements in detail. In …
The Law's Conscience: Equitable Constitutionalism In America, Neil A. Riemann
The Law's Conscience: Equitable Constitutionalism In America, Neil A. Riemann
Michigan Law Review
A Review of The Law's Conscience: Equitable Constitutionalism in America by Peter Charles Hoffer
Equity, Due Process And The Seventh Amendment: A Commentary On The Zenith Case, Patrick Devlin
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 …
Equity And The Constitution, Michigan Law Review
Equity And The Constitution, Michigan Law Review
Michigan Law Review
A Review of Equity and the Constitution by Gary L. McDowell
Admiralty Procedure And Jurisdiction After The 1966 Unification, David W. Robertson
Admiralty Procedure And Jurisdiction After The 1966 Unification, David W. Robertson
Michigan Law Review
From the nation's beginning, the federal district courts have been vested with jurisdiction in cases "of admiralty or maritime jurisdiction." Like its predecessor statute, section 1333 of the present Judicial Code asserts that the jurisdiction is "exclusive of the courts of the states," but the infamous "saving clause" goes on to negate that exclusivity in the bulk of maritime cases by giving the plaintiff the option of maintaining his action in any other court having jurisdiction over it. In "saving clause" cases--that is, cases that could have been brought in federal court under the admiralty jurisdiction, but which were maintained, …
Federal Rules Of Civil Procedure-Rule 19 And Indispensable Parties, Michigan Law Review
Federal Rules Of Civil Procedure-Rule 19 And Indispensable Parties, Michigan Law Review
Michigan Law Review
The reformulation of compulsory joinder rules, urged by commentators for a decade, has been realized with the 1966 amendment to rule 19 of the Federal Rules of Civil Procedure. Prior to the amendment, courts consistently held that the absence from the lawsuit of persons who were "indispensable" deprived the court of power to adjudicate the action. The amendment to rule 19 is an effort to establish a methodology which requires a practical consideration of the factual situation at hand when determining the propriety of permitting a case to continue even though certain parties are not joined. A brief look at …
Federal Employee Invention Rights - Time To Legislate, Marcus B. Finnegan, Richard W. Pogue
Federal Employee Invention Rights - Time To Legislate, Marcus B. Finnegan, Richard W. Pogue
Michigan Law Review
It is the purpose of this article to review judicial standards applicable to the determination of rights in inventions made by employees of the federal government, to note statutory provisions affecting the problem, to examine the content and effect of the present Executive program for determining such rights, to review and evaluate two fundamental and conflicting theories in this field, and to propose legislation establishing appropriate standards and procedures. This topic is believed to have general interest because, in addition to the urgencies suggested above, the problem touches some of the basic legal philosophy underlying the United States patent system.
Constitutional Law-Equal Protection Clause-County Unit Vote, Charles Myneder S.Ed.
Constitutional Law-Equal Protection Clause-County Unit Vote, Charles Myneder S.Ed.
Michigan Law Review
Plaintiffs brought an action against defendants, Chairman of the Georgia State Democratic Executive Committee and others, to restrain adherence to a state statute providing that the County Unit Vote shall determine the outcome of a primary election. Under the statute each county is alloted a number of unit votes. The candidate receiving the highest popular vote in the county is awarded the unit votes of that county. Plaintiffs, residents of the most populous county in the state, alleged that their votes had on an average but one-tenth the weight of those in the other counties in the state. From a …
Federal Procedure--Third-Party Practice--Contbibution Among Joint Or Concurrent Tort-Feasors, Paul M.D. Harrison
Federal Procedure--Third-Party Practice--Contbibution Among Joint Or Concurrent Tort-Feasors, Paul M.D. Harrison
Michigan Law Review
A sued B for injuries arising out of a collision between B's taxicab and an automobile driven by C, in which A was riding as a guest passenger. B filed a third-party complaint against C, who denied B's allegation of negligence and counterclaimed against B for personal injuries. A did not amend his complaint to assert a claim against C. The jury found that A's injury was caused by the concurrent negligence of B and C. Judgment for $11,500 was given to A against B, and B was awarded a judgment against …
Specific Performance-Marketable Title To Realty-Compelling Vendor To Purchase Outstanding Interest, Robert Dilts
Specific Performance-Marketable Title To Realty-Compelling Vendor To Purchase Outstanding Interest, Robert Dilts
Michigan Law Review
Plaintiffs sued for specific performance of a contract for the sale of real estate. Their attorney had concluded that the abstract furnished by defendant indicated a possible outstanding undivided one-half interest in the property. Refusing to accept a conveyance unless the alleged defect was eliminated or protection offered against an attack on the title, plaintiffs sought a decree requiring defendant to clear title and convey according to the contract. There was no showing that defendant could obtain a conveyance of the alleged outstanding interest. Held, specific performance denied. Bartos v. Czerwinski, 323 Mich. 87, 34 N.W. (2d) 566 …
Corporations-Receivership Or Dissolution Of Solvent Corporation At Suit Of Minority Stockholder-Dissension As A Ground For Relief, Charles M. Soller
Corporations-Receivership Or Dissolution Of Solvent Corporation At Suit Of Minority Stockholder-Dissension As A Ground For Relief, Charles M. Soller
Michigan Law Review
A and B owned 50 per cent of the stock in each of two solvent corporations, and Y and Z owned the remaining 50 per cent. Y was president and director of each company, Z was secretary and director, and B was vice-president and director. A's testator had been treasurer and director until his death. A and B brought suit against Y and Z and the corporations, seeking an equity receivership and liquidation and distribution of corporate assets. The complaint alleged that the two factions had been in dispute for five years, that Y had assumed exclusive control of …
Quasi-Contracts-Recission-Liability And Remedies For Innocent Misrepresentation, Bruce L. Moore S.Ed.
Quasi-Contracts-Recission-Liability And Remedies For Innocent Misrepresentation, Bruce L. Moore S.Ed.
Michigan Law Review
A number of courts and most writers recognize the existence of three types of misrepresentation. One type is described as intentional, a second type as negligent, and a third type as innocent. An innocent misrepresentation may be defined as one believed to be true and made without negligence, but false in fact.
Seagle: Men Of Law From Hammurabi To Holmes, Merrill N. Johnson S.Ed.
Seagle: Men Of Law From Hammurabi To Holmes, Merrill N. Johnson S.Ed.
Michigan Law Review
A Review of MEN OF LAW FROM HAMMURABI TO HOLMES. By William Seagle.
The Administration Of A Decedent's Estate As A Proceeding In Rem, Lewis M. Simes
The Administration Of A Decedent's Estate As A Proceeding In Rem, Lewis M. Simes
Michigan Law Review
For over a century American courts and text writers have referred to the administration of a decedent's estate as a proceeding in rem. Indeed, it has recently been asserted that a probate proceeding is "universally recognized as a proceeding in rem." But more cautious persons have been content to suggest that it is at least "quasi in rem," or have carefully skirted the fog which is wont to envelop this area of the law and given it silent treatment. Thus, the American Law Institute Restatement of the Law of Judgments ( which purports to include the law of probate decrees) …
Abstracts, Katherine Kempfer
Abstracts, Katherine Kempfer
Michigan Law Review
The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.
Injunctions - When Enforcement Of Judgment Will Be Enjoined For Fraud Consisting Of Perjury, Michigan Law Review
Injunctions - When Enforcement Of Judgment Will Be Enjoined For Fraud Consisting Of Perjury, Michigan Law Review
Michigan Law Review
Plaintiffs sought a permanent injunction against the procurement by defendant. of a judgment upon a workmen's compensation award, on the ground that defendant had obtained the award through the perjured testimony of himself and his witnesses. The false testimony was claimed to be a fraud upon the department of labor and industry as well as upon the plaintiffs. The lower court dismissed the bill as failing to state a cause of action. Held, dismissal affirmed since perjury is an intrinsic fraud, and equitable relief will not be given. Fawcett v. Atherton, 298 Mich. 362, 299 N. W. 108 …
Election Of Remedies- Contracts Induced By Fraud, Michigan Law Review
Election Of Remedies- Contracts Induced By Fraud, Michigan Law Review
Michigan Law Review
In 1939, plaintiff brought an action alleging in his complaint that defendant became indebted to him on December 17, 1928, for $13,400, for money had and received by defendant to the use of plaintiff. In a bill of particulars plaintiff pointed out that the indebtedness arose from the purchase of certain bonds and the subsequent rescission of the contract of purchase prior to the commencement of this action, basing his right to rescind upon misrepresentations made by, and the fraud of, defendant in inducing the purchase of said bonds. When defendant moved for a summary judgment on the ground that …
Fixtures - Conditional Sales - Effect Of Recording Upon Subsequent Mortgagee Of The Realty, Michigan Law Review
Fixtures - Conditional Sales - Effect Of Recording Upon Subsequent Mortgagee Of The Realty, Michigan Law Review
Michigan Law Review
Two furnaces were sold and installed by plaintiff's assignor on a conditional sale contract that was duly recorded. The vendee then mortgaged the land on which the furnaces were annexed to the defendant. He defaulted on payments under the conditional sales contract and the plaintiff obtained a decree foreclosing the vendee's equity. Defendant filed a petition to have the decree vacated. Held, that as defendant was a subsequent mortgagee without notice the decree should be vacated. Twentieth Century Heating & Ventilating Co. v. Home Owners Loan Corp., 56 Ohio App. 188, 10 N. E. (2d) 229 (1937).
Damage As Requisite To Rescission For Misrepresentation, Glenn A. Mccleary
Damage As Requisite To Rescission For Misrepresentation, Glenn A. Mccleary
Michigan Law Review
The decadence of equity during the nineteenth century has long been an accepted phenomenon. The attempt to make law coincide with morals in the seventeenth and eighteenth centuries was followed in the nineteenth century by the gradual fixing of rules and a consequent stiffening of the legal systems, in which moral principles became lost in a mass of rules derived from such principles. What were once equitable doctrines tended to become mechanical rules. The former strength of equity has been weakened in the various jurisdictions, due in a large measure to the administration of law and equity by the same …
Trade - Marks And Trade Names - Effect Of Word - Mark Acquiring A Descriptive Connotation, Grover C. Grismore
Trade - Marks And Trade Names - Effect Of Word - Mark Acquiring A Descriptive Connotation, Grover C. Grismore
Michigan Law Review
One of the principal stumbling blocks in the way of the development of a consistent and satisfactory theory of trade-mark protection has been the anomalous distinction that has always been made between the so-called technical or common-law trade-mark, and the non-technical mark or tradename. This distinction, as has been pointed out previously in this Review, grew somewhat accidentally out of the supposed limitations on the jurisdiction of equity. Some of the earliest trade-mark cases proceeded on the theory that to justify the intervention of a court of equity, when the defendant was not shown to have been guilty of …
Charities - Capacity Of An Unincorporated Association To Act As Trustee Of A Charitable Trust, Philip A. Hart
Charities - Capacity Of An Unincorporated Association To Act As Trustee Of A Charitable Trust, Philip A. Hart
Michigan Law Review
The residuary clause of testatrix's will directed that the remainder of the estate "after the rest and remainder has been converted into money by my executor . . . I give, devise and bequeath to the Old Order Church, . . . to be invested and reinvested among the members of the said church, and the income derived therefrom to be used for the benefit of the said Church." The church named was an unincorporated association and the heirs claimed that as such it had no capacity to take the bequest, either in its own right or as trustee. The …
Corporations - Capital, Capital Stock And Stock, Frederick K. Brown
Corporations - Capital, Capital Stock And Stock, Frederick K. Brown
Michigan Law Review
The recent case of Haggard v. Lexington Utilities Co. is typical of the nominalistic confusion occasioned by the use of the terms "capital" and "capital stock." Whatever progress the courts have made toward making them words of precise signification has not been reflected in the drafting of statutes, where they are employed to represent a bewildering number of connotations. The courts have recognized this and have not sought to make them words of art with a single, definitive meaning but through the mechanics of statutory interpretation have sought to divine the legislative intent.
Estoppel And Statutes Of Limitation, John P. Dawson
Estoppel And Statutes Of Limitation, John P. Dawson
Michigan Law Review
Among all the spheres of its activity estoppel probably performs no more useful service than in the alleviation of hardship caused by statutes of limitation. Here as in other places the elements of estoppel and its relations to more basic legal concepts are exceedingly hard to define. At some points its effects on limitation acts could be described in terms of express contract; at other points it merges into "fraud"; in general it provides the medium for official expressions of disapproval where civil litigation exceeds the permissible limits of private warfare.
Declaratory Judgments- Extension Of Protection Against Injuries To Personality
Declaratory Judgments- Extension Of Protection Against Injuries To Personality
Michigan Law Review
The widespread acceptance of the declaratory judgment as a statutory supplement to common law and equitable remedies has raised some searching questions as to the relation between right and remedy in Anglo-American law. The declaratory judgment can operate in anticipation of specific wrongs that would be a basis for ordinary legal or equitable relief. It does not depend for its efficacy on the use of the familiar remedies of law and equity - that is, on damages, specific restitution in replevin and ejectment, and the injunction and specific enforcement in equity. The question may therefore be asked whether the development …
Corporations-Trust Indenture-Bond And Indenture Provisions Giving Notice To Security Holders Of Limitations Upon Right To Sue
Michigan Law Review
In a recent comment in this Review it was pointed out that many corporate bonds contain a clause referring the bondholder to the trust indenture, under which the bonds are issued, for a description of his rights with respect to the bond. The main purpose of this reference clause is to give the holder notice of the limitations upon his right to sue either at law upon the bond or in equity upon the security. These limitations, whatever they may be, are generally too numerous to reprint on the bond, and hence they are found only in the indenture. One …
Corporations -De Facto Existence Of Corporations Where Charter Expired
Corporations -De Facto Existence Of Corporations Where Charter Expired
Michigan Law Review
After expiration of its charter the defendant corporation, which had been operating under the name of "Trustees of the Young Harris Institute," continued to conduct the business for which it was incorporated, holding itself out to the public as a corporate entity under the name of "Young L. G. Harris College." Plaintiff sued on a contract for goods and services furnished to defendant as "Young L. G. Harris College." Held, defendant is a de facto corporation and cannot escape liability on the ground that there was in fact no legal corporation by the name of "Young L. G. Harris …