Courts Commons^™

Dawson: A History Of Lay Judges, Spencer L. Kimball

Michigan Law Review

A Review of A History of Lay Judges . By John P. Dawson

Labor Law - Norris - Laguardia Act - Federal Courts Without Jurisdiction To Enjoin Strike In Support Of Demand That No Jobs Be Abolished Without Railiway Union's Consent, David G. Hill

Michigan Law Review

Respondent railroad sought authority from the South Dakota Public Utilities Commission to reduce the number of its station agents. Petitioner union not only contested but also demanded of the railroad that the following provision be added to the existing collective bargaining agreement: "No position in existence on December 3, 1957, will be abolished or discontinued except by agreement between the carrier and the organization." The commission thereafter found maintenance of the particular jobs to be wasteful and issued a mandatory order directing their abandonment. When the union prepared to strike in support of its demanded contract provision, the railroad sought …

Removal Of Judicial Functions From Federal Trade Commission To A Trade Court: A Reply To Mr. Kintner, Raoul Berger

Michigan Law Review

Not long ago, Attorney General Rogers stated that, "The entire field of administrative law and of Government regulation may require a searching re-examination of some of the premises on which we have based our conclusions." What lifts this utterance to the level of "man bites dog" is that the Attorney General almost alone among federal administrators does not insist that the administrative process, in major outline, is forever frozen. The orthodox administrative view is exemplified by Mr. Earl W. Kintner's (formerly General Counsel and now Chairman of the Federal Trade Commission) numerous strictures upon the American Bar Association proposal that …

Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume

Michigan Law Review

The act of Congress of January 11, 1805, which created Michigan Territory out of Indiana Territory, provided that the new territory should have a government "in all respects similar" to that provided for the Northwest Territory by the Ordinance of 1787. The Ordinance had provided for the appointment of a court to consist of three judges who should have "a common law jurisdiction. "

Administrative Law - Administrative Procedure Act- Status Of Tax Court, James Cripe

Michigan Law Review

Petitioner instituted this action before the Tax Court for a review of rulings by the Commissioner of Internal Revenue determining deficiencies in the payment of his income taxes. The Tax Court held that it was not subject to the Administrative Procedure Act and had no means whatever of bringing before it the entire record, so called, that was before the Commissioner. On appeal, held, affirmed. Judicial review of the "whole record" mentioned in section 10 (e) of the Administrative Procedure Act envisages, in the case of adjudication, a review of the record made in cases governed by sections 5, …

Administrative Law - Judicial Control - Appellate Review Of Federal Trade Commission Proceedings, David A. Nelson S. Ed.

Michigan Law Review

During its forty-five year life the Federal Trade Commission has gone through some difficult periods to emerge today as one of the fundamental instrumentalities of government in the regulation of business. Its vast powers and influence, well known to lawyers, will not be explored here. Rather, the purpose of this comment is to appraise the extent of control which the judiciary now exercises over the commission in its adjudicative functions, so as to offer some indication to the practitioner of the probabilities regarding the outcome of judicial review on an appeal beyond the full commission. The approach to be used …

Labor Law - Collective Bargaining - Jurisdiction Of District Court To Vacate An "Unlawful" Order Of The Nlrb, Stephen B. Flood

Michigan Law Review

Respondent, representing a labor organization, petitioned the National Labor Relations Board for certification as the exclusive bargaining agent of a group of professional employees pursuant to section 9 of the amended National Labor Relations Act. After a hearing the Board ordered that nine non-professional employees be included in the bargaining unit. Section 9(b) (1) expressly prohibits the inclusion of non-professional employees in a professional unit unless a majority of the professional members vote for inclusion in such unit. The Board refused to take a vote among the professional employees, and proceeded directly to order an election to determine if respondent's …

"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 …

The Michigan Supreme Court - An Analysis Of Recent Decisions, Frederic F. Brace Jr., James A. Park

Michigan Law Review

It is the purpose of this comment to attempt to determine and evaluate just what the court's role has been. Attention will be directed to selected areas of non-statutory and statutory law, with specific emphasis placed upon the areas of contributory negligence and workmen's compensation.

Constitutional Law - Right To Jury Trial In Indirect Criminal Contempts In Federal Courts, Denis T. Rice S.Ed.

Michigan Law Review

Should constitutional provisions for jury trial apply to contempts committed outside the physical presence of a federal court? The United States Supreme Court, in the recent case of Green v. United States, reviewed this long disputed question. The case involved two Communist Party leaders who had been convicted of Smith Act violations and then had "jumped bail" when they disappeared in violation of surrender orders requiring their presence in court for sentencing. After four and a half years as fugitives they surrendered in 1956 and were charged with criminal contempt of court. Following a so-called "summary" hearing (without the …

Habeas Corpus - Jurisdiction - Exhaustion Of State Remedies As Prerequisite To Federal Relief, John D. Kelly S.Ed.

Michigan Law Review

Petitioner, a prisoner of the Commonwealth of Pennsylvania convicted of armed robbery in 1947, filed a petition for a writ of habeas corpus in federal district court after several efforts to secure the writ in a state court had been unsuccessful. Jurisdiction was based on exhaustion of available state remedies. The petition alleged that the Commonwealth had violated petitioner's rights under the due process clause of the Fourteenth Amendment by denying him the right to be represented by counsel at his trial. The Commonwealth moved to dismiss on the ground that the petition on its face showed that state remedies …

Federal Practice - Venue - Applicability Of General Venue Satute To Defendant Brought Into A Case After Removal From The State Court, Nick E. Yocca S.Ed.

Michigan Law Review

Plaintiffs, citizens of Missouri, originally brought suit in an Alabama state court against D1, a citizen of Virginia, and D2, a citizen of Minnesota, to recover for injuries sustained in an automobile accident which occurred in Alabama. After defendants had removed to the federal district court, plaintiffs amended their complaint to include D3, a citizen of Florida, service of process having been made in accordance with the Alabama nonresident motorist statute. By special appearance, D3 moved for dismissal because of improper venue. Held, motion granted and cause dismissed as to D3. While the original action was removed from the …

Jury - Pre-Trial Selection - Suggested Improvements, Edward B. Stulberg

Michigan Law Review

Over the course of the past twenty years, the desirability of trial by jury has been a subject of constant debate. In contrast, the matter of jury selection has been given little direct attention. Yet it is obvious that if consideration is given to improvements in selection procedure aimed primarily at raising the calibre of the jury panel, disappointment in the judicial process due to the general ineptness of jurors can be decreased. It is true that the fate of a litigant often is entirely within the discretion of the jury. This is not necessarily a reason for the abandonment …

Federal Procedure - Trial Practice - Not Reversible Error For Trial Judge To Summon Jury Sua Sponte After Waiver, Thomas A. Dieterich

Michigan Law Review

Plaintiff instituted this action for breach of contract and defendant counterclaimed. Neither party demanded a jury trial during the period in which it was claimable as of right. Subsequently defendant moved for a jury trial. The motion was denied and was never renewed. Seven months later, on the eve of the trial, the court issued an order sua sponte for a jury trial. Plaintiff's objection was overruled. The jury awarded damages to plaintiff in the same amount as the conceded counterclaim. On appeal, held, affirmed, one judge dissenting. Although the trial judge's action in calling a jury on his …

Civil Procedure On The American Frontier, William Wirt Blume

Michigan Law Review

The Treaty of Greenville (1795) by which Indian tribes of the Northwest Territory ceded to the United States the eastern and southern parts of the area which later became the state of Ohio, provided that certain small areas north and west of the treaty line should also be ceded.

Federal Procedure - Mandamus - Power Of Courts Of Appeal, Jerome K. Walsh, Jr. S.Ed.

Michigan Law Review

In two related antitrust actions instituted in the District Court for the Northern District of Illinois, an order was entered under rule 53(b) of the Federal Rules of Civil Procedure referring the cases to a master for trial because of the "extremely congested calendar" then facing the court. All parties to the· action moved to vacate the order and these motions were denied by the district judge. After appearing before the master to object to the reference, the defendants petitioned the Court of Appeals for the Seventh Circuit praying that a writ of mandamus issue to compel the district judge …

Labor Law - Labor-Management Relations Act- Extent Of Discretion Exercised By District Courts In Issuing Temporary Injunctions Against Alleged Unfair Labor Practice, John A. Beach S.Ed.

Michigan Law Review

The Labor-Management Relations Act gives federal district courts jurisdiction to grant injunctions in two different situations, notwithstanding the general policy against granting in junctions in labor disputes not involving fraud or violence set by the Norris-LaGuardia Act. The grant of limited injunctive jurisdiction given by section 208 in one situation, national emergencies, will not be discussed. This comment will deal only with the other, the grant of jurisdiction in sections 10(j) and (l) to enjoin alleged unfair labor practices at the request of the National Labor Relations Board's regional officer, pending a disposition of the charges by the …

The Union Of Law And Equity, Charles W. Joiner, Ray A. Geddes

Michigan Law Review

This paper was prepared for the guidance of a Committee on Michigan Procedural Revision jointly created by the Michigan Legislature, the Supreme Court of Michigan, and the Michigan State Bar to recommend revision of Michigan statutes and rules. Toe need for the joinder of law and equity procedure was thought to be so fundamental that this paper was prepared as a basic study for the committee. In it an attempt is made to bring to the attention of the Michigan lawyers, judges, and legislators an analysis of the Michigan Constitution, statutes, and cases and the experience of other states that …

Constitutional Law - Due Process - Jurisdiction Of A State Court Over A Foreign Corporation, Robert L. Knauss S.Ed.

Michigan Law Review

Peninsular Gas Company, a Michigan corporation, brought an action in Missouri against the plaintiff for breach of contract. A judgment was returned for plaintiff, and plaintiff immediately filed suit for malicious prosecution and served process on the president of the corporation who was in Missouri for the prior trial. On a motion to quash, held, sustained. Under the due process clause of the United States Constitution, the court had no right to assume jurisdiction. Defendant corporation was not doing business in Missouri, for bringing a prior lawsuit was a single isolated act and was not a part of its …

Constitutional Law - State Action - Effect Of State Court Interpretation Of A Contract, Dudley H. Chapman

Michigan Law Review

Mrs. Doris Walker, president of her local union, was discharged by Cutter Laboratories in 1949 because of membership in the Communist Party and falsification of her employment application. The employer acquired knowledge of these facts in 1947, but did not act at that time to avoid charges of persecuting a union officer. The union, pursuant to the collective bargaining agreement, which authorized discharge for "just cause" only, sought and obtained reinstatement from the arbitration board, which action was affirmed by the district court of appeal, but reversed by the California Supreme Court. On certiorari to the United States Supreme Court, …

Rules Of Practice And Procedure: A Study Of Judicial Rule Making, Charles W. Joiner, Oscar J. Miller

Michigan Law Review

The rule-making power of the courts in the United States is is brought into focus wherever procedural reform is undertaken. As more and more states have undertaken rev1s1on of judicial procedures, the power and authority of courts to promulgate rules of practice and the definition of the scope of such rules have claimed increasingly the attention of legal writers. This trend can be attributed in part to a growing realization that statutes governing practice and procedure in courts, enacted by legislatures meeting every year or two, have failed to achieve that minimum standard in the administration of justice necessary to …

Compulsory Joinder Of Parties In Civil Actions, John W. Reed

Michigan Law Review

Compulsory joinder cases involving interests in land display one peculiar and important characteristic: there is almost never any need in the state courts to wrestle with the question of whether a person is indispensable as distinguished from necessary. One hastens to add that this attribute of land cases appears to have gone largely unnoticed, but it exists none the less. It arises out of the fact that in a suit involving real property it is never impossible for the court to obtain jurisdiction over all persons interested therein to an extent which will enable the court to adjudicate controversies over …

Constitutional Law - Grand Jury Under The Fifth Amendment Indictments Not Subject To Attack On Evidentiary Ground, Jerome K. Walsh, Jr. S.Ed.

Michigan Law Review

Defendant was indicted by a grand jury on four counts of willfully evading federal income taxes due for the years 1946, 1947, 1948 and 1949. His motion before trial to dismiss the indictment on the ground that he was firmly convinced that there could have been no legal or competent evidence before the grand jury was denied by the trial court. At the conclusion of the government's case, and again just before the case went to the jury, counsel for the defendant moved to dismiss the indictment on the ground that only hearsay evidence offered by three revenue agents had …

Constitutional Law - Right To Counsel In Juvenile Court, John A. Ziegler Jr.

Michigan Law Review

In April 1953 petitioner was found to have violated a law by the juvenile court. Being under the age of eighteen, he was committed to the National Training School for Boys of the District 0£ Columbia. He was paroled about a year later but was re-arrested in March 1955 for violation of his parole and brought before the United States Parole Board. Before the parole board could take action he petitioned the federal district court for a writ of habeas corpus on the ground that the action of the juvenile court in 1953 had been unconstitutional in that petitioner had …

Constitutional Law - Due Process - Use Of Habeas Corpus To Allow Federal Court To Review State Court Jury Determination Of Voluntariness Of Confession, Herbert R. Brown S.Ed.

Michigan Law Review

The prisoner had been convicted of murder in the state court. He brought a habeas corpus proceeding in federal district court to secure his release from custody on the ground that the conviction was based on a confession which was obtained by physical violence. The confession had been submitted to the jury, which was instructed to consider it only if it found that it was not obtained by duress or fear produced by threats. The district court granted the writ of habeas corpus. On appeal, held, affirmed. The district court could determine the facts of the case for itself. …

Patent Office Performance In Perspective, George E. Frost

Michigan Law Review

" the only patent that is valid is one which this Court has not been able to get its hands on."

Justice Jackson's note of despair reflects all too accurately the treatment patents have seemingly received in the hands of the courts since the "new trend" of recent years. It has become the legal fashion to characterize letters patent as something the Patent Office issues and the courts strike down. Statistical support for this conclusion can be readily assembled.

Some Abuses Of Antitrust Prosecution: The Investment Bankers Case, Ralph M. Carson

Michigan Law Review

The epochal decision of Judge Medina on October 14, 1953, in United States v. Morgan has already been the subject of adverse criticism by the losing Government counsel and defense by an opposing lawyer. Professor Steffen's grief at the ruin of his handiwork has led him into the impropriety of attacking with unwarranted epithet a thoroughly considered decision by one of the most eminent judges now sitting in our federal courts and into the more symptomatic fault of attributing to the new chief of the Antitrust Division political motivation in his decision not to appeal. He has the assurance to …

Constitutional Law - Due Process - Power Of Michigan One-Man Grand Jury To Punish Contempt, Stephen C. Bransdorfer S.Ed.

Michigan Law Review

Petitioners were two witnesses called before a Detroit Recorder's Court judge sitting as a Michigan one-man grand jury to investigate suspected police corruption. During the hearings both petitioners were cited for contempt. An order to show cause why they should not be punished was issued by the judge. Subsequently, in open hearings, the same judge convicted and sentenced petitioners. The Michigan Supreme Court affirmed. On certiorari to the United States Supreme Court, held, reversed. To allow a judge who sat as a one-man grand jury to preside at a contempt hearing regarding the same witnesses violates due process. In …

Labor Law - Lmra - Substantive Application By A State Court Of Section 8(B), George E. Ewing S.Ed.

Michigan Law Review

The defendant unions peacefully picketed the Valley Lumber Company to force the adoption of a closed shop agreement. The employees had indicated that they did not desire union affiliation or representation and the employer had not recognized any union. The NLRB Regional Director refused to assert jurisdiction over the company for certification purposes because the employer's interstate business was below the Board's jurisdictional yardsticks. The trial court asserted jurisdiction to award damages and an injunction against the picketing. On appeal, held, affirmed, three justices dissenting. Not only was the trial court's jurisdiction proper but it could apply section 8 …

Labor Law - Federal Procedure - Stay Of State Court Proceedings Involving Matters Within The Exclusive Jurisdiction Of The Nlrb, Arne Hovdesven S.Ed.

Michigan Law Review

Richman Brothers sought and was granted a state court injunction against organizational picketing conducted by the union. The complaint alleged acts which were unfair labor practices under section 8 (b) (2) of the amended National Labor Relations Act. The union, after failing to obtain removal of this action, unsuccessfully applied for a federal district court injunction against the state court proceedings. On appeal, held, affirmed. Section 2283 of the Judicial Code prevents a federal court injunction of a state court proceeding, despite the fact that the activities involved are within the exclusive jurisdiction of the National Labor Relations Board. …