Jurisprudence Commons^™

Criminal Law - Reexamination Of Tests For Criminal Responsibility, Mary Lee Ryan

Michigan Law Review

Criminal law in the Anglo-American system of jurisprudence is based upon the concept that persons should be held responsible for their acts. A strong corrollary to this idea is that certain types of persons, namely the "insane," should not be held responsible for criminal conduct. Although this proposition seems beautifully simple, courts in England and the United States for over a hundred years have wrestled with the problem of what constitutes insanity, or, to phrase it more accurately, what type of mental condition should preclude responsibility for a criminal act.

Justice Murphy And The Welfare Question, Leo Weiss

Michigan Law Review

In 1941, an Italian law professor arrived in the United States to make his home here. Born in Russia during Czarist days, he was educated in Austria, England, and Italy, finally settling there and becoming a citizen. A member of the Italian bar and teacher of law at the Universities of Florence and Rome, he found himself in 1939 unwanted in his adopted homeland. He went to France, where he practiced law until coming to this country. In New York City he joined the Graduate Faculty of the New School for Social Research, remaining in that post for five years, …

Justice Jackson And The Judicial Function, Paul A. Weidner

Michigan Law Review

Much of the pattern of division in the present Supreme Court is traceable to basic differences of opinion regarding the proper role of a judge in the process of constitutional adjudication. Some students of the Court, yielding to the current fashion of reducing even intricate problems to capsule terms, have tried to explain the controversy by classifying the justices as either "liberals" or "conservatives." A second school poses the disagreement largely in terms of judicial "activism" as opposed to judicial "restraint." It is this view that has the greater relevance for the present discussion. C.H. Pritchett, one of the leading …

Review Of Jurisprudence: Men And Ideas Of The Law, By E. W. Patterson, John W. Reed

Reviews

Jurisprudence: Men and Ideas of the Law was written as a textbook for students enrolled in Columbia's jurisprudence course. It appeared first inmimeograph in 1940, and has gone through three revisions before emerging in its present printed form. Thirteen years is not a record incubation period, but it typifies the care and thoroughness with which Professor Patterson works and with which he has prepared the present volume. Each sentence, each paragraph, each section is, to me, a clear statement of his meaning and serves his purpose well.

In Suport Of The Thayer Theory Of Presumptions, Charles V. Laughlin

Michigan Law Review

A learned judge once said to a young lawyer, "If you are ever a trial court judge, never give reasons for your decisions. Your rulings will probably be right, but your reasons will likely be wrong." That statement may aptly apply to judicial pronouncements relating to the subject of presumptions. Decisions are largely free from criticism so far as concerns the results reached, but the reasoning processes by which they are reached appear to be in hopeless confusion. It is believed that a theory can be presented which will both reconcile these confusions of judicial techniques and explain the general …

Judicial Techniques In Combating Tax Avoidance, Ralph S. Rice

Michigan Law Review

There is no problem today more fundamental in federal tax law than the rationale (or lack of it) that underlies the conduct of the courts in striking down tax avoidance devices and refusing to recognize business arrangements which meet statutory requirements for tax saving but exude an odor piscatorial.

The Law Review-Its First Fifty Years, E. Blythe Stason

Michigan Law Review

A memorial issue commemorating fifty years of the Michigan Law Review would not be complete without at least a brief glance at some of the historical record.

Elkouri: How Arbitration Works., Gabriel N. Alexander

Michigan Law Review

A Review of HOW ARBITRATION WORKS. By Frank Elkouri.

Reuschlein: Jurisprudence-Its American Prophets., S. I. Shuman

Michigan Law Review

A Review of JURISPRUDENCE-ITS AMERICAN PROPHETS. A Survey of Taught Jurisprudence. By Harold Gill Reuschlein.

The Study Of Jurisprudence-A Letter To A Hostile Student, Samuel Mermin

Michigan Law Review

The value to the law student of a course in jurisprudence has long been a question mark-and to the teachers as well as the students. The students have not been prompted by self-interest, as the teachers have, to come up with plausible erasures of the question mark. Most students, as you did, find the course esoteric, murky and impractical. The teachers, however, many of whom are mercifully unaware of the student reaction, have found sufficient justification for the course on various grounds which I think I can briefly summarize.

Faces On The Court House Steps, A. F. Neumann

Michigan Law Review

Judge Frank may one day write a book which it will be possible to take or leave, but I doubt it. Few writers, with his ability and insight in the field of administration of justice, I suppose, succeed in evoking in their readers the spirited reactions that his writings produce. This is the highest praise that any reader can bestow-even though his reaction be a spirited disagreement.

In his most recent book, Courts on Trial, he has attempted to· destroy what he calls "myths" in legal thinking describing the fact-finding process just as he did for the rule determination …

Cbiminal Law--Humanitarian Motive As A Defense To Homicide--State V. Sander, (N.H. 1950)., Theodore Sachs

Michigan Law Review

It has been uniformly accepted in Anglo-American jurisprudence that motive is neither an element of a crime, nor a defense to its existence.

Levi: An Introduction To Legal Reasoning, Michigan Law Review

Michigan Law Review

A Review of AN INTRODUCTION TO LEGAL REASONING. By Edward H. Levi.

Hall: Living Law Of Democratic Society, Michigan Law Review

Michigan Law Review

A Review of LIVING LAW OF DEMOCRATIC SOCIETY. By Jerome Hall.

Coming Into Equity With Clean Hands, Zechariah Chafee, Jr.

Michigan Law Review

The most amusing maxim of equity is "He who comes into Equity must come with clean hands." It has given rise ,to many interesting cases and poor jokes. The maxim has been regarded as an especially significant manifestation of the ethical attitude of equity as contrasted with the common law. Pomeroy, for instance, argues that the principle involved in this maxim is "merely the expression of one of the elementary and fundamental conceptions of equity jurisprudence." Pomeroy's theory is that chancery has power to force a defendant to comply with the dictates of conscience as to matters outside the strict …

Sanders: Juvenile Courts In North Carolina, Michigan Law Review

Michigan Law Review

A Review of JUVENILE COURTS IN NORTH CAROLINA By Wiley B. Sanders.

Res Judicata-Use Defensively Of Former Judgment By One Not A Party Or In Privity With A Party To Former Action, Richard H. Conn

Michigan Law Review

Plaintiff sued defendant in a federal district court to foreclose a mortgage lien alleged to exist on defendant's land in consequence of a loan by plaintiff to defendant's predecessor in title. Defendant's land was but a part of the tract originally encumbered. In a prior action in the state court, plaintiff had sought foreclosure of the same mortgage against the holder of another parcel of the mortgaged land on the precise grounds now asserted against defendant. In that action it was held that the entire mortgage had already been discharged. Defendant moved for summary judgment, contending that the former decision …

Education For Professional Responsibility, Michigan Law Review

Michigan Law Review

A Review of EDUCATION FOR PROFESSIONAL RESPONSIBILITY. Pittsburgh: Carnegie Press.

New Trial - Use Of Testimony Of Jurors To Set Aside Verdict, R. J. Nordstrom S.Ed.

Michigan Law Review

Whether or not testimony of a juror is admissible for the purpose of setting aside a verdict is a question upon which the cases are in conflict. Much of the contrariety of opinion is due to a failure of courts to distinguish between the two basic factual situations which present the problem. The juror's testimony may be sought to be introduced to show either: (1) that, due to some misunderstanding, his own thought processes were misdirected in arriving at his final vote; or, (2) that he observed the open misconduct of a fellow juror. At the outset it should be …

Courts - Due Process- Findings Of Fact By Court On Basis Of Transcript Where Master Has Not Submitted Report, J. R. Mackenzie S.Ed.

Michigan Law Review

After taking evidence upon a matter referred to him, a master in chancery closed the proofs, but died before making his report. The district court, after receiving briefs of counsel and hearing argument, made an ultimate finding based on the transcript of evidence. Held, such action by a court which has not seen the witnesses is not in accord with due process. Smith v. Dental Products Co., (C.C.A. 7th, 1948) 168 F. (2d) 516.

Recent Books, Michigan Law Review

Michigan Law Review

This department undertakes to note or review briefly current books on law and matters closely related thereto.

Mr. Justice William Johnson, Jurist In Limine: Views On Judicial Precedent, A. J. Levin

Michigan Law Review

We have already become familiar with Johnson's awareness of the unconsciousness of mankind "of the shackles which superstition and tyranny had thrown around" it. He was also sensitive to the part which the law had played in preserving such a state of affairs. His keen and analytic mind was unwilling to accept as final what he knew was the illusive mirage of reality. The situation was a frustrating one-so much so that few minds today are prepared to accept the challenge which such a dynamic attitude entailed for him. He began anticipating beyond the capacities of the minds of those …

Reappraisal Of Federal Question Jurisdiction, G. Merle Bergman

Michigan Law Review

For some time I have been reading and listening to criticisms directed toward decisions which the Supreme Court has rendered in cases involving federal question jurisdiction. The general 'tenor of this criticism is that these decisions demonstrate a surprising lack of uniformity and conscious purpose. Writers profess to search in vain for sound logic in the Court's opinions. They point up instead the anomaly which is reflected when cases involving a substantial federal issue are tried in state courts, while those in which no real federal issue is involved are nevertheless accepted for trial in the federal courts. This result, …

Precedent In Past And Present Legal Systems, C. Sumner Lobingier

Michigan Law Review

The prevailing notion that stare decisis is peculiar to the Anglican Legal System is quite provincial and far from correct. On the contrary, the principle is inherent in every legal system, at least in its primitive stage; for the earliest form of law is custom, and the "core of custom" is precedent, not necessarily judicial, but something quite as authoritative.

Mr. Justice William Johnson And The Common Incidents Of Life: I, A. J. Levin

Michigan Law Review

When Justice Oliver Wendell Holmes filed his brief dissenting opinion in Lochner v. New York in 1905 he must have noticed something new on the American horizon. In this now famous opinion he initiated the first steps which were to usher in a new era in American jurisprudence. "General propositions do not decide concrete cases," he announced with axiomatic brevity and, thus, gave the first telling blow to what may well be termed "introspective jurisprudence." This generalization on the subject of generality was followed in the opinion by a more concrete application, the implementing assertion that a reasonable man might …

Unreported Opinions Of The Supreme Court Of Michigan, 1836-1843, William W. Blume

Michigan Legal Studies Series

In July 1836 final jurisdiction of non-federal litigation passed from the Michigan Territorial Supreme Court to the Supreme Court of the State of Michigan. Then, substantially as now, the Constitution provided: "The judicial power shall be vested in one supreme court, and such other courts as the legislature may from time to time establish." Mich. Const. 1835, Art. VI, §1. Those who are interested in the judicial history of Michigan prior to 1836 are fortunate in having access to much of such history contained in the six volumes entitled "Transactions of the Supreme Court of Michigan," edited by Professor William …

Mr. Justice William Johnson, Creative Dissenter, A. J. Levin

Michigan Law Review

Until the advent of Justice Oliver Wendell Holmes, the masterful and magnetic figure of Chief Justice John Marshall well-nigh overshadowed the whole field of constitutional jurisprudence. That Marshall made inestimable additions to our ideas of cooperative living at the very beginning of our democracy, and that his repute was well deserved, cannot be gainsaid. But one has good cause to wonder why the name of so distinguished a colleague as William Johnson, who sat on the same bench with Marshal for almost thirty years during that formative period, should have been almost completely obscured all these years. Rare, indeed, is …

Foreign Exchange Restrictions And Public Policy In The Conflict Of Laws, Evsey S. Rashba

Michigan Law Review

The general movement towards national economic planning and away from the freedom of the liberal age has brought about unprecedented state interference with international trade. These interferences have vastly increased during the past twenty-five years and have grown at a rapid pace during the last decade.

What Constitutes A Fair Procedure Before The National Labor Relations Board, Clyde W. Summers

Michigan Law Review

No administrative body in recent times has received as much criticism, both favorable and unfavorable, as has the National Labor Relations Board in its administration of the National Labor Relations Act. Such a vast amount of material has been written on the procedure before the board that any further discussion would seem superfluous. However, the discussion of the board's procedure has been related more to the wisdom of choice which the board has made in setting up its procedure than to a determination of the line that separates legality from illegality in its determination of cases.

Torts In The Conflict Of Laws, Moffatt Hancock

Michigan Legal Studies Series

There has been in recent years a marked development of interest in the diversities of laws and their attendant conflicts. While modern facilities of communication accelerate the spread of culture and thus augment the need of uniformity in the laws affecting commerce, they also reveal the significance of local needs, customs, and legal institutions. Indeed, it would seem that multiplication of jurisdictions and progressive diversification of laws in both space and subject matter is an unavoidable concomitant of increasing specialization in the international, interstate, or local economy. If these circumstances serve to justify the perennial effort to simplify the law, …