Jurisprudence Commons^™

Criminal Law And Procedure - Charging One Theft As Several Larcenies, A Series Of Thefts As A Single Larceny, Michigan Law Review

Michigan Law Review

The gist of the crime of larceny both at common law and under statutes is a fraudulent taking of the personal property of another with an intent to appropriate it. One taking coupled with the necessary intent normally constitutes a single offense of larceny, and normally the courts limit their inquiry to whether there is such taking and intent; if the finding is in the affirmative the crime of larceny is established. Yet the courts tend to go beyond these limits of inquiry where the problem arises whether a single offense or several distinct offenses have been committed. Two types …

Jurisprudence On Parade, Hessel E. Yntema

Michigan Law Review

Jurisprudence is part of the pageant that makes history. This is a truism that, it may be added, obtains irrespective of the view held as to the significance of general legal theory. To some, the constructs of jurisprudence may seem but laggard symbols of more vital facts and trends. The degree of the lag exhibited by the more celebrated of such constructs may suggest to an anthropologically-minded observer, such as Thurman Arnold, that the apparent function of jurisprudence in the present social climate is neither to represent reality nor to control the administration of justice, but rather by the magic …

Sales Taxes, Interstate Trade Barriers, And Congress: The Gulf Oil Case, M. R. Schlesinger

Michigan Law Review

The capacity of the federal government to deal with the increasingly irritating problem of interstate trade barriers is an important question high-lighted by the recent Supreme Court decision in McGoldrick v. Gulf Oil Corp. The Court there decided that in view of the superior federal authority over foreign commerce Congress could validly prohibit an otherwise legal city sales tax on imported petroleum manufactured into fuel oil and sold for use on foreign-bound ships.

Substance And Procedure In The Conflict Of Laws, Edgar H. Ailes

Michigan Law Review

It is perhaps the most inveterate doctrine of the conflict of laws that all questions of procedure in a given instance are governed by the lex fori, or the law of the court invoked, regardless of the law under which the substantive rights of the parties accrued. For seven centuries, at least, courts and lawyers have broadly stated or assumed to be axiomatic the rule that substantive rights are fixed and immutable whilst the procedural devices by which such rights may be vindicated and enforced depend solely upon the law of the forum.

Constitutional Interpretation And Judicial Self-Restraint, Vincent M. Barnett Jr.

Michigan Law Review

The newly reconstituted Supreme Court of the United States has become the center of an earnest controversy with respect to the true role of the Court in constitutional interpretation. The general controversy is, of course, far from new. What makes it of more than ordinary significance is that the Court itself is revealing a tendency substantially to alter the extent, if not the nature, of judicial review. This tendency has not yet become clearly dominant, but it is apparent enough to shake the implicit faith in the Court of many of those to whom, before 1937, any criticism of the …

The Premises Of The Judgment As Res Judicata In Continental And Anglo-American Law, Robert Wyness Millar

Michigan Law Review

That every judicial judgment, whatever its character, consists of premises and conclusion is a fact sufficiently obvious. In our system, especially, expression of the premises must very often be sought outside the actual judgment-order and collected from other parts of the judicial record or even from evidence aliunde of what took place at the hearing. But the legal nature of the relation between premises and conclusion is independent of the particular structure of the record and the mode of ascertaining what those premises were. Given satisfaction of the requirements of the law with respect to identity of parties, it is …

Actions - Stay Of Proceedings To Await Result In "Test Case" Involving Similar Issues, Jack L. White

Michigan Law Review

Suits were instituted by respondents, non-registered holding companies, in the District Court for the District of Columbia to enjoin the enforcement against them of the Public Utility Holding Company Act of 1935 on the ground that it was unconstitutional. On the same day that the first of these bills was filed, the Securities and Exchange Commission began suit in a federal district court in New York to compel the Electric Bond & Share Company and others, members of another utility system, to register as required by the act. A cross-bill in that action contested the validity of the act and …

The "Last Clear Chance" Doctrine In The Federal Courts, Nedra Evans

Michigan Law Review

In analyzing the doctrine of "last clear chance," a qualification of the co.μtributory negligence rule, several questions must be considered. Perhaps the most important one is, (1) Does the court apply the doctrine of discovered peril or is it enough that defendant should have known, by the exercise of reasonable care, plaintiff's peril? (2) Is the doctrine of "last clear chance" confined to cases where the negligence of plaintiff has spent itself? (3) If the doctrine of undiscovered peril is followed for a licensee, will the court still apply the rule of discovered peril if plaintiff is a trespasser? (4) …

The Varying Meaning And Legal Effect Of The Word "Void", Abraham J. Levin

Michigan Law Review

To interpret properly what has been said or written necessitates our going beyond the dictionary into the sphere of action and reality. In its narrowest sense the, meaning of a word is the single effect which is given to it in the specific case. Insofar as nature repeats itself are we able to build up concepts and symbols which function in substantially the same way in different cases. But the mind must always be ready to discard an accepted definition of a word symbol for the particular legal effect which the circumstances demand. The same word or symbol with the …

The Meaning Of "Heirs" In Willsa Suggestion In Legal Method, Lewis M. Simes, Lorentz B. Knouff, George E. Leonard Jr.:

Michigan Law Review

A major task of the lawyer is the prediction of judicial action. No less than a quarter of a century ago Justice Holmes referred to the law as a body of "systematized prediction." Today legal scholars are not content to base their predictions solely upon the body of rules announced in judicial opinions. By means of elaborate fact studies they have sought to ascertain how rules of law actually function in society. Not only have these studies dealt with problems of procedure and the administration of courts, they have also invaded the fields of commercial and property law. Among such …

Constitutional Law-Stare Decisis

Michigan Law Review

The defendant corporation, a lessee of school lands from the state of Oklahoma, protested the right of the Commissioner of Internal Revenue to tax its net income. Held, under the rule of Gillespie v. Oklahoma, the income cannot be taxed without interfering with a state instrumentality. Four dissenting justices-Stone, Brandeis, Roberts, and Cardozo--admitted the applicability but denied the wisdom of the Gillespie case and the inability of the court to overrule itself, in Burnet v. Coronado Oil and Gas Co.

The Case Method Of Studying Law, Henry Rottschaefer

Michigan Law Review

A review of THE CASE METHOD OF STUDYING LAW By Jacob Henry Landman.

The Paradoxes Of Legal Science: A Review, Rousseau A. Burch

Michigan Law Review

This book by the distinguished Chief Judge of the New York court of appeals deals with difficulties of the judicial process when its function is creative; that is, when a judge makes law for novel situations.

The title of the book assumes there is a science of law, and the introduction takes analogues of physical science for a starting point. In physics there are rest and motion, static and dynamic ; in social affairs there are stability and changes, conservation and progress. In making decisions, the judge may be concerned with the yea of action in alteration, and the nay …

Juristic Idealism And Legal Practice, Joseph H. Drake

Michigan Law Review

The relation of the "idea" of just law to the "principles" [Grundsaetze] of just law and the "model" [Vorbild] of just law is somewhat difficult to grasp and Stammler's application of the idea, through the intermediate principles and model, to the practice of just law, has given much trouble to the critics. A rule of law may be thought of as a particular conclusion, a principle as a general conclusion, while a standard or norm is a means of reaching conclusions. This is of course the old logical division of conceptions into particular, general and universal, …

The Power Of The Written Assertion, Gustavus Ohlinger

Michigan Law Review

In his Outline of History Mr. Wells comments on the exaggerated estimate which people generally, through reading the Old Testament account, have come to entertain of the wisdom of Solomon and of the glory and prestige of the Israelitish Kingdom during his reign. By way of contrast, the facts, which are readily available and discernable even in the scriptural narrative, reveal this much advertised monarch as a rather insignificant chieftain and his kingdom as a pawn in the policies of his powerful neighbors-a striking example, according to Mr. Wells, of the power of the written assertion over realities in men's …

The Significance Of The Endowment, John M. Zane

Michigan Law Review

Engraven over the entrance to this building are the words "The Character of the Legal Profession Depends on the Character of the Law Schools. The Character of the Law Schools Forecasts the Future of America."

Book Reviews

Michigan Law Review

A collection of book reviews by multiple authors.

Caveat Emptor And The Judicial Process, John B. Waite

Articles

"There are many issues in the law whose solution has an essentially economic cost. There is one issue in particular, however, of immense and most important economic effect, which has been decided and re-decided, but which, strangely enough, the courts never seem to have considered on the merits of its economic relations and effects....

"...[O]ught one to be permitted safely, if honestly, to intrust possession of goods to others; or should one have power safely, if honestly, to buy goods from those in possession...."

Legal Standards And Ideals, Sir Paul Vinogradoff

Michigan Law Review

Provisions for the settling of conflicts constitute the greater part of any legal system. These conflicts are not entirely governed by self interest and the idea of ethical duty does not disappear from them: it asserts itself in the shape of the balance to be established ·by the court: while every litigant presses for the satisfaction of his own claims society is called upon to adjudicate fairly between the parties: the moral notion of justice appears as the impartial attribution of what everyone in society ought to have by right. We make distinctions between men in accordance with their greater …

Book Reviews

Michigan Law Review

A collection of book reviews by multiple authors.

The Machinery Of Procedural Reform, Edson R. Sunderland

Michigan Law Review

Much has been said and written about the imperfections of legal procedure. It is a subject of great interest and concern to the bar and to the public. Since rules of practice prescribe the conditions under which rules of law may be made operative, in so far as they fail of their purpose the law itself becomes ineffective. Lord Campbell is reported to have said that "The due distribution of justice depends more upon the rules by which suits are conducted than on the perfection of the code by which rights are defined."

Book Reviews

Michigan Law Review

A collection of book reviews by multiple authors.

Fundamextal Tendencies In Modern Jurisprudence, Rudolph Stammler

Michigan Law Review

Empiricism is a variety of skepticism. Both refuse to consider the possibility of a fundamental ordering of the mental life. But they are differentiated one from the other in the manner of working out this refusal.

Fundamental Tendencies In Modern Jurisprudence, Rudolf Stammler

Michigan Law Review

In his treatise on "CONTEMPORARY SOCIOLOGY" (1904) Ward has collected no less than twelve meanings of the term "Sociology." He could undoubtedly have found more meanings for this iridescent word; all of which shows that the term has no significance whatsoever as a uniform characterization of a definite field of human knowledge. However, there has been very noticeable, running through these different meanings, one definite tendency. It is characterized by its very great reliance upon the methods of natural science in dealing with the physical world, and by certain far-reaching "analogies," by which modem jurisprudence is to be guided …

Fundamental Tendencies In Modern Jurisprudence, Rudolf Stammler

Michigan Law Review

The reception of Roman law presented new problems to jurisprudence.

At the end of the fifteenth century the reception of Roman law and canon law, together with the Lombard feudal law, was complete throughout the entire continent of Europe.

As a matter of fact, Roman law had come northward in the East from Constantinople at the same time that it was coming into Germany from the South and West; but that is for our question of no particular importance. The chief point is that everywhere there was the need of becoming familiar with this foreign law, so far as that …

The Law Book Of The Future, William W. Cook

Michigan Law Review

In an article published in November, 1922, in the American Bar Association Journal on the "Power and Responsibility of the American Bar and its Relations to Democratic Institutions," the author pointed out the achievements of the profession in developing the law to meet the political and industrial needs of the American people. There is still other important work for the profession to do. Blackstone's and Kent's Commentaries have been outgrown and there is an imperative demand for a comprehensive and practical American treatise on all law for the use of law students and lawyers, legislators and the educated classes generally. …

Ministerial And Discretionary Official Acts, Edwin W. Patterson

Michigan Law Review

Two recent cases, one in Michigan and one in Iowa, bring up again the insistent question of judicial control over administrative action and the oft-repeated distinction between "ministerial" and "discretionary" official acts.

Social And Economic Interpretation Of The Fourteenth Amendment, Robert Eugene Cushman

Michigan Law Review

For those who love precision and definiteness the question of the application of the Fourteenth Amendment to social and economic problems remains an irritating enigma. The judicial construction of due process of law and the equal protection of the law has from the first discouraged systematic analysis and defied synthesis. More than one writer has emerged from the study of the problem with a neat and compact set of fundamental principles, only to have the Supreme Court discourteously ignore them in its next case. But paradoxical as it may seem, those who long for a wise and forward-looking solution of …

Book Reviews, Edwin W. Patterson, Edson R. Sunderland, C E. Griffin

Michigan Law Review

The title of this brilliant little volume might, more accurately, have been, "The Spirits of the Common Law," for it depicts the common law as the battleground of many conflicting spirits, from which a few relatively permanent ideas and ideals have emerged triumphant. As a whole, the book is a pluralistic-idealistic interpretation of legal history. Idealistic, because Dean Pound finds that the fundamentals of the 'common law have been shaped by ideas and ideals rather than by economic determinism or class struggle; he definitely rejects a purely economic interpretation of legal history, although he demands a sociological one (pp. io-ii). …

Net Income And Judicial Economics, Henry Rottschaefer

Michigan Law Review

A legal system does not function in a vacuum of abstractions. It is part of a general institutional framework of an organized society. Its content is determined by concrete individual and social needs and activities. Hence modern jurisprudence conceives of law as a means for securing interests. The appraisal of its rules and principles requires an evaluation of the significant elements of the situation to which they apply. A narrow, complacent formalism is the penalty of failure in this regard. No one would deny the emphasis modern society places upor its commercial and industrial interests, nor the many points of …