Jurisprudence Commons^™

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 …

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.

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) …