Legal History Commons^™

Mr. Justice William Johnson And The Unenviable Dilemma, A. J. Levin

Michigan Law Review

A policy of judicial avoidance, otherwise referred to as "judicial restraint," has clearly been the dominant trend in the United States Supreme Court since Mr. Justice Holmes began to sit upon that bench at the beginning of this century. There has been an inclination to explain this change as revealing a tendency of the Court to follow a policy of laissez-faire toward the legislative and executive departments, and to stop at this formalistic explanation of this important aspect of the judicial function. The Court's increasing awareness of its own lack of technical competence in dealing with the many complex governmental …

The Development Of The Massachusetts Probate System, Thomas E. Atkinson

Michigan Law Review

American lawyers and laymen alike take for granted a system of probate of wills and administration of decedents' estates under the supervision of a single tribunal usually called a probate court. We are familiar with the setting up of the will, appointment of the personal representative, filing of bond and inventory by the latter, granting of allowances for support of the family, notice to creditors to present their claims, and settlement of accounts of the administration, all accomplished by this court's orders or under its scrutiny. While real property is deemed to pass directly to the heirs or devisees, it …

Just War-A Legal Concept?, Arthur Nussbaum

Michigan Law Review

During the century preceding the First World War the topic of "just war," frequently and intensely treated in earlier periods, had almost disappeared from the writings on international relations. Since the end of the war, however, the issue has been revived by writers within and without the legal profession. The present article purports, principally by an inquiry into its historical background, to determine its legal relevance.

A Legal Approach To Equitable Servitudes, Ralph A. Newman

Michigan Law Review

The variety of conceptions of the nature of equitable servitudes is only one indication of the complexity of this particular branch of the law; the difficulty of classifying the topic as a branch of equity rather than of real property, or the reverse, is another, and one which grows out of the interplay of both of these divisions of the law upon the particular field of equitable servitudes. The following discussion is designed to indicate that many of the difficulties inherent in the concept of equitable servitudes may be resolved by analyzing the subject from the point of approach of …

Unreported Michigan Supreme Court Opinions, 1836-1843, Clark F. Norton

Michigan Law Review

It is a commonly known fact that, although Michigan was admitted to the Union in 1837 (many of her citizens had claimed statehood for more than a year prior to her formal admission), few opinions of the state supreme court written before 1843 have ever been published. Why a period of almost ten years should have elapsed before the first volume of state reports was issued in 1846 ( with the exception of two volumes of chancery reports), or why the early reporters seem, from a casual examination, to have neglected decisions of the court before 1843, or what happened …

Witnesses-Privilege Against Self-Incrimination-Effect Of Incorrect Decision By Trial Judge In Compelling Answer When Privilege Asserted

Michigan Law Review

ln a judicial proceeding, a question is asked of a witness, which question he declines to answer, claiming that the answer will tend to incriminate him. The judge orders him to answer. He does so and the answer does incriminate him. What happens?

Legal Techniques And Political Ideologies: A Comparative Study, Alexander H. Pekelis

Michigan Law Review

The problem with which we are going to deal is one of comparative law, a discipline probably even more illusory than legal science itself. A body of laws represents in itself neither a social reality nor a social ideal. One of the difficulties that every historian faces in trying to reconstruct a period of the past with the help of legal monuments is due to the great variety of relations existing between legal rules and social reality. So, e.g., legal monuments generally contain in an inextricable confusion at least two contradictory types of rules: rules which are a simple restatement …

Comparative Research And Unification Of Law, Hessel E. Yntema

Michigan Law Review

The current interest in international unification of law as a major objective of comparative legal research is significant testimony, in an era of accentuated nationalism, to the increasing solidarity of the modern world. In the development of this interest, Latin America has played a pioneer role. As early as 1826, the celebrated Congress convened at Panama envisaged in its deliberations what one of its members termed a "System of Public Law" for the Americas. The Congress of Montevideo of 1888-1889, anticipated by the Lima Congress of Jurists of 1878, produced the first substantial and successful codification of private international law, …

Corporate Proxies, Leonard H. Axe

Michigan Law Review

The earlier forms of corporations in England seem to have been political units and the normal mode of conferring corporate rights was by an issue of a charter from the crown, whereby a body of individuals was designated a corporation with the sovereign power to exercise appropriate privileges. Since the charter was issued by the crown, the corporation was considered a part of the government and each member of the corporation was entitled to one vote if given by him in person. As one writer has so well stated, this "was the result of a political philosophy which assumed that …

Antitrust During National Emergencies: I, Thomas K. Fisher

Michigan Law Review

In this article an examination will be made of the effect of previous national emergencies upon the enforcement and substantive content of the antitrust law. The extent to which the problem as presently constituted has counterparts in the past will be noted. Following the historical survey, consideration will be given to the several steps already taken to accommodate the law to the conditions of an economy in a war of world dimension. In conclusion, suggestions will be made for resolving certain aspects of the problem as yet unsatisfactorily answered. Before entering into a discussion of the past emergencies, a brief …

Taxation Of Annuity Contracts Under Federal Income Tax, Robert Meisenholder

Michigan Law Review

A number of questions dealing with the taxability of commercial annuity policies under death tax statutes have received judicial consideration. By contrast, only a few questions dealing with the taxability of these contracts under income tax laws have been raised before the courts. But the income tax problems are equally important in terms of tax liability. Moreover, they will in the future assume an even larger significance in view of the large number of annuity contracts of various types which have been issued and are now being offered by insurance companies. Accordingly some explanation of these problems is warranted.

Developments In The Conflict Of Laws, 1902-1942, Ernest G. Lorenzen

Michigan Law Review

The writer's interest in the conflict of laws coextends substantially with the life of the Michigan Law Review. This may be some excuse for attempting to trace some of the developments in this field in the intervening years. Let us consider first what has happened in this country and thereupon what has occurred in the rest of the world.

Italian Administrative Courts Under Fascism, Paul B. Rava

Michigan Law Review

Observers not wholly familiar with the administration of the present government of Italy are generally surprised by the fact that the Council of State, the supreme administrative court, is still an operating body after more than eighteen years of blackshirt revolution and domination. It seems strange that a dictator should have preserved this agency, which was established in order to bring justice into public administration, and which rapidly became the principal guardian of individual rights against administrative arbitrariness. One asks how the Council of State can, in a totalitarian state, continue to exercise its functions of administrative court and of …

Transactions Of The Supreme Court Of The Territory Of Michigan: A Review, Francis S. Philbrick

Michigan Law Review

Of the colonial documents that record the legal origins of our original states, those of Maryland have been published in relatively generous but still inadequate number, while collections for other states are still scantier. A sampling is all that a multiplicity of destructive agents have left us as a possibility. The hope, however, has recently become permissible that an awakened interest among lawyers may secure us, for publication, an expert sampling in place of that made by fire, vermin, mould, and official neglect in leaving us the records still surviving, and that lawyers may also give us proper editions of …

The Popularization Of Law, Huntington Cairns

Michigan Law Review

Law has been a major interest of the Western, and particularly the European, mind. Like physics it has provided a subject matter upon which many of the resources of the human intellect may be tested. It has yielded to many methods and, as a specialty with a circumscribed body of material, it has demanded the formulation of clear ideas so that interconnections are manifest and irrelevancies eliminated. Its great reward is the bestowal of the sense for style, which Whitehead has termed the ultimate morality of mind, and which is the product of specialization alone.

Revocation Of Wills By Subsequent Change In The Condition Or Circumstances Of The Testator, Elizabeth Durfee

Michigan Law Review

Among the oldest rules in the law of wills are those by which a will is held to be revoked by implication by certain changes in the circumstances of the testator. The purpose of this paper is to investigate these rules. Special reference will be made to statutes, both those which deal generally with the subject and those which provide specifically for the effect of particular events, such as marriage; no attempt will be made, however to analyze the latter type of statute exhaustively. By way of introduction, a brief historical survey of the doctrine should be made.

Excess Profits Taxation In 1941, Charles Victor Beck Jr., Jamille George Jamra, David L. Loeb

Michigan Law Review

The problems of business taxation are twofold: from the governmental standpoint, the problem is to obtain sufficient revenues at a minimum of cost and with the least resistance; from the business standpoint, the problem is to obtain lighter taxation where possible at a minimum of cost and with the greatest simplicity and uniformity. The excess profits tax has been devised by the economists of the several nations with the object of bolstering national taxing systems in extraordinary periods which demand abnormal revenues. With the advent of the excess profits tax, the desire for simplicity and low cost in taxation was …

Conditions And Limitations In Restraint Of Marriage, Olin Browder Jr.

Michigan Law Review

From ancient times it has been a practice of testators to provide for the termination of a devised estate upon the marriage of the devisee, or to make their gifts conditional upon a beneficiary's marrying in a prescribed manner. In this way, a parent may hope to extend beyond his death his influence over recalcitrant or irresponsible offspring. But restraints on marriage may have other purposes. More often than not, a testator, by limiting an estate until marriage or by providing for forfeiture upon marriage, may merely seek to assure the maintenance of a female beneficiary until a husband assumes …

The Evolution Of The "Duty To Bargain" Concept In American Law, Russell A. Smith

Michigan Law Review

Promotion of collective bargaining appears to be a governmental policy borne of the travails of economic emergency during World War I, though it was somewhat foreshadowed by the earlier attempt in the Erdman Act of 1898 to outlaw the "yellow-dog'' contract. It first gained recognition by certain of the individual branches of the administration II and was subsequently suggested as an over-all policy, along with recognition of the right of self-organization and other principles, by the War Labor Conference Board. This board was appointed in January, 1918, by the Secretary of Labor and consisted of nominees of the National Industrial …

Council And Court: The Handbill Ordinances, 1889-1939, James K. Lindsay

Michigan Law Review

The extent to which a municipality may regulate or prohibit the distribution of handbills and circulars on its streets and from house to house has been thoroughly considered by the courts in the last two years. These recent cases reveal one phase of a battle historically rich and presently important to the American people. It is the thrust of a principle-the right of free speech and press-against the encroachments of municipal governing bodies concerned with the practical problem of keeping their streets clean. The municipal official sees the problem thus: "One of the small but aggravating nuisances which most cities …

The Right Of Privacy, Louis Nizer

Michigan Law Review

It is only during the last half-century that the law has recognized the "right to be let alone"-the right under certain circumstances to protect one's name and physiognomy from becoming public property.

No mention of such a right will be found in the works of the great political philosophers and tract-writers of the seventeenth and eighteenth centuries-Hobbes, Locke, Rousseau, Montesquieu, Spencer, Paine. In discoursing on "natural rights," "the state of nature," "social contract," and "the inalienable rights of man," they were concerned only with the power of the state to abridge the liberties of the people. Society had not yet …

Instalment Payment Of Judgments, Frederick Woodbridge

Michigan Law Review

This article is concerned primarily with a discussion of satisfaction of judgments by instalment payments where the judgment debtor is the typical American wage earner. It is based upon an analysis of the applicable statutes, the experience recorded in decided cases, interviews with numerous judges administering the statutes, and observations in certain of the courts where that method is used.

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

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 Codification Of The French Customs, John P. Dawson

Michigan Law Review

A renewed attack on central problems of English legal history can gain fresh perspective from the history of French law. France and England entered the later middle ages with a common fund of legal and political institutions. Much of the area that was to be included in modern France was united with England under a common sovereign; political institutions were shaped by the same basic forces into similar forms of feudal organization; private law was largely composed of unformulated popular custom, remarkably similar even in detail. As early as the thirteenth century the tendencies toward divergence, both in law and …

Circuit Courts And The Nisi Prius System: The Making Of An Appellate Court, William Wirt Blume

Michigan Law Review

Judicial systems organized under the influence of the English tradition have exhibited a tendency to pass through four stages of development. (1) In the first stage the highest court (not taking into consideration legislative bodies) has final appellate jurisdiction and a superior original jurisdiction, civil and criminal. The court is composed of three or more judges who sit in bank for the trial of cases. The judges may sit at a central place or go on circuit throughout the territory. (2) In the second stage the highest court has both original and appellate jurisdiction but does not undertake to try …

Dean Bates And The Michigan Law School, Edwin C. Goddard

Michigan Law Review

From its opening in October, 1859, the Law School of the University of Michigan has been fortunate in the continuity of the service of the members of its faculty. The original faculty consisted of that remarkable trio, James V. Campbell, Charles I. Walker and Thomas M. Cooley. Instruction was given by lecture, and almost continuously for twenty-five years those three continued to expound the principles of the law to the students who flocked to the school.

Prohibition - Is The Writ Of Prohibition A Prerogative Writ?, Russel T. Walker

Michigan Law Review

The writ of prohibition originally issued from the king's temporal courts to the ecclesiastical courts to prevent any usurpation of jurisdiction of the king's courts by the spiritual courts. Prohibition has been classed as one of the prerogative writs, that is, a writ issued by the extraordinary power of the sovereign to interfere with private rights in order to preserve the prerogatives and franchises of the state. The writ of prohibition differed historically from the other prerogative writs in that its issuance was not discretionary with the court, but rather it was held to issue as a matter of right …

Contracts -- Right Of A Physician To Recover On An Implied-In-Fact Contract, Seward R. Stroud

Michigan Law Review

At one time, under the Roman civil law, neither a physician nor an advocate could recover in an ordinary action at law for services rendered. The philosophical interpretation put upon such services was that, each case being sui generis both as to the value of the service to the patient and as to the skill and attainment required of the physician, a fixed and invariable salary could not be predicated upon this basis and therefore the compensation must depend upon the case. This compensation was not a matter of right but a gratuity or honorarium, as it was called, paid …