Legal Remedies Commons^™

Nuclear Power: Risk, Liability, And Indemnity, Harold P. Green

Michigan Law Review

In 1946, the Congress of the United States enacted the original Atomic Energy Act as the framework for development, control, and use of atomic energy. This Act provided for the transfer to the new Atomic Energy Commission (AEC), a civilian agency, of the entire atomic energy program which to that point had been conducted by the Manhattan Engineer District, a creature of the United States Army. The Act contemplated that the heart of the nuclear technology-the production of special nuclear material and the use of special nuclear material in both military and civil applications- would be a government monopoly. All …

Torts--Wrongful Death--Unborn Child--The Estate Of An Unborn Child Has A Cause Of Action For Wrongful Death--O'Neill V. Morse, Michigan Law Review

Michigan Law Review

The attitude of the law toward the unborn child has differed according to the area involved and its underlying concepts and policy. It has been settled en ventre sa mere be to his benefit. Legal recognition was accorded "for the purpose of providing for and protecting the child, in the hope and expectation that it will be born alive and be capable of enjoying those rights which are thus preserved for it in anticipation." In this context, the live-birth requirement is not surprising. The injustice of depriving a posthumous child of an inheritance is apparent only if the child is …

Admiralty--Torts--Recovery Permitted For Mental Suffering Of Surviving Spouse In Death Action Under General Maritime Law--In Re Sincere Navigation Corp., Michigan Law Review

Michigan Law Review

A recent federal district court decision, In re Sincere Navigation Corp. allowed recovery for the emotional distress of the spouse and the children of a seaman killed in a collision on the Mississippi River ·within the territorial waters of Louisiana. The action for ·wrongful death was brought under general maritime law through a new federal remedy first announced in Moragne v. States Marine Lines, lnc. Moragne did not specifically enumerate the elements of damage for which recovery would be allowed; instead it left the question open for consideration in later decisions. Whether any recovery was permitted under general maritime law …

Manageability Of Notice And Damage Calculation In Consumer Class Actions, Michigan Law Review

Michigan Law Review

This Comment will examine the likelihood that Rule 23, as it has been interpreted since its amendment, will provide a mechanism through which consumers may successfully resolve their grievances. The focus will be on the manageability problems of providing the requisite notice and of devising a method of calculation and distribution of damages.

Torts--Strict Liability--A Hospital Is Strictly Liable For Transfusions Of Hepatitis-Infected Blood--Cunningham V. Macneal Memorial Hospital, Michigan Law Review

Michigan Law Review

This Recent Development will briefly trace the development of hospital liability for transfusions of hepatitis-infected blood and will analyze both the impact of Cunningham on that area of the law and the correctness of the Cunningham decision.

Securities Regulation--Damages--The Possibility Of Punitive Damages As A Remedy For A Violation Of Rule 10b-5, Michigan Law Review

Michigan Law Review

Several lower federal courts have recently been faced with this issue and have reached conflicting results in their attempts to resolve it. This Note will examine both the problems of statutory interpretation and the policy considerations that are involved in deciding whether punitive damages should be awarded in civil actions based on violations of rule I0b-5.

Equity And The Eco-System: Can Injunctions Clear The Air?, Michigan Law Review

Michigan Law Review

On April 22, 1970, a number of private groups in the United States sponsored "Earth Day," an attempt to turn the attention of the population to matters of environmental concern. The dramatically favorable response to the idea of "Earth Day" suggests the extent to which more and more persons are becoming worried about ecological destruction. One of the methods of preventing that destruction, the obtaining of injunctions against industrial polluters, is the subject of this Comment. The central focus of this Comment is upon the injunction as a means of preventing air pollution, but most of the substance is equally …

Attachment And Garnishment--Constitutional Law--Due Process Of Law--Garnishment Of Wages Prior To Judgment Is A Denial Of Due Process: The Sniadach Case And Its Implications For Related Areas Of The Law, Michigan Law Review

Michigan Law Review

The question of the constitutionality of prejudgment wage garnishment had never before reached the Supreme Court, although in McKay v. Mclnnes, a 1929 memorandum decision, the Court had upheld a statute providing for prejudgment attachment. McKay, which was cited as controlling by the Wisconsin court in its disposition of the constitutional argument in Sniadach, involved an attachment of realty and stock to satisfy a debt. Justice Douglas, writing for the Court in Sniadach, distinguished that case from one involving wage garnishment with the statement that "[a] procedural rule that may satisfy due process for attachments in general ... …

Res Judicata/Preclusion By Judgment: The Law Applied In Federal Courts, Allan D. Vestal

Michigan Law Review

Preclusion is not a simple principle; it is a multifaceted concept affected by a number of relevant variables. A discussion of the principles is meaningful only if specific situations are discussed; to talk in generalities is not profitable. Therefore, for the sake of clarity, this Article will consider several typical situations.

Labor Law-Arbitration And Award-Judicial Review Of Labor Arbitration Awards Which Rely On The Practices Of The Parties, Michigan Law Review

Michigan Law Review

Modem collective bargaining agreements typically provide for private arbitration as the means of resolving disputes between employees and management over the interpretation and application of the agreement. In the event the arbitrator's decision is challenged in court by the adversely-affected party, the question of how much judicial deference should be given to the private ruling becomes of some importance. The Supreme Court has set out guidelines which purport to define the proper role of courts in such disputes-that role being for the most part one of judicial deference to arbitrator's decisions. Nevertheless, the appropriate scope of judicial review remains unclear. …

The Elementary And Secondary Education Act The Implications Of The Trust-Fund Theory For The Church-State Questions Raised By Title I, Jon Feikens

Michigan Law Review

The issues raised by the granting of federal aid both to education in general and to non-public education in particular have caused considerable controversy in recent years. Although several federal statutes dealing with various aspects of both types of aid had been enacted previously, the early 1960's saw an increased desire on the part of Congress to enter this area with a comprehensive plan. Finally, in 1965, the question of aid to education in general was resolved in favor of carrying the war on poverty to the elementary and secondary schools. Simultaneously, a so-called "church-state settlement" was reached whereby it …

Sec Enforcement Of The Rule I0b-5 Duty To Disclose Material Information-Remedies And The Texas Gulf Sulphur Case, Edmund B. Frost

Michigan Law Review

On April 16, 1964, the Texas Gulf Sulphur Company announced one of the most significant mineral discoveries of the twentieth century-a major copper and zinc deposit near Timmins, Ontario, found by means of geophysical exploration and exploratory drilling. Unusual market activity prior to this announcement prompted a Securities Exchange Commission (SEC) investigation of insider stock transactions. In April 1965, the SEC brought suit against a group of Texas Gulf insiders, alleging that their purchase of stock on national exchanges before the disclosure of the information concerning the Timmins strike constituted a violation of section 10(b) of the Securities Exchange Act …

Damages-Compensation For Curtailment Of Life Expectancy As A Separate Element Of Damages-Downie V. United States Lines Co., Michigan Law Review

Michigan Law Review

While plaintiff was aboard ship as an employee of the defendant, he suffered a heart attack which was aggravated by the negligence of one of defendant's employees. In suing under the Jones Act for damages caused by this aggravation of his condition, plaintiff sought recovery for the eight year curtailment of his life expectancy as a separate and distinct item of damages, independent of the economic loss sustained as a result of such curtailment. The jury made a general award of $86,900 of which $25,000 was a special award for the curtailment of plaintiff's life. On defendant's motion, the trial …

Seller's Damages Following Resale Under Article Two Of The Uniform Commercial Code, Robert J. Nordstrom

Michigan Law Review

The seller's right to resell contracted-for goods following a breach by the buyer is set forth in section 2-706 of the Uniform Commercial Code (Code). That section also contains a statement of the conditions placed upon the exercise of that right and provides the measure of recovery if the resale is made "in good faith and in a commercially reasonable manner":

[T]he seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach.

In …

Divestiture Of Illegally Held Assets: Observations On Its Scope, Objective, And Limitations, William T. Kerr

Michigan Law Review

"Divestiture has been called the most important of antitrust remedies. It is simple, relatively easy to administer, and sure." This observation was made with reference to an order requiring divestiture of illegally held stock. In the context of the divestiture of illegally held assets, however, the statement is an oversimplification of myriad complex problems. This Comment will examine the difficulties encountered in eliminating the anticompetitive effects of a fully consummated merger found to have violated section 7 of the Clayton Act. No attempt will be made to assess the substantive doctrine upon which the violation in any instance was based, …

Sabbatino Doctrine Modified In Foreign Assistance Act Of 1964, Michigan Law Review

Michigan Law Review

Prior to Banco Nacional de Cuba v. Sabbatino, one of the United States Supreme Court's most controversial recent decisions touching on matters of international law, it had been held that American courts could not question titles to property acquired by virtue of a public taking decreed by a recognized foreign government and carried out within its territory. This concept of judicial abstention, embodied in the "act of state doctrine," was held applicable in Sabbatino even though it was alleged that the asserted claim to the property stemmed from a confiscation that violated customary international law. This decision led Congress …

Judgment Against Insured Is Conclusive Proof Of Amount Of Claim Against Dissolved Insurer- Commonwealth Ex Rel. Woodside V. Seaboard Mut. Cas. Co., Michigan Law Review

Michigan Law Review

Plaintiffs, injured in an automobile accident, brought suits against an insured taxicab company. Before the case came to trial, the insurance commissioner found the insurer insolvent. In a separate proceeding he obtained a court order dissolving the insurer, enjoining the prosecution of any legal action against the insurer's assets, and providing for the filing of proof of claims with the insurance commissioner. The insurer's attorney, who had entered an appearance on behalf of the taxicab company, withdrew, and in an undefended action the plaintiffs recovered judgments against the cab company totalling nineteen thousand dollars. Unable to obtain execution on these …

Federal Law Held To Govern Effect Of The Release Of A Joint Tortfeasor In Private Antitrust Suit-Winchester Drive-In Theatre, Inc. V. Twentieth Century Fox Film Co., Michigan Law Review

Michigan Law Review

Private antitrust litigation occasionally raises the question of whether state or federal law should be applied to determine the effect of the release of a joint tortfeasor. When federal law is applied, as it was in Winchester Drive-In Theatre, Inc. v. Twentieth Century-Fox Film Co., there remains the necessity of formulating a rule of federal law, since there appears to be no established federal rule governing releases in antitrust suits.

Proof Of Scienter Necessary In A Private Suit Under Sec Anti-Fraud Rule 10b-5, Michigan Law Review

Michigan Law Review

Of the vast amounts of statutory and quasi-statutory material governing the securities business, the Securities and Exchange Commission's rule 10b-51 has potentially the greatest direct importance to the largest number of people. While several provisions in the government's regulatory scheme set more or less specific standards of conduct for securities issuers, broker-dealers, or corporate insiders, the anti-fraud provisions of rule 10b-5 apply to all persons directly or indirectly connected with any sale or purchase of securities transacted through a facility of interstate commerce, the mails, or on a national exchange. In its three clauses, rule 10b-5 forbids any person (1) …

The Economic Treatment Of Automobile Injuries, Alfred F. Conard

Michigan Law Review

The automobile has changed more than Americans' ways of transportation. It has changed their ways of housing, of working and playing, of eating, living, and loving. It has also added to their ways of suffering and dying.

The suffering and dying have called forth two kinds of treatment. The better recognized kind is medical treatment, which staves off death and minimizes pain and disability among the living. The less recognized kind of treatment is economic-the restoration to the injury victim or to his dependents of some part of the economic wellbeing that has been snatched away from them by loss …

Latin-American Land Reform: The Uses Of Confiscation, Kenneth L. Karst

Michigan Law Review

This article examines the legislative techniques for taking land, showing their confiscatory operation. For many lawyers, the analysis would then be easily completed: confiscation is wrongful and must be condemned. Rejecting the implicit absolutism of that conclusion, this article inquires into the justifications that can be pleaded on behalf of selective confiscation as an aid in solving some of Latin America's economic and social ills.

Admiralty- Shipowner's Right To Indemnification For Loss Caused By Latently Defective Gear Supplied By Nonnegligent Stevedoring-Compnay, John W. Erickson

Michigan Law Review

Defendant stevedoring company contracted to perform stevedoring services for plaintiff shipowner. Pursuant to its agreement to supply gear for the job, the stevedoring company supplied a latently defective rope, the breaking of which caused injury to a longshoreman, an employee of the stevedoring company. The longshoreman obtained a judgment against the shipowner under the doctrine of unseaworthiness, and in a separate action the shipowner sought indemnification from the stevedoring company. The district court, finding the stevedoring company not negligent, denied recovery. The Court of Appeals for the Ninth Circuit affirmed, one judge dissenting. On certiorari to the United States Supreme …

Federal Civil Procedure-Existence Of Federal Cause Of Action For Abuse Of Federal Process, Laurence D. Connor

Michigan Law Review

Petitioner was served with a subpoena ordering him to appear before the House Committee on Un-American Activities. He subsequently brought an action in federal district court asking for damages and injunctive relief and praying that the subpoena be declared void and of no effect. He alleged it had been signed in blank by the Committee chairman and that respondent, an investigator for the Committee without delegated subpoena power, had filled in petitioner's name without authorization and caused it to be served on him at his place of employment. Petitioner also alleged that respondent intended to subject him to public shame …

Management And Labor Appraisals And Criticisms Of The Arbitration Process: A Report With Comments, Dallas L. Jones, Russell A. Smith

Michigan Law Review

Although arbitration as a means of resolving disputes arising under collective bargaining agreements has received widespread acceptance in this country/ in recent years there has been some evidence of increasing criticism of the process. As part of a research project dealing with the impact of the 1960 Supreme Court decisions in the Warrior & Gulf "trilogy" and the 1962 Sinclair "trilogy," we decided to ascertain how parties are appraising the arbitration process. We report here the more significant results of this survey along with our evaluation of the criticisms and suggestions which were received.

Torts-Joint Tort-Feasors--Release Of One Not Release Of All, Karen M. Swift

Michigan Law Review

Plaintiff, a woman who had been struck by a taxicab, underwent treatment by defendant-physician. After eight months under defendant's care, she accepted his assurances that she would fully recover, and executed a general release in favor of the taxi driver. Plaintiff subsequently discovered, however, that the defendant had been negligent in his treatment of her both before and after the execution of the release. In a malpractice action before the Supreme Court of New York judgment was entered in favor of the plaintiff, and defendant appealed. The Appellate Division dismissed the original complaint, holding that the general release discharging the …

Radiation Injuries And Time Limitations In Workmen's Compensation Cases, Samuel D. Estep, Walter R. Allan

Michigan Law Review

The increasing use of radioactive materials and radiation-producing devices in industry and elsewhere makes it clear that injuries from exposure to radiation must be anticipated. It becomes relevant, therefore, to inquire into the extent to which the present workmen's compensation statutes will be able to cope with the injuries which may arise from the use of this new source of energy.

The Judicial Treatment Of The Automobile Dealer Franchise Act, J. Patrick Martin

Michigan Law Review

The representatives of the auto industry initially viewed the act with a jaundiced eye and warned that this special class legislation6 would radically change the existing case law by allowing the dealer to win where formerly he would have lost. However, the court decisions under the act have not borne out such dire predictions. This discussion will examine what has, in fact, been the judicial interpretation and treatment of the act.

Antitrust-Clayton Act-Admissibilty Of Criminal Conviction Entered On A Plea Of Guilty As Prima Facie Evidence In Civil Suit For Treble Damage, Arthur M. Sherwood

Michigan Law Review

In a civil action for treble damages under section 4 of the Clayton Act, the plaintiff sought to allege as prima facie evidence of a Sherman Act violation a criminal conviction entered on a plea of guilty by the defendant in an earlier prosecution by the government. The trial court sustained a motion by the defendant to strike from plaintiff's complaint any reference to the criminal prosecution. On appeal, held, reversed, one judge dissenting. A judgment entered on a plea of guilty is not a consent judgment within the meaning of the proviso to section 5(a) of the Clayton …

Administrative Law-Primary Jurisdiction-Availability Of Common-Law Reparations Remedy Following Commission Finding Of Unreasonable Practice Under The Motor Carrier Act, James D. Zirin

Michigan Law Review

The petitioner delivered goods to respondent, a common carrier by motor vehicle, for shipment from Buffalo, New York, to New York City, with the route of shipment left unspecified. The goods were shipped over the carrier's interstate route at a higher tariff filed with the Interstate Commerce Commission rather than over its intrastate route at the lower tariff filed with the New York Public Service Commission. Alleging causes of action under the Motor Carrier Act and at common law, the petitioner brought a postshipment action in a federal district court seeking reparation of the difference paid. The court, after a …

Securities Exchange Act Of 1934--Cml Remedies Based Upon Illegal Extension Of Credit In Violation Of Regulation T, Robert G. Lane

Michigan Law Review

Following the stock market crash of 1929, there was considerable agitation for the regulation, and even the elimination, of the purchasing of securities on credit. Indeed, the extension of credit for the purchasing of securities became an issue in the 1932 presidential campaign and finally, in 1934, came under direct federal control. Although the federal regulations were intended to eliminate the hazards associated with the extension of credit for the purchasing of securities, all the available evidence indicates that the substantial amount of credit in the stock market was a significant factor in pushing up prices during the bull market, …