Legislation Commons^™

Woe Unto You Trade-Mark Owners, Julius R. Lunsford, Jr.

Michigan Law Review

THE new Trade-Mark Act,1 widely heralded as giving added protection to trade-mark owners, has in its nearly four years of operation resulted, in several spectacular instances, in narrowing the rights conferred by the registration and use of trade-marks. Text author Rudolph Callmann remarked after the act's first birthday: "Despite all the efforts of the bar, our courts still cling to the familiar anachronisms."2 Where do trade-mark owners stand today? The Supreme Court has to date failed to answer this question, and the federal courts have refused to consider the import of the new legislation. Many commentators, attorneys and scholars thought …

Constitutional Law-Civil Rights-Discharge Of Teachers For Subversive Activity, William H. Bates

Michigan Law Review

An action was brought seeking a declaratory judgment as to the constitutionality of New York's Feinberg law. The statute provided that the Board of Regents of the University of the State of New York should list organizations found to be subversive. Membership in such organizations was made prima facie disqualification for the position of public school teacher. At the time of suit the Board of Regents had made no listing of subversive groups nor had any teacher been discharged under the provisions of this enactment. The supreme court of New York, special term, held the law unconstitutional; the appellate division …

Contracts-Illegality-Effect Of Violation Of Assumed Name Statute, Gordon I. Ginsberg

Michigan Law Review

ln response to a subpoena, petitioner appeared as a witness before a United States district court grand jury. Several questions concerning· her knowledge and association with the Communist Party were put to her. In each case, she refused to answer the questions, claiming the constitutional privilege against self-incrimination. For refusal to answer these same questions when brought before the district court, petitioner was adjudged to be in contempt of court. The court of appeals affirmed the holdings, and certiorari was granted by the Supreme Court. Held, judgment reversed. The Smith Act makes it unlawful to advocate knowingly the desirability …

Federal Procedure-Removal Jurisdiction-Meaning Of "Separate And Independent'' As Used In The United States Judicial Code, Paul Harrison S. Ed.

Michigan Law Review

The respondent suffered a loss by fire, and being uncertain as to which party was liable to compensate for this loss, joined the petitioner and two others as defendants in a suit asking for alternative relief. The petitioner and one of the defendants were insurance corporations with residence outside the state, while the third defendant's residence was the same as that of the respondent. The corporate defendants secured removal of the case to the federal court, and on a trial of the issues, a judgment was rendered for the respondent against the petitioner in the amount of the insurance claimed …

Conflicts Of Law-Negotiable Instruments-Situs Of Bearer Bonds, Paul M.D. Harrison S.Ed.

Michigan Law Review

By a Vesting Order, the Alien Property Custodian vested in the Attorney General property of an enemy alien which consisted of a "certain debt or other obligation" underlying bonds issued by the defendant corporation. The defendant corporation was ordered to cancel the said bonds and deliver the proceeds of the redemption and accrued interest to the Attorney General. Upon the trial of the action brought by the Attorney General to enforce these demands, it appeared in evidence that the bond certificates had last been located in the Russian sector of Berlin, Germany, and were there seized by the occupying authorities. …

Limitations And The Federal Courts, William Wirt Blume, B. J. George Jr.

Michigan Law Review

Though as a practical matter it is difficult to secure passage of uniform legislation in all states, particularly when the subject matter has so long been considered as of local interest only, the need for such legislation in the case of the statute of limitations seems clear. To the extent that such a statute is adopted, the problem of varying limitation periods upon particular causes of action and similar causes of action will be removed. Only by a uniform state treatment of the problem will the conflict among federal districts resulting from the uniformity of result requirement of Erie Railroad …

Smith: Labor Law: Cases And Materials, Harry Shulman

Michigan Law Review

A Review of LABOR LAW: CASES AND MATERIALS. By Russell A. Smith.

The Legislative Status Of An Unconstitutional Statute, Earl T. Crawford

Michigan Law Review

Once a statute has been found to violate some constitutional provision, a legislature is faced with a difficult problem of how to change the statute so as to effect the desired policy and still not violate constitutional principles. The general nature of this problem is suggested by such inquiries as these: Will the subsequent overruling of a previous judicial decision declaring a statute unconstitutional require any legislative action to put the statute into effect? Can a statute, which has been held violative of the constitution, be amended by corrective or curative legislation without complete re-enactment if the statute as amended …

Our Legal System And How It Operates, Burke W. Shartel

Michigan Legal Studies Series

Five lectures delivered at the University of Michigan February 23, 24, 25, 26, and 27, 1948 on the Thomas M. Cooley Lectureship, enlarged and revised.

First, it is descriptive of the American legal system as it now exists, not of past law and not of legal systems in general. Second, it portrays the legal system as an operating institution. Third, I have given a large place to the discussion of language in relation to law. Fourth, I have given a considerable amount of space to a discussion of the ways in which statutes are made and interpreted. Fifth, technical ideas …

The Compulsory Manufacturing Provision-An Anachronism In The Copyright Act, Clinton R. Ashford S. Ed.

Michigan Law Review

The protection afforded foreign authors under the United States Copyright Act at the present time is subject to stringent restrictions. Copyright will not be granted to a person who is neither a citizen nor a resident of the United States unless he complies with a great many formalities, and, in addition, conforms with the compulsory manufacturing requirement. It is the object of this comment to examine the manufacturing provision, section 16 of the Copyright Law, and to show why it should be deleted from the act.

Tax Statutes-The Role Of Stare Decisis In Determining "Legislative Intent", Paul E. Anderson S. Ed.

Michigan Law Review

An interesting case history recently unfolded by the Supreme Court reveals a novel application of stare decisis to decisions which interpret an act of Congress. The peregrinations of the Court have caused Congress to intervene on two occasions to settle the questions opened by the Court-although on the second occurrence the Court construed the act precisely as had Congress when it decried the Court's first interpretation. This imbroglio issued from the Revenue Act of 1918 under which Congress provided that transfers "intended to take effect in possession or enjoyment at or after his death" should be included in the donor's …

The Constitutional Significance Of Delegated Legislation In England, J. A. G. Griffith

Michigan Law Review

The Committee on Ministers' Powers defined delegated legislation as the "exercise by a subordinate authority, such as a Minister, of the legislative power delegated to him by Parliament." This definition followed logically from the terms of reference which required the Committee to report "what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law."' Behind these two statements lie certain assumptions which coloured the Report of the Committee and influenced its recommendations. One of these assumptions is that Ministers of the Crown are "subordinate" to Parliament so that any …

Administrative Law-Federal Administrative Procedure Act-The Supreme Court Gives The Act Its First Interpretation, Fred W. Freeman S.Ed.

Michigan Law Review

The Federal Administrative Procedure Act received its first thorough consideration by the Supreme Court in the recent case of Wong Yang Sung v. McGrath. The Court held that deportation proceedings must conform to section 5, which provides for notice, opportunity for a hearing, separation of prosecution and quasi-judicial functions, and the issuance of declaratory orders by the agency, and to section 11, which prescribes an independent status for presiding officers. The scope of section 5 is limited to administrative adjudications "required by statute to be determined on the record after opportunity for an agency hearing." There is no specific requirement …

Labor Law--Taft-Hartley Act--Right Of Board To Dismiss Unfair Labor Practice Complaints For Policy Reasons, B. J. George, Jr.

Michigan Law Review

In recent months the National Labor Relations Board and its General Counsel, Robert N. Denham, have come to grips over the right of the Board to dismiss unfair labor practice charges on ground that to take jurisdiction would not effectuate the policies of the National Labor Relations Act. After unsuccessfully opposing the Board in several cases, Mr. Denham aired the controversy publicly, charging the Board with application of "their old Wagner Act formulae" when "the principle of the theory has been repudiated by the passage of the Taft-Hartley Act." The Board retaliated by revoking all the General Counsel's independent powers …

Legislation-Perpetuities-Some Recent Statutory Changes In The Law Of Perpetuities, Thomas L. Waterbury S.Ed.

Michigan Law Review

During the past five years the legislatures of several states have wrestled anew with an old problem, that of limiting the permissible duration of indirect restraints upon the alienation of property. Generally speaking, these statutes may be grouped into two classes: those designed to abandon previous statutory modifications of the common law rule against perpetuities and return to the common law rule; and those designed to modify the common law rule or alter existing statutory rules. With respect to the latter group, a further classification is possible between statutes which attempt a general revision of the law as to perpetuities …

International Law-Self-Executing Treaties-The Genocide Convention, William C. Gordon S.Ed.

Michigan Law Review

The crime of genocide is committed when a person is harmed because of his nationality, race or religion. Because of the number of offenses committed with genocidal motives during and before the last war, and the shortcomings of the customary international law rules on the subject, the General Assembly of the United Nations unanimously adopted a Convention on Genocide, which has been submitted for ratification by the members, including the United States.

The Proposed New Uniform Sales Act, John Barker Waite

Michigan Law Review

A complete Uniform Commercial Code has been formulated by committees acting under joint auspices of the American Law Institute and the National Conference of Commissioners on Uniform State Laws. While the Code is apparently not yet ready for presentation to state legislatures for enactment, it has been offered to the public for discussion of its merits. Its scope is comprehensive. As now tentatively proposed, it comprises presumably complete statutes covering Sales, Commercial Paper, Letters of Credit, Foreign Banking, Documents of Title, Secured Transactions, Investment Securities. If adopted it would displace the present Uniform Sales Act, the Uniform Negotiable Instruments Act, …

Taxation-Technical Changes Act Of 1949-"Possession Or Enjoyment" Clause Of I.R.C. 811 ( C), Paul A. Anderson S.Ed., Stephen A. Bryant S. Ed.

Michigan Law Review

For the past decade Congress has been urged to define specifically the scope of I.R.C. 811(c), which subjects to the estate tax an inter vivas transfer intended to take effect in possession or enjoyment at or after the donor's death. Until 1949 proposed amendments were largely directed at legislative rejection of the doctrine of Helvering v. Hallock, but with the decisions in the Church and Spiegel cases last year, it became apparent that more extensive revision and clarification was needed. Sections 7 and 8 of the Technical Changes Act of 1949, which became law on October 25, 1949, represent …

Alternative Pleading: I, Roy W. Mcdonald

Michigan Law Review

The present series of articles seeks to test the extent to which the dictates of this common professional experience have influenced the statutes, rules, and precedents which govern our civil practice. As a background for a review of procedures typical of the code and federal practice within the United States, it will be useful initially to consider briefly the English practice during the past century and a half. The English procedures, as they existed at the end of the eighteenth century, though everywhere locally modified and simplified in some respects, formed authoritative guides for the practices of most of the …

A Critique Of The New British Monopoly Act, Gerald M. Meier

Michigan Law Review

In 1948 the British Parliament passed the Monopoly and Restrictive Practices (Inquiry and Control) Act. It is instructive to examine this Act against the background of the criticisms and suggestions for improvement which have emerged with sixty years of American anti-trust legislation. Section one of this paper presents some reasons why the measure has appeared at this time. The next section summarizes the Act's provisions. Section three contrasts the British technique of monopoly control with the American and considers whether the different approach is likely to avoid the debilities which have become evident in the American legislation.

Federal Procedure-Change Of Venue-Applicability Of §1404(A) Of The Judicial Code Of 1948 To Cases Arising Under The Federal Employers' Liability Act And The Sherman Anti-Trust Act, Thomas L. Waterbury S. Ed.

Michigan Law Review

Two recent decisions of the United States Supreme Court have resolved this problem. In the first case, plaintiff employee sued defendant employer for damages under the FELA. Taking advantage of the broad choice of venue given him, plaintiff sued in the Chicago district court which was some 400 miles from Irvine, Kentucky, the place of injury and residence of all the witnesses. Defendant moved for transfer to a Kentucky district court, ''For the convenience of parties and witnesses, in the interest of justice. . . . " The motion was granted and plaintiff sought a writ of mandamus in the …

Administrative Terminology And The Administrative Procedure Act, Bernard Schwartz

Michigan Law Review

The confusion of terminology in our administrative law is a natural result of the manner in which that branch of law has developed. "The use of terms in administrative law exemplifies its most characteristic element-that it did not spring from a single source but has its roots in many places." The administrative process has not evolved according to a fixed plan; "thus far our Administrative Law has largely 'growed' like Topsy." With the haphazard habit characteristic of our political life, individual administrative agencies have been created as and when the need for them arose, without any logical system. The form …

Legislation-Canons Of Construction-Presumption Of Territoriality, David H. Armstrong S.Ed.

Michigan Law Review

Plaintiff, an American citizen, was employed by defendant contractor to work on construction in Iraq carried on under a contract with the United States. Plaintiff brought suit in New York for overtime pay under the Federal Eight Hour Law applying to work done under "Every contract made to which the United States ... is a party .... " A verdict for the plaintiff was upheld by the New York Court of Appeals. On certiorari to the United States Supreme Court, held, reversed. In absence of contrary intent, legislation is presumed to apply only within the territorial jurisdiction of the …

Labor Law-Railway Labor Act-Effect Of Creation Of National Railroad Adjustment Board On Jurisdiction Of Courts, Frank L. Adamson S. Ed.

Michigan Law Review

The 1934 amendments to the Railway Labor Act (R.L.A.) created the National Railroad Adjustment Board (N.R.A.B.) to hear and decide disputes involving employee grievances and controversies over application and interpretation of agreements, as distinguished from disputes concerning making of collective agreements.

Limitations On Congressional Investigation, George Meader

Michigan Law Review

Increasingly, federal laws embodying far-reaching national policies are being couched in broad and general terms. The effect of this type of legislation is to place wide discretionary powers in administrative officials and to throw upon the courts an immense burden of interpretation in applying general principles to specific factual situations. There have been sensational instances of hasty passage of corrective legislation made necessary by court decisions interpreting a poorly worded law in a way Congress did not intend, such as the portal-to-portal and overtime-on-overtime decisions. Meanwhile, the practicing lawyer is at a loss to advise his clients of the effect …

Hardwicke: Antitrust Laws, Et Al. V. Unit Operation Of Oil Or Gas Pools, Michigan Law Review

Michigan Law Review

A Review of ANTITRUST LAWS, ET AL. V. UNIT OPERATION OF OIL OR GAS POOLS By Robert E. Hardwicke.

Compulsory Licensing By Judicial Action: A Remedy For Misuse Of Patents, Neal Seegert

Michigan Law Review

Having viewed the fundamental problems, it is pertinent to outline some of the alleged abuses of the American patent system as it operates in our modern business and industrial economy and to canvass some of the proposed remedies. First are abuses that might be termed attempts to extend the duration of the patent monopoly. These stem mainly from the procedural aspects of the patent laws. Foremost among them is the problem of long pendency of applications, particularly the dilatory tactics that are possible under the law, which postpone issuance of the patent, thus extending the time duration of the patent …

Workmen's Compensation Acts-Amendments Changing Period For Additional Compensation Due To Aggravation Of Injury, W. Stirling Maxwell S. Ed.

Michigan Law Review

The typical workmen's compensation act provides both for an award to compensate the employee for his original injury and for subsequent awards to compensate him for aggravation of the injury occurring after the original award. The time during which the original award may be opened to allow additional compensation for subsequent aggravation may not be expressly limited, or opening may be limited to a stated time after the original injury or the last payment of the original award. By amendment, the legislature may either lengthen or shorten this period for opening. Whether such amendment applies to a claim for compensation …

The Presidential Succession Act Of I947, Ruth C. Silva

Michigan Law Review

The Constitution of the United States empowers the Congress to designate what officer shall act as President in case of the death, resignation, removal, or inability of both the President and Vice President. Recently the Eightieth Congress passed a statute under this grant of power. Although the new succession act is frequently alleged to be unconstitutional, it is similar to the first succession law enacted by the Second Congress, which contained many of the men who framed the Constitution and voted for its ratification. The law of 1792 provided that the President pro tempore of the Senate or, if the …

Coigne: Statute Making, Michigan Law Review

Michigan Law Review

A Review of STATUTE MAKING. By Armand B. Coigne.