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A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar Jan 1966

A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar

Articles

F the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer3 are any indication, Miranda v. Arizona' has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention.


Has The Court Left The Attorney General Behind? The Bazelon-Katzenbach Letters On Poverty, Equality, And The Administration Of Criminal Justice, Yale Kamisar Jan 1966

Has The Court Left The Attorney General Behind? The Bazelon-Katzenbach Letters On Poverty, Equality, And The Administration Of Criminal Justice, Yale Kamisar

Articles

Distribution of the first preliminary draft of the proposed American Law Institute Model Code of Pre-Arraignment Procedure last June touched off a brisk exchange of letters between Chief Judge David Bazelon of the United States Court of Appeals for the District of Columbia Circuit, who maintained that the proposed code left a good deal to be desired, and Attorney General Nicholas deB. Katzenbach, who, although he did not explicitly treat any provision of the preliminary draft, sharply challenged the conception of equality underlying Bazelon's criticism of it. By now, both the code, and the Bazelon-Katzenbach correspondence which it evoked ...


Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel Jan 1966

Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel

Articles

In Elfbrandt v. Russell, the Supreme Court, in a 5-to-4 decision, declared unconstitutional Arizona's requirement of a loyalty oath from state employees. At first glance, Elfbrandt appears to be just another decision voiding a state loyalty oath on limited grounds relating to the specific language of the particular oath. Yet, several aspects of Mr. Justice Douglas' opinion for the majority suggest that Elfbrandt is really of far greater significance: it may sharply limit the scope and coverage of loyalty oaths generally and, indeed, may presage a ruling invalidating all such oaths. Of course, only the Supreme Court can determine ...


Nonpopulation Factors Relevant To An Acceptable Standard For Apportionment, Jerold H. Israel Jan 1963

Nonpopulation Factors Relevant To An Acceptable Standard For Apportionment, Jerold H. Israel

Articles

Of the many problems left unanswered in Baker v. Carr,' the one that has received the most attention both from lower courts and commentators is that of prescribing a specific standard for determining what constitutes a denial of "equal protection" in legislative apportionment.2 The starting point universally accepted - indeed, probably required by Baker - for attacking this problem is the definition of apportionment equality in terms of mathematical measurement of the individual's "voting power."3 Perfect equality in apportionment is viewed as requiring that each election district contain an equal population, so that every individual's vote in his ...


Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel Jan 1963

Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel

Articles

During the 1962 Term, the Supreme Court, on a single Monday, announced six decisions concerned with constitutional limitations upon state criminal procedure. The most publicized of these, though probably not the most important in terms of legal theory or practical effect, was Gideon v. Wainwright. In an era of constantly expanding federal restrictions on state criminal processes, the holding of Gideon-that an indigent defendant in a state criminal prosecution has an unqualified right to the appointment of counsel-was hardly startling. And while Gideon will obviously have an important effect in the handful of states that still fail to appoint counsel ...


On Charting A Course Through The Mathematical Quagmire: The Future Of Baker V. Carr, Jerold H. Israel Jan 1962

On Charting A Course Through The Mathematical Quagmire: The Future Of Baker V. Carr, Jerold H. Israel

Articles

The Tennessee reapportionment decision, Baker v. Carr,' has been popularly characterized as one of the "very few judicial decisions which have fundamentally reshaped our constitutional system."'2 Newspaper and magazine commentators generally have predicted that the decision of last March is likely to "change the course of our history" by producing a drastic alteration in the balance of power on the state political scene.3 While this end may be desirable,4 any such estimate of the future impact of the Baker decision, at least insofar as its legal consequence is concerned,5 seems not only premature but somewhat exaggerated ...


Comment, The Consent Decree In Antitrust Enforcement--Analysis And Criticism, J. Dennis Hynes Jan 1960

Comment, The Consent Decree In Antitrust Enforcement--Analysis And Criticism, J. Dennis Hynes

Articles

No abstract provided.


Compulsory Joinder Of Parties In Civil Actions, John W. Reed Jan 1957

Compulsory Joinder Of Parties In Civil Actions, John W. Reed

Articles

The plaintiff in a civil cause ordinarily is permitted to select the persons with whom he will litigate. The initial designation of parties to an action is made by the plaintiff, and if he chooses to sue B and not A,' that is ordinarily of no concern to B or to A or to the court. So also where the plaintiff without A as co-plaintiff sues B. Not always, however, is the plaintiff permitted unfettered choice in naming the parties to his lawsuit. On the one hand there are persons whose relationship to the situation in litigation is outside the ...


Comment, Developments In The Law Of Coerced Confessions, Howard Klemme Jan 1954

Comment, Developments In The Law Of Coerced Confessions, Howard Klemme

Articles

No abstract provided.


Current Decision, Due Process--Use Of Blood Tests To Determine Intoxication Not Violative Of Due Process, Howard Klemme Jan 1953

Current Decision, Due Process--Use Of Blood Tests To Determine Intoxication Not Violative Of Due Process, Howard Klemme

Articles

No abstract provided.


Unrecognized Government Or State In English And American Law (Part 1), Edwin D. Dickinson Jan 1923

Unrecognized Government Or State In English And American Law (Part 1), Edwin D. Dickinson

Articles

From the decision of this novel case, reported as Pelzer v. United Dredging Co., we may infer that the New York courts regard unrecognized Mexico as a sort of legal vacuum. In granting the corporation's motion for judgment on the pleadings, the Supreme Court said: "The administratrix plaintiff is an officer of a foreign court. It is syllogistically true that if the foreign court has no recognized power here she may not assert a right derived through her appointment therefrom. The Mexican government is not de facto here, since recognition alone can make it so. It may have all ...


International Aspects Of Prohibition Enforcement, Edwin D. Dickinson Jan 1923

International Aspects Of Prohibition Enforcement, Edwin D. Dickinson

Articles

The Eighteenth Amendment to the Federal Constitution prohibits "the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes." 40 Stat. io5O, 1941. In the National Prohibition Cases. 253 U. S. 350, 386, the amendment was said to be operative "throughout the entire territorial limits of the United States." As originally enacted, the National Prohibition Act did not in terms define its territorial field, but a supplemental provision afterwards enacted declares that the act "shall apply not only to ...


Public Utility Valuation, Edwin C. Goddard Jan 1923

Public Utility Valuation, Edwin C. Goddard

Articles

It has been so often remarked that the "valuation" of public utilities is determined by no rule of thumb, that there are no fixed rules or formulas to guide courts or commissions, that determination of value as a rate base is matter of judgment and discretion in each case, Minnesota Rate Cares, 230 U. S. 352, 434, that the statement has come to be believed by reason in part of its much repetition. It is usually accepted as axiomatic. The glorious uncertainty resulting from such an admission will continue so long as judgments of one man or set of men ...


Unrecognized Government Or State In English And American Law (Part 2), Edwin D. Dickinson Jan 1923

Unrecognized Government Or State In English And American Law (Part 2), Edwin D. Dickinson

Articles

PROBABLY no one in the British Empire or the United States would question the doctrine that it belongs exclusively to the political departments to recognize new governments or states. The difficulties involved are those which arise in the application of a doctrine so broadly stated. Not every situation involving an unrecognized government or state requires the decision of a question of recognition. If the decision of a political question is not involved, then it is entirely proper for the courts to take cognizance of a mere de facto government or state. In what situations may the courts appropriately take account ...


Due Process Of Law In Procedure, Edson R. Sunderland Jan 1921

Due Process Of Law In Procedure, Edson R. Sunderland

Articles

There are two classes of cases which may arise under the "due process" provisions of the 5th and 14th Amendments of the United States Constitution, so far as rules of procedure are concerned. One embraces cases of new remedial processes which may be criticized as too radical. The other consists of cases of old processes which may be criticized as obsolete and out of harmony with prevailing conceptions of justice. Due process may thus be said to fill the wide space between those innovations which carry us so far away from established methods as to remove the safeguards which are ...


The Newberry Case, Ralph W. Aigler Jan 1921

The Newberry Case, Ralph W. Aigler

Articles

Senator Newberry of Michigan and sixteen others were convicted in the United States District Court on the charge that they "unlawfully and feloniously did conspire, combine, confederate, and agree together to commit the offense [in the Newberry indictment] on his part of wilfully violating the act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using and by causing to be given, contributed, expended and used in procuring his nomination and election at said primary and general elections, a greater sum than the laws of Michigan permitted and above ten thousand dollars," etc. The Act of ...


Verdicts, General And Special, Edson R. Sunderland Jan 1919

Verdicts, General And Special, Edson R. Sunderland

Articles

The most remarkable thing about this case of Georgia v. Brailsford is that a matter of such elementary importance in the daily administration of the law, after being announced in so dramatic a way by the Supreme Court of the United States at the very threshold of its career, could have dropped into oblivion for a hundred years only to be repudiated in a way hardly less dramatic by a sharply divided court. The controversy here disclosed goes to the very heart of the jury system as it has been developed by the common law and is still almost universally ...


The 'Source Of Law' In The Panama Canal Zone, Joseph H. Drake Jan 1919

The 'Source Of Law' In The Panama Canal Zone, Joseph H. Drake

Articles

A case just decided in the Supreme Court of the United States, coming to that court from the Canal Zone, shows the great difficulties under which our courts labor when they are called on to interpret and administer the law in our extra-continental possessions. The courts have apparently had the most difficulty in amalgamating the Roman law and the common law in cases involving questions of delictual liability. In the case of Fernandez v. Perez (1906), 202 U. S. 80, the procedural question was presented as to the validity of an action on the case for the wrongful levy of ...


Full Faith And Credit And Jurisdiction, Willard T. Barbour Jan 1918

Full Faith And Credit And Jurisdiction, Willard T. Barbour

Articles

The judgment of a sister state, when assailed by collateral attack, is often said to occupy a position intermediate between foreign and domestic judgments. Though the older American cases were inclined to examine into the merits of any foreign judgment, the present tendency is toward the adoption of the English view according to which a foreign judgment may be attacked collaterally only for want of jurisdiction or fraud. Dicey, Conflict of Laws (ed. 2) Ch. XVII; see note to Tremblay v. Aetna Life Insurance Co., 97 Me. 547, in 94 Am. St. Rep. 521, 538. But whereas any statement of ...


Inducing Breach Of Agreement By Employees Not To Join A Labor Union, In Order To Compel Unionization Of Plaintiff's Business, Horace Lafayette Wilgus Jan 1918

Inducing Breach Of Agreement By Employees Not To Join A Labor Union, In Order To Compel Unionization Of Plaintiff's Business, Horace Lafayette Wilgus

Articles

In Hitchnan Coal & Coke Compazy v. John Mitchell, et al., (Dec. 10, 1917), 38 Sup. Ct. 65, the novel question was presented to the Supreme Court of the United States, as to whether or not members of a labor Union could be enjoined from conspiring to persuade, and persuading, without violence or show of violence, plaintiff's employees, not members of the Union,-and who were working for plaintiff not for a specified time, but under an agreement not to continue in plaintiff's employment if they joined the Union, this agreement being fully known to defendants,-secretly to agree ...


Insurance Policies As Assets In Bankruptcy, Evans Holbrook Jan 1918

Insurance Policies As Assets In Bankruptcy, Evans Holbrook

Articles

The Supreme Court of the United States, in the recent case of Cohen v. Samuels, 38 Sup. Ct. 36, has put an end to a method, approved by some of the lower Federal Courts, whereby a person could create a fund which would be completely under his control but which would nevertheless be protected against any claim on the part of his trustee in bankruptcy. The circumstances in the principal case were as follows: Samuels had taken out ordinary life insurance policies, with the usual provisions as to loan and surrender values, payable to certain of his relatives as beneficiaries ...


Public Utility Valuation - Going-Concern Value In Rate Making, Edwin C. Goddard Jan 1918

Public Utility Valuation - Going-Concern Value In Rate Making, Edwin C. Goddard

Articles

What is the effect of a city ordinance which proposes to a public utility company the terms on which it may dispose of its product to the users, but which is rejected by the company? As to a company not yet doing business it is clear that the ordinance when rejected becomes a mere legal nullity. It never was more than an offer that might ripen into a binding contract by acceptance. That it is by no means a nullity as to a utility actually operating in the city after the expiration of its franchise and as a mere tenant ...


Race Segregation Ordinance Invalid, Henry M. Bates Jan 1918

Race Segregation Ordinance Invalid, Henry M. Bates

Articles

The opinion in Buchanan v. Warley reflects the confusion and difficulty of that troublesome problem, the place of the negro race in the United States, with which the case and the segregation ordinance of Louisville discussed therein are essentially concerned. The decision by a unanimous court reverses the holding of the Kentucky Court of Appeals, and declares that the ordinance violates the Fourteenth Amendment. This result is reached by one of those anomalous and objectionable devices which characterize our methods of solving fundamental constitutional questions. The case arose upon a bill for specific performance of a contract, whereby the plaintiff ...


Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates Jan 1918

Power Of The U.S. Supreme Court To Enforce Judgments Against States, Henry M. Bates

Articles

Four and one-half centuries later the "sovereign state" of Virginia sued the "sovereign state" of West Virginia to recover a sum of money alleged to be due upon the agreement of West Virginia to assume its proportionate share of the debt of the old state of Virginia. The suit was brought in the Supreme Court of the United States, which after prolonged consideration rendered judgment for the plaintiff. No execution or other compulsory process was issued, however. But now after delays for various reasons and pretexts urged by West Virginia the court is compelled to face the problem of what ...


The National Army Act And The Administration Of The 'Draft', Henry M. Bates Jan 1918

The National Army Act And The Administration Of The 'Draft', Henry M. Bates

Articles

In Arver v. U. S., and five similar cases attacking the validity of the so-called National Army Act of May 18, 1917, Public Statutes, No. 12, 65th Congress, c. -, - Stat. -. ) the Supreme Court unanimously sustained the validity of the Act so far as attacked. The contention that compulsory military service as provided in the Act is contrary to our fundamental conception of the nature of citizenship, and that such compulsion is repugnant to a free government and in conflict with the guaranties of the Constitution as to individual liberty, the Court disposed of summarily and completely by pointing out that ...


Child Labor Law Case, Commerce Power Of Congress And Reserved Powers Of The States, Henry M. Bates Jan 1918

Child Labor Law Case, Commerce Power Of Congress And Reserved Powers Of The States, Henry M. Bates

Articles

The decision in the Child Labor Law case, Hammer v. Dagenhart, - U. S. -, 62 L. ed. -, decided June 3, 1918, would have caused much less surprise twenty-five years ago than it did when announced last June, for it is based upon two constitutional provisions concerning which the much wider and more varied experience of the last quarter century had developed theories, better defined and sounder than those of the earlier period. Those two provisions are the Tenth Amendment regarding the powers reserved to the States and the Commerce Clause. There has been an astonishing amount of faulty reasoning about the ...


The Patentability Of A Principle Of Nature, John B. Waite Jan 1917

The Patentability Of A Principle Of Nature, John B. Waite

Articles

The extent to which courts will go in conceding patentability to a natural law, or principle of nature, is evidenced in the case of Minerals Separation Co. v. Hyde, 37 Sup. Ct. -, decided by the Supreme Court, December 11, 1916. It has always been more or less an axiom of patent law that the discovery of a principle of nature does not entitle the discoverer to a patent for it. The case usually thought of first as authority therefor, is that of Morton v. New York Eye Infirmary, 5 Blatch. 116, 2 Fisher 320. The patentees in that case had ...


What Service Gives Jurisdiction In Person, John R. Rood Jan 1917

What Service Gives Jurisdiction In Person, John R. Rood

Articles

On March 6th, 1917, the Supreme Court of the United States, in the case of McDonald v. Mabee, reversing the decision of the Supreme Court of Texas, in 175 S. W. 676, held that a judgment in foreclosure proceedings in which the defendant was served only by publication did not merge the cause of action so as to bar a suit on the original notes for the balance unpaid by the sale of the mortgaged property on the foreclosure, although the statute of the state declared such service sufficient to give jurisdiction in personam, and the defendant was a citizen ...


Public Utility Valuation, Edwin C. Goddard Jan 1917

Public Utility Valuation, Edwin C. Goddard

Articles

EVERY consideration of valuation of a public utility, whether for the purpose of condemnation for purchase or as a basis for fixing rates or permitting the issue of stock or bonds, must start from Sinyth v. Ames, and the rule therein laid down by HARLAN, J., at page 546: "We hold, however, that the basis of all calculations as to the reasonableness of rates to be charged by a corporation maintaining a highway under legislative sanction must be the fair value of the property being used by it for the convenience of the public. And in order to ascertain that ...


Limitations Upon The Use, After Sale, Of Patented Articles, John B. Waite Jan 1917

Limitations Upon The Use, After Sale, Of Patented Articles, John B. Waite

Articles

In the case of Motion Picture Patents Co. v. Universal Film Co., 37 Sup. Ct. 416, the Supreme Court has just rendered a decision which reverses the much discussed case of Henry v. Dick Co., 224 U. S. 1. The opinion was by a divided court, however, as three of the justices dissented, and Justice McREYNOLDS "concurred in the result" only. It can, therefore, hardly be said to settle the ultimate rule as in contradiction to that followed in Henry v. Dick Co., and discussion of the case is of something more than mere academic value. The facts were that ...