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Full-Text Articles in Law

Practical View Of The Eleventh Amendment: Lower Court Interpretations And The Supreme Courts Reaction, Jan Ginter Deutsch Jan 1973

Practical View Of The Eleventh Amendment: Lower Court Interpretations And The Supreme Courts Reaction, Jan Ginter Deutsch

Faculty Scholarship Series

The eleventh amendment1 recently has emerged from the obscurity which surrounded its first 170 years of existence. Several aspects of conĀ­ temporary political life have combined to cause heavier reliance on the amendment by state governments.2 The scope of government activity has widened to include areas previously under private control.3 In addition, due process and equal protection concepts have been expanded to include previously unrecognized claims against government defendants.4

Coupled with the broader interpretation of these constitutional protections is the heightened public interest in litigation against governmental organizations, evidenced by the increasing number of pro se ...


Public Order Under Law: The Role Of The Advisor-Draftsman In The Formation Of Code Or Constitution (With Harold D. Lasswell), George H. Dession Jan 1955

Public Order Under Law: The Role Of The Advisor-Draftsman In The Formation Of Code Or Constitution (With Harold D. Lasswell), George H. Dession

Faculty Scholarship Series

PROBLEMS of special gravity face the lawyer who serves as advisor or draftsman to a constitutional convention or a legislative body. The consequences of his advice, if it is taken, will reverberate large and long; and in the performance of his advisory functions he must take account not only of these consequences but of special obstacles as well. It is our purpose here to examine certain aspects of the advisor-draftsman's role in the making of a constitution or a legal code: his professional relation to his client, the community's representative; the special tools of knowledge and language employed ...


Declaratory Action The Next Step Beyond Equity, Edwin Borchard Jan 1946

Declaratory Action The Next Step Beyond Equity, Edwin Borchard

Faculty Scholarship Series

It is a commonplace that the equitable jurisdiction of the Court of Chancery owes its origin (a) to the inflexibility and rigidity of the common law; (b) to the inelasticity of the common law procedure; and (c) to the ineffectiveness or inadequacy of the remedies provided by the common law. It is not so well known that the same limitations, especially after the merger of law and equity, explain the necessity for relief from the restrictions of equity. Whereas it was intended that equity should be flexible, elastic, and effective in meeting all situations (thus, the Constitution of 1787 itself ...


Shall The Executive Agreement Replace The Treaty, Edwin Borchard Jan 1944

Shall The Executive Agreement Replace The Treaty, Edwin Borchard

Faculty Scholarship Series

In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the "undemocratic." valid and desirable preferably without congressional approval or, by a majority of Congress. 1300 executive agreements have been concluded history, as contrasted 900 i8 that up to 1928 only 15 for good reasons; treaties have been amended by have benefited the nation.

BASES OF THE PROPOSALS FOR CHANGE

The recent proposals for a change in the Constitution, either with or without benefit of a constitutional amendment, have their origin in several grievances and are said to derive moral support from several ...


Justiciability, Edwin Borchard Jan 1936

Justiciability, Edwin Borchard

Faculty Scholarship Series

It might be supposed that justiciability, the very foundation of the judicial function, would be a matter on which courts could hardly differ. Yet there seems to be the greatest confusion among the courts as to when an issue is and is not susceptible of judicial decision. This is largely due to a devotion to phrases and symbols which make historical investigation and theoretical analysis seem an unnecessary encroachment on the judicial prerogative. The very system of stare decisis invites courts to relieve themselves of the necessity of thinking through again ostensible propositions which seem to have once received the ...


Extra-Constitutional Limitations Upon Legislative Power, Walter F. Dodd Jan 1931

Extra-Constitutional Limitations Upon Legislative Power, Walter F. Dodd

Faculty Scholarship Series

THE appearance of Professor Haines' volume on The Revival of
Natural Law Concepts and the recent decision of the Supreme
Court of Oklahoma in Thomas v. Reid, present anew the issue
whether state legislatures are limited in their powers by restrictions
not found in the text of written constitutions. In the case
of Thomas v. Reid the court held invalid a legislative act requiring
a vote of sixty per cent of the qualified voters to authorize
the sale of a municipally-owned public utility, saying that majority
rule is one of the foundation stones of our government
and that the legislature ...


The Constitutionality Of Declaratory Judgments, Edwin Borchard Jan 1931

The Constitutionality Of Declaratory Judgments, Edwin Borchard

Faculty Scholarship Series

It is not uncommon in the United States for opponents of statutory reform, or even defendants against unwelcome suits, to advance the objection of unconstitutionality. Declaratory judgment statutes have not escaped this custom. Although it will strike an informed student as strange that the procedure for the rendering of declaratory judgments should be attacked as unconstitutional, the fact is that the issue has been raised in a number of American cases, though never in any other country. The special ground asserted has been that the declaratory judgment imposes on the courts powers non-judicial in character and that it requires them ...


Judicially Non-Enforcible Provisions Of Constitutions, Walter F. Dodd Jan 1931

Judicially Non-Enforcible Provisions Of Constitutions, Walter F. Dodd

Faculty Scholarship Series

In the constitutional law of the United States there is a natural tendency
to emphasize the judicial enforcibility of constitutional restrictions upon
legislative action. This field of our law tends thus to give primary weight
to a technical analysis of judicial decisions, at the expense of a consideration
of the wisdom and expediency of legislative and executive action.
Moreover, it largely overlooks a relatively large field of constitutional regulation
not supplemented by judicial enforcibility. We often compare to our
advantage the system of judicially enforcible constitutions with that of
many other countries in which written constitutions are not judicially enforcible ...


Government Responsibility In Tort Vii, Edwin Borchard Jan 1928

Government Responsibility In Tort Vii, Edwin Borchard

Faculty Scholarship Series

In addition to the historical doctrines justifying government irresponsibility, already discussed, it seems proper to review the more modern doctrines and theories advanced in the nineteenth and twentieth centuries either to deny or to support the responsibility of the State or other public corporation for the torts of its officers. The recognition of governmental responsibility for the torts of officers required certain political and social conditions which, until comparatively modern times, hardly prevailed in the western world. It was necessary for political theory to mature to a position according the individual a large measure of recognition for his personal rights ...


International Pecuniary Claims Against Mexico, Edwin Borchard Jan 1917

International Pecuniary Claims Against Mexico, Edwin Borchard

Faculty Scholarship Series

The Claims Commission which will ultimately be established to adjudicate upon claims of citizens of the United States and other countries against Mexico will have to decide some of the most interesting and practical questions of international law. Not the least important of these are the fundamental questions of the liability of the Carranza government for its own acts while a revolutionary faction (the Constitutionalists) and for those of the Huerta government it has displaced. An examination of these questions in the light of international law and precedents may not prove without interest. Assuming that the Carranza government will maintain ...