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Full-Text Articles in Evidence

Recent Developments In Declaratory Relief, Edwin Borchard Jan 1936

Recent Developments In Declaratory Relief, Edwin Borchard

Faculty Scholarship Series

The way of the reformer, like that of the transgressor, is hard. It will be recalled that the Pennsylvania Supreme Court, after an excellent start in 1925 in the application of the procedure for a declaratory judgment in Karihey's Petition had fallen into regrettable error in a number of later cases by assuming that a declaratory judgment couldĀ· not be sought or granted when any other "established" remedy was available. This was in direct conflict with the express words of the Declaratory Judgments Act to the effect that declaratory judgments may be rendered "whether or not further relief is ...


An Indiana Declaratory Judgment, Edwin Borchard Jan 1936

An Indiana Declaratory Judgment, Edwin Borchard

Faculty Scholarship Series

It is an aphorism that the greatest enemies of law reform, and particularly of procedural reform, are the lawyers. A striking exemplification of the axiom may be found in Brindley v. Meara, decided by the Supreme Court of Indiana, November 18, 1935, 198 N. E. 301. That was the second of two appearances before the Supreme Court of the members of the advisory board of North Township, Lake County. They had already successfully brought an action for a declaratory judgment, construing a statute which determined that they and not the defendant, township trustee, had the power to select the persons ...


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 ...