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Articles 1 - 11 of 11

Full-Text Articles in Legal History

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 ...


State Indemnity For Errors Of Criminal Justice, Edwin Borchard Jan 1941

State Indemnity For Errors Of Criminal Justice, Edwin Borchard

Faculty Scholarship Series

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in ...


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 ...


Judicial Relief For Insecurity, Edwin Borchard Jan 1933

Judicial Relief For Insecurity, Edwin Borchard

Faculty Scholarship Series

In an earlier article' an attempt was made to criticize the narrowness of view which has limited the concept of "wrongs" and "cause of action” to committed delicts, and the concept of the judicial process, to their redress. This superficial view of legal relations and of the judicial function has obscured realization of the fact that harm is done and rights are impaired or jeopardized by mere dispute or challenge before and without any physical attack. The mere existence of an instrument, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims to the ...


Judicial Relief For Peril And Insecurity, Edwin Borchard Jan 1932

Judicial Relief For Peril And Insecurity, Edwin Borchard

Faculty Scholarship Series

In the United States, we are not accustomed to consider the theory of procedure as of profound importance. Possibly the extraordinary technicality of American procedure by reason of which substantive issues are so often relegated to practical oblivion by procedural tactics is in part responsible. At all events, the unsystematic and empirical method of embarking upon and concluding litigation seems to have developed a frame of mind somewhat indifferent to the theoretical function of the judicial process. For example, down to very recent days Justices of the United States Supreme Court gave expression to the view, now happily repudiated, that ...


Some Observations On The Law Of Evidence: Family Relations, Donald Slesinger, Robert M. Hutchins Jan 1929

Some Observations On The Law Of Evidence: Family Relations, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

E XCEPT In cases of necessity' the wife was incompetent to
testify for or against her husband at common law Coke
suggests that the reason for the rule lay in the fact that husband
and wife were one, and naturally could not be divided for the
purposes of testimony Although the courts soon got beyond this
doctrine, they insisted on the value of the rule. They argued that
spouses, though perhaps not physically identical, were identical
in interest. When disqualification by interest was removed, the
judges bad to take other ground, and did so in Stapleton v
Crofts.' There they ...


Some Observations On The Law Of Evidence -- Consciousness Of Guilt, Donald Slesinger, Robert M. Hutchins Jan 1929

Some Observations On The Law Of Evidence -- Consciousness Of Guilt, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

Consciousness of guilt is another state of mind that raises a
new set of legal and psychological problems. Wigmore dramatically
states its significance when he says:
"As an axe leaves its mark in the speechless tree, so an
evil deed leaves its mark in the evil doer's consciousness."
Again:
"The reliance is not upon the testimonial credit of a person,
but upon psychologic forces closely analogous to the
forces of external nature."
As a result, we are not here concerned, as in the case of state of
mind to prove an act, with the hearsay rule or an exception ...


Some Observations On The Law Of Evidence, Donald Slesinger, Robert M. Hutchins Jan 1928

Some Observations On The Law Of Evidence, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

Spontaneous utterances, exclamations or declarations are, under
certain conditions, admissible in evidence though the party who made
them does not take the stand. According to most courts the occasion
must be startling enough to cause shock, which in turn creates an emotional
state. The utterance must be made under stress of that emotion;
it must be "spontaneous and natural; impulsive and instinctive" ;
it should be immediate, or "so clearly connected (with the occasion)
that the declaration may be said to be the spontaneous explanation of
the real cause." Although in some jurisdictions there is insistence that
the declaration be "contemporaneous ...


Some Observations On The Law Of Evidence -- Memory, Donald Slesinger, Robert M. Hutchins Jan 1928

Some Observations On The Law Of Evidence -- Memory, Donald Slesinger, Robert M. Hutchins

Faculty Scholarship Series

T HE common legal assumptions in regard to memory come
most clearly to the surface in the rules governing present
recollection revived, past recollection recorded, and cross-examination
to impeach. Between the first two, sharp distinctions are
drawn which result partly from the fact that a memorandum used
to refresh recollection generally does not go to the jury as evidence
- whereas a memorandum of past recollection does - and
partly from the psychological theories of the courts.


The Uniform Act On Declaratory Judgments, Edwin Borchard Jan 1921

The Uniform Act On Declaratory Judgments, Edwin Borchard

Faculty Scholarship Series

The national conference of Commissioners on Uniform State Laws at its session in St. Louis in August, 1920, approved the first draft of a Uniform Act on Declaratory Judgments. At the next session of the Conference in 1921 the Act will probably receive final approval and be recommended to legislatures for enactment. The importance of the recommendations of this August body in promoting the enactment of legislation in our states warrants some comment upon the draft they have approved.


Jurisprudence In Germany, Edwin Borchard Jan 1912

Jurisprudence In Germany, Edwin Borchard

Faculty Scholarship Series

The Library of Congress is now undertaking the publication of a series of guides to foreign law. One of the objects of the enterprise is to acquaint the practitioner and the legislator with the legal institutions of foreign countries. Another of its objects is to show the evolution and present development of juristic thought abroad, and the extent to which a virile philosophy of law and a sound conception of the relation between law and social science have succeeded in creating a jurisprudence which has proved far more efficient than the common law in responding to the needs of present ...