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Yale Law School

Faculty Scholarship Series

Articles 31 - 60 of 99

Full-Text Articles in Legal History

Philosophical Issues In Contemporary Law, F. S. C. Northrop Jan 1957

Philosophical Issues In Contemporary Law, F. S. C. Northrop

Faculty Scholarship Series

PHILOSOPHY is the name for the basic methodological and theoretical assumptions
of a subject. Since every science uses some method of investigation
and any scientist who reports facts to his colleagues must express these facts
in words and, hence, introduce concepts and theory, it follows that any
science whatever is also a philosophy. When no facts arise, however, to
bring the traditional theory or methods of a subject into question, its problems
are not philosophical. Then to be a scientist one need not also be a philosopher.
Mathematics and physics were in such a state during the two hundred years ...


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 ...


Obstacles To A World Legal Order And Their Removal, F. S. C. Northrop Jan 1952

Obstacles To A World Legal Order And Their Removal, F. S. C. Northrop

Faculty Scholarship Series

T HE present need for a world legal order is obvious. In an atomic
age the settlement of international disputes by resort to force
rather than by recourse to law is so likely, if not absolutely certain,
to mean the end of civilization that it involves a risk which no wise
man, if he can avoid it, will take.
One may well ask why in the face of this fact, evident to all, recent
attempts at a legal world order have failed to achieve their goal. Certainly
the time has come when the cause of this failure must be determined ...


Tudor Social Transformation And Legal Change, Samuel E. Thorne Jan 1951

Tudor Social Transformation And Legal Change, Samuel E. Thorne

Faculty Scholarship Series

The century 1540-1640 in England was a period of profound
change, almost universally regarded as the dividing line between
the old and the new. At a point half-way in that hundred-year span
the educated Englishman's mind and world were still more than
half medieval; at its end they were more than half modern. Recent
work in fifteenth century agrarian history and investigations into
fifteenth century commerce and trade have blurred the black and
white of any abrupt transition from feudal to capitalist England
by emphasizing the non-feudal elements already at work in medieval
society and heralding its disintegration. In ...


Book Review: The Open Society And Its Enemies, Felix S. Cohen Jan 1951

Book Review: The Open Society And Its Enemies, Felix S. Cohen

Faculty Scholarship Series

DURING the Years of the Cold War it is well to remember the ancient
Chinese proverb: the first result of any war is that the adversaries adopt
each other's vices.
Today when the Open Society and its Enemies are locked in a bitter struggle,
it is painful to record how, step by step, each antagonist takes on the worst
features of its adversary. The Communist totalitarians who once denounced
capitalism for its huge expenditures on armaments, for its imperial control
of "backward" areas, for its long working hours, for its government control
of labor unions, and for the wide ...


The Trial Of Economic And Technological Issues Of Fact: Ii, George H. Dession Jan 1949

The Trial Of Economic And Technological Issues Of Fact: Ii, George H. Dession

Faculty Scholarship Series

WE have been considering the broad problems of economic and
technological proof. We are now concerned with the narrower question
of admissibility of the types of evidence which typically are available
and relevant in antitrust proceedings. The nature of these types will
become apparent in the course of the discussion. Grouped in relation
to evidential doctrines familiar in the general run of cases, they will be
discussed under the following heads: (a) Use of Judicial Notice; (b)
Business Entries, Trade Publications, Standard Works and Official
Records and Reports; (c) Specially Prepared Material; and (d) Expert
Opinion.


Book Review: Legal Philosophy From Plato To Hegel, Felix S. Cohen Jan 1949

Book Review: Legal Philosophy From Plato To Hegel, Felix S. Cohen

Faculty Scholarship Series

Huntington Cairns has provided lawyers, judges, and laymen with a long-needed guide to the thinking of professional philosophers on the perennial problems of the law. I think it safe to say that no better in- troduction to the subject has ever been written. Indeed, the book is so good that one's chief criticism must be that there is not more of it. Thir- teen major philosophers are included-if we accept as valid our author's characterization of two literary lawyers (Cicero and Bacon) as major philosophers. A good many important philosophical figures are omitted. No attempt is-made to convey ...


Book Review: To Secure These Rights: The Report Of The President's Committee On Civil Rights, Felix S. Cohen Jan 1948

Book Review: To Secure These Rights: The Report Of The President's Committee On Civil Rights, Felix S. Cohen

Faculty Scholarship Series

THE President's Committee has received a well-deserved accolade of praise
from the civilized, and of brickbats from the blood-fanatics, for its report on
civil rights in America, of which more than a million copies have been reprinted.
So far as I know, however, none of the commentators on this important
document has noted that it is not the first in its field. Some 78 years
before the landing of the Pilgrims, the first comprehensive report on the civil
rights of Americans was completed. In the concluding paragraphs of his
report, dated December 8, 1542, Fra Bartholomew de las Casas ...


Holmes-Cohen Correspondence, Felix S. Cohen Jan 1948

Holmes-Cohen Correspondence, Felix S. Cohen

Faculty Scholarship Series

"To have known Holmes," wrote Morris R. Cohen soon after the death of America's great jurist, "was to have had a revelation of the possibilities of . . . human personality. His conversation and bearing were like rare music that lingers in one's memory. One is fortunate to hear some reverberating echo of it. It is the function of the great biographer to catch such echoes, and from conversations, letters, and scattered writings reconstruct some idea of the original integrated life."' In this reconstructing of a life that is gone, yet still so much with all of us who value thought ...


The New Federal Rules Of Criminal Procedure: Ii, George .H. Dession Jan 1947

The New Federal Rules Of Criminal Procedure: Ii, George .H. Dession

Faculty Scholarship Series

INDICTMENT AND INFORMATION
The Grand Jury. In approximately half the States as well as in England
use of the grand jury as an investigative body," and of grand jury
indictment as a step in prosecution, has been largely abandoned.
This old institution has, however, been retained in federal practice
pretty much in the traditional common law form. The new Rules do
not change this as, indeed, they could not in view of the constitutional
guaranty that no federal prosecution for a "capital, or otherwise infamous"
crime (in practice, any felony) shall be had save on "presentment
or indictment" by a ...


Book Review: The Alien And The Asiatic In American Law, Felix S. Cohen Jan 1947

Book Review: The Alien And The Asiatic In American Law, Felix S. Cohen

Faculty Scholarship Series

This treatise on the two chief outcasts of our constitutional system, the
alien and the Asiatic, is a timely probing of the depth of our American democracy.
Its list of legal atrocities constitutionally committed upon Americans or
would-be Americans who did not have the foresight to be born in the proper
places has all the macabre fascination of old ethnology books which recount
the horrors found by missionaries among benighted peoples lacking properly
supported agencies of civilization and true religion.
Today, more than ever, such a study has meaning even for native-born
Americans of whitest ancestry. For none of us ...


The New Federal Rules Of Criminal Procedure: I, George H. Dession Jan 1946

The New Federal Rules Of Criminal Procedure: I, George H. Dession

Faculty Scholarship Series

ON March 21, 1946, a new set of rules of criminal procedure for the
federal courts went into effect. Hailed by former Attorney General
Homer Cummings as "a triumph of the democratic process," this
body of rules is the non-legislative product of a laborious, eight-year
enterprise which required the participation of a great many individuals
and groups throughout the United States, including judges, lawyers,
government officers, legal scholars, and committees of bench and bar.
In contrast with the unwieldy legislative codes of criminal procedure
of many of the states, these rules occupy but sixty small pages of large
print. In ...


Treaties And Executive Agreements A Reply, Edwin Borchard Jan 1945

Treaties And Executive Agreements A Reply, Edwin Borchard

Faculty Scholarship Series

The authors of the articles under reply, Messrs. McDougal and Lans, have, like McClure, essayed to show that the treaty and the executive agreement are interchangeable, and, since executive agreements are simpler to conclude, they advocate disregarding as obsolete the treaty-making power, requiring, as it does, the consent of two thirds of the Senate, and substituting for it the use of the executive agreement. In that demand they differ radically from the constitutional conclusions which the writer, as well as many other students of the subject, have reached. To give their proposal a more “democratic” tinge, the authors propose what ...


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 ...


The Present Method Of Taxing Trust Income: A Criticism And Proposed Revision, 51 Yale Law Journal 1143 (1942), Henry A. Fenn Jan 1942

The Present Method Of Taxing Trust Income: A Criticism And Proposed Revision, 51 Yale Law Journal 1143 (1942), Henry A. Fenn

Faculty Scholarship Series

SINCE the inception of the income tax in 1913 the taxation of trust
income has been an ever-vexing problem. Under the first income tax law
a trust was not treated as a separate taxable entity. The Act levied a
tax on the net income of all individuals, but merely required fiduciaries
to file "a return of the net income of the person for whom they act,
subject to this tax, coming into their custody" and to withhold the
normal tax. Because of the lack of a taxable entity against which the
tax could be levied, income collected by a trustee ...


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 ...


Minimum Standard Of The Treatment Of Aliens, Edwin Borchard Jan 1940

Minimum Standard Of The Treatment Of Aliens, Edwin Borchard

Faculty Scholarship Series

Its note of August 3, 1938, the Mexican Government, by its Minister of Foreign Affairs, contested the right of the United States to demand compensation for the agricultural lands of American citizens expropriated by Mexico since 1927. It asserted that the countries vigorously maintained “The principle of equality between nationals and foreigners, considering that the foreigner who voluntarily moves to a country... in search of a personal benefit, accepts in advance, together with the advantages which he is going to enjoy, the risks to which he may find himself exposed. It would be unjust that he should aspire to a ...


Relation Between International Law And Municipal Law, Edwin Borchard Jan 1940

Relation Between International Law And Municipal Law, Edwin Borchard

Faculty Scholarship Series

Recent events on this continent make it seem appropriate once more to discuss the much – debated question of the relation between international law and municipal law. For one school, the dualists, municipal law prevails in case of conflict; for the other school, the monists international law prevails. There are two special features about the debate which warrant mention: first, that while the disputants do not widely differ in the ultimate solution of practical problems, they do differ considerably in their major premises and in the resulting theories; and second, that the attempt of various countries on occasion to escape the ...


Supreme Court And Private Rights, Edwin Borchard Jan 1938

Supreme Court And Private Rights, Edwin Borchard

Faculty Scholarship Series

Some of the social-political theories which influenced the framers of the Constitution were derived from Locke, Hume, Harrington, Coke and Blackstone. These men were less concerned with forms of government than with the relation between society as a whole and its individual members. They were sure that the individual possessed certain indefeasible, primordial rights and that government was designed to protect these rights against encroachment by the state or by classes within it. Perhaps the most important of these private rights was that of property, associated by Locke with liberty and often identified with it.' Thus, the effort of the ...


Neutrality, Edwin Borchard Jan 1938

Neutrality, Edwin Borchard

Faculty Scholarship Series

Before 1914, it was hard to find much difference of opinion among American citizens about the proper policy of the United States in relation to foreign wars or even foreign affairs. That policy, with respect to Europe, was dictated by geographical factors and by a colonial and continental history that left little room for debate. Detachment from Europe's political entanglements, non-intervention in its internal affairs, and neutrality in its wars were the keynotes. After 1898 the acquisition of Asiatic possessions turned America to a Pacific orientation marked by uncertainty and the assumption of unnecessary risks. The desire to play ...


Taney's Influence On Constitutional Law, Edwin Borchard Jan 1936

Taney's Influence On Constitutional Law, Edwin Borchard

Faculty Scholarship Series

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name ...


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 ...


Conflicting Ideals For Reorganization, Roger S. Foster Jan 1935

Conflicting Ideals For Reorganization, Roger S. Foster

Faculty Scholarship Series

Most of the recent literature dealing with reorganization and the
reorganization amendments to the Bankruptcy Act has emphasized
reorganization procedure, and properly so. Abuses conceived to have
existed in the past have been primarily procedural. The general tenor
of reform objective has been to shift control over reorganization from
investment bankers to the security holders themselves or to public
authority.


International Law Of War Since The War, Edwin Borchard Jan 1934

International Law Of War Since The War, Edwin Borchard

Faculty Scholarship Series

In all revolutionary periods customary law tends to suffer from emotional attack and from the popular demand for shortcuts to salvation. The function of law as a guaranty of general security, as a source of reliance for the weak, as a necessary foundation for enterprise 'and commitments, as an alternative to force, corruption, and favoritism, is forgotten in the hysterical exaltation of panaceas, punitive methods, and radical departures from tried experience. This is usually accompanied by depreciation of tradition and precedent as obstacles in the way of the new revelation.


Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard Jan 1934

Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard

Faculty Scholarship Series

Precedent and time are the creators and preservers of customary law. So strong is the force of habit in human behavior that man in doubt or distress instinctively turns to past experience to see how his forbears dealt with similar problems. The law, which is the cement holding together the social structure, is, in its evolution as a conservative force, of necessity driven to search for precedents and to profit by them in building certainty and thereby security. Without landmarks there is no system; and for the very reason that international law is deficient in its lack of a legislature ...


Towards Legal Understanding: I, Walter Nelles Jan 1934

Towards Legal Understanding: I, Walter Nelles

Faculty Scholarship Series

The article has two aims: first to explain, and
if possible escape, confusion about what law is and what makes and
changes it; then to go on towards showing how, if at all, law may be
brought nearer to possessing in all its parts what was anciently considered
its essential characteristic-satisfactoriness to all socially tolerable
persons.


Towards Legal Understanding: Ii, Walter Nelles Jan 1934

Towards Legal Understanding: Ii, Walter Nelles

Faculty Scholarship Series

"Men make their own history," including their legal history. But
they make it "not under conditions chosen by themselves, but under
conditions found at hand, given and handed down."2 Though they
never leave conditions as they find them, they adapt old ways and beliefs
to new desires and interests, to persist, in spite of changes, in conditions
handed down.
An outline, necessarily attenuated, of salient changes in legal conditions
in successive periods of Anglo-American history has been carried
to the middle of the nineteenth century. It will be briefly interrupted
for a closer view of an ancient illusion whose ...


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 ...


From Indictment To Information -- Implications Of The Shift, George H. Dession Dec 1932

From Indictment To Information -- Implications Of The Shift, George H. Dession

Faculty Scholarship Series

RECALLING Bentham's assertion that the grand jury had been per-forming no useful function since the beginning of modern prosecu-tion, and remarking the unanimity of modern expert studies to the same effect, the Report on Prosecution by the National Commission on Law Observance and Enforcement concludes:

"that under modern conditions the grand jury is seldom better than a rubber stamp of the prosecuting attorney and has ceased to perform or be needed for the function for which it was established and for which it was retained throughout the centuries; that .... an unnecessary work burden upon the administration of justice .... should ...


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 ...