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Appendix: Opinion On Some Constitutional Problems—The Rule Of Law, Kenzo Takayanagi

Washington Law Review

Translator's Note: On July 19, 1963, at the 114th plenary session of the Commission on the Constitution, the late Professor Kenzo Takayanagi, its chairman, submitted a long opinion on constitutional problems. It was published as a 76-page appendix to the minutes of that session. The opinion was organized into nine sections: General Problems (an evaluation of the process of enactment, constitutional revision, constitutional interpretation, and the written style of the Constitution totalling 8 pages); The Emperor (7 pages); The Renunciation of War (9 pages); The Rule of Law (24 pages); The Parliamentary Cabinet System (19 pages); Finances (3 pages); Local …

Japanese Judicial Review Of Legislation: The First Twenty Years, Dan Fenno Henderson

Washington Law Review

The shift in 1947 from a political to a legal (or justiciable) constitution of Anglo-American design meant also a shift from professors to the courts as the authoritative expounders of the Constitution, though of course the leading critics and synthesizers are still the scholars. Soon followed, for the first time, a body of Supreme Court decisions which became the detailed sources of constitutional law, presaging adoption throughout the legal profession of a new juristic method in the public law field using scholarly theories where appropriate but rooted in case analysis. These changes in professional roles, sources and methods have caused …

Twenty Years Of Revisionism, H. Fukui

Washington Law Review

It would seem most natural that the 1947 Constitution of Japan should have been the target of strong revisionist pressure in the years following its promulgation, considering its contents and the special circumstances of its making. However, looking back upon the developments in this revisionist movement, one is struck by the degree of ambivalence and confusion in the attitudes of both the proponents. and opponents of revision and by the apparent failure of the former to effect revision. It is my view that these two impressions are very intimately interrelated and that an understanding of this relationship is necessary if …

Pollitical Questions And Judicial Review: A Comparison, Kisaburo Yokota

Washington Law Review

Although the power of judicial review is granted in unmistakable terms, Japanese courts have proceeded with great caution and discretion in their exercise of the power. One aspect of the Japanese courts' caution is illustrated by its use of the political question doctrine. Under this doctrine the judicial branch recognizes the validity of determinations of the political branches and does not review them to see whether they conform to the Constitution. The rationale is that the Constitution itself places some questions solely under the competence of the political branches of the government.

Treaties And The Constitution, Isao Sato

Washington Law Review

Problems of the validity of treaties in a constitutional order concern aspects of both international and constitutional law. The chief concern of this article, however, is the effect of the Japanese Supreme Court's power of judicial review upon the validity of treaties in domestic law. The relationship of treaties and the Constitution long has been a favorite theme of Japanese international law scholars. Under the new Constitution it has become an urgent and unavoidable issue for constitutional law scholars as well; the present constitution, unlike the Meiji Constitution, has provisions, (Articles 81 and 98), which bear directly upon the problem.

Judicial Review Of Administrative Actions In Japan, Ichiro Ogawa

Washington Law Review

The reform of administrative litigation under the new Constitution involves a shift from an "administrative state" to a "judicial state." This does not mean, however, that the system of administrative litigation is now the same as the system in the Anglo-American "judicial state." The distinction between public and private law is still maintained in Japan, and "administrative acts" (Gyosei-koi) are regulated by principles of public law quite different from rules applicable to private persons.

The "Right Of Silence" In Japanese Law, B. J. George, Jr.

Washington Law Review

The concept of a right of silence, particularly in the case of an accused person, was totally unknown in traditional Japanese law. Tokugawa procedure made no clear-cut distinction between civil and criminal or judicial and administrative proceedings; those embroiled in disputes were expected, indeed required, to make full revelation of everything which bore on the propriety of their activity. In what today would be a criminal proceeding, the defendant was expected to respond to questioning; and he could be tortured until he made the requisite statement. During the first decade or two of the Meiji period (1868-1912) some changes were …

Protection Of Property Rights And Due Process Of Law In The Japanese Constitution, Nobushige Ukai, Nathaniel L. Nathanson

Washington Law Review

Some writers find a reflection of the due process clauses of the fifth and fourteenth amendments of the United States Constitution in Article 31 of the 1946 Japanese Constitution. Article 31 provides: "No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Obviously there are disparities as well as similarities between this article and the American due process clauses. Since the Japanese Constitution was framed under the direction of the Supreme Command Allied Powers (SCAP), during the allied occupation, the similarities are not surprising. Many of …

The Public Welfare Standard And Freedom Of Expression In Japan, Lawrence W. Beer

Washington Law Review

This article analyzes the constitutional right of free expression, exercised by political demonstrations, in the political context of contemporary Japan, where consensus among political parties on the constitutional framework itself is lacking. The Japanese people possess an unusually strong sense of cultural unity, and strong emphasis is placed on harmony and consensus in social relations. On the other hand, the excesses and strident tone of many mass demonstrations strikingly illustrate the absence of consensus between groups and the pervasive tendency toward "groupism" which distinguish the Japanese from the American political setting. Although the sociopolitical tensions may have become great in …

Procedural Due Process In Administrative Law: Some Thoughts From The French Experience, Richard L. Herrmann

University of Michigan Journal of Law Reform

As administrative law has grown so have the suggestions for change and reform. During the last thirty years a recurrent proposal has been that Congress create a federal administrative court. The first such bill was introduced in 1933 by Senator George Norris. In the same year the American Bar Association also championed the creation of such a court. Bills advocating an administrative court were again introduced in the Seventy-Fourth, Seventy-Fifth, and Seventy-Sixth Congress. The most recent proposal came in 1949. None were ever passed.

Smit, Ed: International Co-Operation In Litigation: Europe, Vittorio S. Denti

Michigan Law Review

A Review of International Co-operation in Litication: Europe edited by Hans Smit

The Max-Planck-Institute: Liability Of The State For Illegal Conduct Of Its Organs, Pierre Mathijsen

Michigan Law Review

A Review of Liability of the State for Illegal Conduct of its Organs by The Max-Planck-Institut für Ausländishces Öffentliches Recht und Völkerrecht

Control Of Foreign Investment In France, Charles Torem, William Laurence Craig

Michigan Law Review

The principle of freedom of investment by foreigners in France has, with few statutory exceptions, long been recognized in French law. In practice, however, exchange controls, requiring French government authorization for all foreign exchange transactions within France, have supplied the legal foundation for governmental control of foreign investment. Initiated in 1939 as a wartime measure to stem the outflow of the nation's currency to safer havens,1 exchange controls were continued in the postwar era to protect a weak currency and were elaborated, in piecemeal fashion, to suit diverse and changing governmental policies. The complex and pervasive regulations provided an instrument …

Comparative Conflict Resolution Procedures In Taxation: An Analytic Comparative Study, L. Hart Wright, Jean Van Houtte, Pierre Kerlan, Helmut Debatin, James Arthur Johnstone, H. Schuttevaer, Elizabeth G. Brown

Michigan Legal Studies Series

Tax administrators in well developed countries rarely have either occasion or opportunity to compare experiences or exchange opinions regarding procedures and practices utilized in administering complicated tax laws. Moreover, there is little comparative literature on the subject. Even the tax institutes which are internationally oriented usually focus on substantive tax principles, not procedures and practices. Hopefully, therefore, administrators in highly developed countries will find useful this analytic comparison of practices and procedures through which six of their number resolve disputable income tax questions -administratively and judicially.

Concern for tax administrators in well developed countries, however, was not the prime motivation …

Freedom Of Movement In Latin America, Daniel C. Turack

Duquesne Law Review

Today, nationals of many member States of the Organization of American States no longer require a valid national passport to visit other member States. The present standards of freedom of movement emerged as a result of waiver of the passport requirement and the simplification of immigration procedures-the direct outcome of regional international assemblies held in this century, and unilateral measures as indirect consequences of the same meetings. It is now generally recognized by leaders of governments as well as the civil servants located in the higher echelons of their Government's administration that persons bent on engaging in subversive activities within …

Book Review. The Criminal Process In The People's Republic Of China, 1949-1963 By Jerome A. Cohen, Robert L. Birmingham

Articles by Maurer Faculty

No abstract provided.

The Drinking Driver: An Approach To Solving A Problem Of Underestimated Severity, David A. Scholl

Villanova Law Review (1956 - )

No abstract provided.

The Oracles Of The Law, John P. Dawson

Books

Based on the lectures delivered at The University of Michigan March 12, 13, 16, 17, and 18, 1959, on The Thomas M. Cooley Lectureship, under the title "Judges: Oracles of the Law."

This study will examine the nature and extent of the contribution that case law has made to the legal systems of England, Rome, France, and Germany. The emphasis will be historical, but the object will be to show the lasting effects of historical experience on modern usage and attitudes.

Law Reform In The Emerging Nations Of Sub-Saharan Afica: Social Change And The Development Of The Modern Legal System, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Report On The Military Rule And The Greek Universities, A. A. Fatouros

Articles by Maurer Faculty

No abstract provided.

Team Work Planning Of A Comparative Law Research Project, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.

Book Review. Law In Imperial China: Exemplified By 190 Ch'ing Dynasty Cases By Derk Bodde And Clarence Morris, Robert L. Birmingham

Articles by Maurer Faculty

No abstract provided.

Book Review. Independent Africa: The Challenge To The Legal Profession By L.C.B. Gower, William Burnett Harvey

Articles by Maurer Faculty

No abstract provided.

Book Review. Law In The Soviet Society (Wayne R. Lafave, Ed.), Jurij Fedynskyj

Articles by Maurer Faculty

No abstract provided.

Security And Economy In Land Transactions: Some Suggestions From Scotland And England, Ted J. Fiflis

Publications

No abstract provided.

Review Of The Validity Of Sales Contracts: A Comparative Study, Whitmore Gray

Reviews

These 2 volumes are a slightly revised version of the substantive reports prepared by the Max Planck Institute in Hamburg (Director: Professor Konrad Zweigert) for the Rome Institute for the Unification of Private Law. They were designed to serve as a basis for the elaboration and discussion of a new uniform law on this subject matter, which would supplement the 1964 Hague conventions on a Uniform Law on the International Sale of Goods and Uniform Law on the Formation of Contract for the International Sale of Goods.

The Presumption Of Innocence In The Soviet Union, George P. Fletcher

Faculty Scholarship

The presumption of innocence is a curious item in the baggage of Western legal rhetoric. Revered today here and abroad, it has become a standard clause in international testimonials to the rights of man. Yet, at first blush, it seems conceptually anomalous and irrelevant in practice. It is hardly a presumption of fact – a distillation of common experience; statistics betray the suggestion that men indicted on criminal charges are likely to be innocent. Nor is it a legal rule masquerading as an irrebuttable presumption; it is rebuttable by proof beyond a reasonable doubt of the defendant's guilt. Further, it …

Limpens: Rapports Belges Au Viiꙴ Congreès International De Droit Comparé, Robert Kruithof

Michigan Law Review

A Review of Rapports Belges au VIIꙴ Congreès International de Droit Comparé preface by Jean Limpens

On Interpreting The Ethiopian Penal Code, Peter L. Strauss

Faculty Scholarship

The aim of this article is to set out and discuss some general principles of interpreting the Ethiopian Penal Code – that is to say, of using it. Even now, ten years after it came into effect, many people have difficulty in understanding and using the Penal Code in a straightforward way. It seems complex, and many of its fundamental conceptions are unfamiliar to Ethiopian lawyers. This article, discussing at length how the code is built, may help reduce its apparent complexity and thus facilitate its day-to-day application.

Common Problems And Uncommon Solutions In The Law Of Tort: A Comparative Study, Ferdinand F. Stone

Georgia Law Review

Let us begin with a problem which, as Alice might remind us, comes at the beginning, namely, when does the right to life begin? Is it at conception? Or at the quickening? Or at birth, or only after the child has lived for a certain period of time, thus demonstrating its intention to take living seriously? It is understandable that to primitive legal systems, the answer was clear: human life and legal personality begin only at birth, when there was present a demonstrable human being which the law could recognize and protect.

As is well known, the rest of the …