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Full-Text Articles in Law

Part Ii The Business Judgment Rule Under Connecticut Corporation Law And Commentary On Joy V. North, Jan Ginter Deutsch Jan 1982

Part Ii The Business Judgment Rule Under Connecticut Corporation Law And Commentary On Joy V. North, Jan Ginter Deutsch

Faculty Scholarship Series

]oy v. North 48 is a shareholder's derivative action against City­ trust, Citytrust Bancorp Inc.'s wholly owned bank subsidiary. Citytrust currently owns an office building in a Norwalk redevelopment area. Its involvement with that building began in 1967, when it signed a 20-year term lease agreement for approximately 9% of the building, which was then still in the planning stage. By the time the building was completed, approximately five years later, it was only half rented and Citytrust had provided unsecured construction financing approximating a million dollars. Thereafter, Citytrust participated in a variety of re-financing arrangements in which ...


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 ...


Challenging Penal Statutes By Declaratory Action, Edwin Borchard Jan 1943

Challenging Penal Statutes By Declaratory Action, Edwin Borchard

Faculty Scholarship Series

One of the principal purposes of the declaratory action is the removal of clouds from legal relations. By dissipating peril and insecurity and thus stabilizing legal relations, it avoids the destruction of the status quo, and assures a construction or interpretation of the law before rather than after breach or violence.

The aim of this article is to point out the inadequacies in the existing methods of challenging statutes, especially police power statutes carrying a penalty for non-compliance. These methods compel either enforcement or a threat of enforcement as a condition of adjudication; they fail to distinguish different types of ...


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 ...


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 ...


Declaratory Judgments And Insurance Litigation, Edwin Borchard Jan 1939

Declaratory Judgments And Insurance Litigation, Edwin Borchard

Faculty Scholarship Series

The passage of the Federal Declaratory Judgments Act in 1934 has stimulated throughout the country the employment of the action for declaratory judgment In few branches of commercial activity has it been used more successfully than in insurance litigation. It would be hard to say whether this new device for the construction of written instruments and the clarification and adjudication of all types of legal relations has been more effectively used for the determination of disputed status, the construction of contracts, conflicting claims to property, or administrative law disputes between the Government and the citizen.


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 could· 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 ...


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 ...


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 ...


The Uniform Declaratory Judgements Act, Edwin Borchard Jan 1934

The Uniform Declaratory Judgements Act, Edwin Borchard

Faculty Scholarship Series

Minnesota is the thirtieth American state to adopt in one form or another, the procedure for declaratory judgments, and the eighteenth to adopt the Uniform Act. The bill proposing it had been pending in the Minnesota legislature for a number of years, and the Uniform Law Commissioners of Minnesota, notably Mr. Donald E. Bridgman, had devoted much energy and intelligence to eliciting the experience of other states as to the practical operation of the act for the information of the Minnesota legislature and, incidentally, of other states that had not yet adopted it. Its passage, therefore, is something of a ...


Federal Declaratory Judgments Act, Edwin Borchard Jan 1934

Federal Declaratory Judgments Act, Edwin Borchard

Faculty Scholarship Series

It is especially appropriate to publish in the Virginia Law Review the first extensive commentary on the Federal Declaratory Judgments Act. The credit for its enactment falls largely to ex-Governor, now Representative, Andrew J. Montague, of Virginia, who piloted the Act through the House of Representatives on four separate occasions. His persistence over a period of many years was finally rewarded when on June 14, 1934, President Roosevelt signed the Act (Pub. 343) giving the Federal Courts power to render such judgments.


Book Review: Boycotts And Peace, Edwin Borchard Jan 1933

Book Review: Boycotts And Peace, Edwin Borchard

Faculty Scholarship Series

Boycotts and Peace. A Report by the Committee on Economic Sanctions Nicholas Murray Butler, Chairman. Edited by Evans Clark, Director, Twentieth Evans Century Fund, Inc. New HARPER xx. This volume seems to the reviewer metaphysics, than one dealing with twentieth-century participated in the volume, it seems difficult supposed that peace, or anything like peace, is to be achieved by the methods advocated in this book. The thesis is this: war; that the pledge less, it is possible to pick the "aggressor" as the United States has excluded the use of armed sanctions, it should now associate itself with other against ...


Declaratory Judgments In Administrative Law, Edwin Borchard Jan 1933

Declaratory Judgments In Administrative Law, Edwin Borchard

Faculty Scholarship Series

The declaratory judgment, now adopted in thirty-three American states and territories, has demonstrated its value in the speedy and effective determination of numerous controversies involving status, contracts and other written instruments, and property relations. Its utility in the adjudication of conflicting claims between the citizen and the administration, however, a field of litigation to which it is admirably suited, has not been fully appreciated. It is not merely its speed, inexpensiveness, and efficiency which commend the judicial declaration of rights in administrative law, nor yet the fact that it enables disputes to be determined in their incipiency before they have ...


The Federal Tort Claims Bill, Edwin Borchard Jan 1933

The Federal Tort Claims Bill, Edwin Borchard

Faculty Scholarship Series

Forty years ago, Ernst Freund, in an article which is still fundamental to the subject, stated: A tort committed in the exercise of governmental functions creates no private cause of action against the state; where a liability is demanded by justice, it must be created by statute. A tort committed in connection with private relations should give rise to a corresponding civil liability, with such statutory exceptions as may be dictated by public policy. This is not the recognized law, but seems to be demanded on general principles. After nearly ten years of effort, the Committees on Claims of the ...


Foreign Bondholders Protective Organizations, Edwin Borchard Jan 1933

Foreign Bondholders Protective Organizations, Edwin Borchard

Faculty Scholarship Series

The unfortunate experience in recent years of the American holders of defaulted foreign bonds led to the passage by Congress on May 27, 1933, of the Corporation of Foreign Bondholders Act, as Title II of the Federal Securities Act. It was designed to furnish a medium through which American bondholders could act jointly in the adjustment of their claims against defaulting governments or other foreign entities. The holders of the defaulted bonds of a foreign state occupy a peculiar position. They cannot sue in the bondholders' state, nor, even where foreign governments permit themselves to be sued, have they any ...


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 ...


Declaratory Judgment As An Exclusive Or Alternative Remedy, Edwin Borchard Jan 1932

Declaratory Judgment As An Exclusive Or Alternative Remedy, Edwin Borchard

Faculty Scholarship Series

In a recent Michigan case the seller of a boiler, claiming a chattel mortgage therein for the unpaid purchase price, brought an action against the person who had bought the boiler at a bankruptcy sale of the property of the original buyer for a declaration that the plaintiff had the right to possession, or in the alternative, that the defendant was under a duty to pay the balance of the original purchase price. The defendant claimed to be the owner free of the mortgage. A majority of the Michigan Supreme Court, on its own motion, for the propriety of 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 ...


Declaratory Judgments, Edwin Borchard Jan 1929

Declaratory Judgments, Edwin Borchard

Faculty Scholarship Series

You may think it a little presumptuous, and I guess it is, to have a man come here from the East and undertake to point out any defects in the law of Ohio. My interest in the subject of declaratory judgments is such, however, that I have ventured to incur whatever dangers there may be in that undertaking. I was the more disposed to run those risks because what I hope to discuss today is not anything really new, but is an institution that England has had for over fifty years and which has been adopted in some twenty-three states ...


Government Liability In Tort, Edwin Borchard Jan 1925

Government Liability In Tort, Edwin Borchard

Faculty Scholarship Series

Probably no function of a municipal corporation is more “governmental" in character than the care of its highways, streets and bridges. In theory, therefore, the city should be immune from responsibility for negligence in such matters; and such was the common law. Precisely the opposite result, however, constitutes the weight of judicial authority in this country, even in the absence of statue, on the commonly advanced ground that the duty of taking care of the public highways is ministerial in character. The conclusion deserves approval, though not necessarily the ground on which it is based. More difficult to support is ...


Strength And Weakness Of The New International Court, Edwin Borchard Jan 1922

Strength And Weakness Of The New International Court, Edwin Borchard

Faculty Scholarship Series

For an adequate understanding of the origin, jurisdiction and functions of the newly established court of international justice at the Hague, it will be necessary to revert to the two Hague Conferences of 1899 and 1907 and to examine the organization of the Permanent Court of Arbitration at the Hague created and developed at: those Conferences. The characteristic feature of the Court of Arbitration as distinguished from the new Permanent Court of Justice lies in the fact that the personnel of the former consists of an eligible list or panel, of which there are now some one hundred and twenty ...


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.


Earning Of Freight On Uncompleted Voyages, Edwin Borchard Jan 1921

Earning Of Freight On Uncompleted Voyages, Edwin Borchard

Faculty Scholarship Series

An inevitable consequence of the Great War was the interruption or breaking up of commercial voyages it necessarily brought about. These acts of interference have occasioned much litigation on the question of the amount of freight earned by vessels thus rendered unable to complete their voyages, and have given renewed importance to an interesting subject of admiralty and contract law. The imagination has not conjured more varied and romantic circumstances than the actual facts of maritime adventure, as disclosed in the prosaic pages of the law reports. It may, therefore, be of interest to discover how the courts have dealt ...


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 ...


Some Lessons From The Civil Law, Edwin Borchard Jan 1916

Some Lessons From The Civil Law, Edwin Borchard

Faculty Scholarship Series

The purpose of this brief article is not so much to set forth any specific institutions disclosed by a study of the civil law, as to point out some of those defects of our own system which are accentuated by comparison with the civil law, defects due to the methods rather than the substance of the common law. There is no desire to urge such a radical and perhaps impossible step as the substitution of civil law methods for our own; but in the consideration of plans for the improvement of our law, it may be profitable to observe that ...


Contractual Claims In International Law, Edwin M. Borchard Jan 1913

Contractual Claims In International Law, Edwin M. Borchard

Faculty Scholarship Series

Diplomatic protection is often invoked by citizens of one country in cases arising out of contracts entered into with citizens of another, or with a foreign government. With the constant growth in international intercourse and the exploitation of backward countries by foreign capital, this class of cases has assumed large proportions and has given rise to many perplexing and delicate diplomatic situations. The foreign offices of some of the more important Governments have differentiated these claims from tortious claims arising out of direct injuries to the person or property of their citizens committed by an authority of the state, either ...


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 ...