Constitutional Law Commons^™

Judicial Review: A Tri-Dimensional Concept Of Administrative-Constitutional Law, Frank R. Strong

West Virginia Law Review

In an earlier issue of the present volume of the Review, an effort was made to dispel the seeming absurdity that "Separation of Powers, the cardinal principle upon which the federal and all state governments are founded, a great American contribution to the science of government, violates the due process clause!" The quotation is from an able and exhaustive article on Judicial Review of Administrative Action in West Virginia, written by Kenneth Gulp Davis at the beginning of a teaching and writing career which has brought him preminence in the field of Administrative Law. The article appeared in Volume 44 …

Judicial Review: A Tri-Dimensional Concept Of Administrative-Constitutional Law, Frank R. Strong

West Virginia Law Review

In the pages of Volume 44 of the West Virginia Law Quarterly, Professor Kenneth Culp Davis, then a young law teacher in this College of Law, found in certain decisions of the supreme court of this State and of the Supreme Court of the United States the paradox that "Separation of powers, the cardinal principle upon which the federal and all the state governments are founded, a great American contribution to the science of government, violates the due process clause!" To Professor Davis this result seemed exceedingly absurd, and in this adverse judgment he has had with him the great …

Constitutional And Statutory Bases Of Governors' Emergency Powers, F. David Trickey

Michigan Law Review

The primary source of executive emergency power is the state constitution, although statutes often codify the constitutional executive emergency authority and occasionally delegate additional legislative police powers to the governor. Most governors are authorized to respond to public emergencies with a variety of extraordinary emergency measures. This study of state constitutional and statutory emergency power provisions has been undertaken in an attempt to evaluate the sources and scope of governors' emergency powers, as well as the limitations upon those powers. Its primary focus will be upon the extreme breadth of executive emergency authority and, in particular, upon the power to …

Some Comments On The Reapportionment Cases, Paul G. Kauper

Michigan Law Review

Any appraisal of the Supreme Court's decisions in the legislative reapportionment cases must necessarily distinguish between the basic policy ingredients and social consequences of the decisions on the one hand, and the question whether the results were reached by a proper exercise of judicial power on the other. Respecting the first of these considerations, I have no difficulty identifying the social advantages accruing from these decisions. Because of the stress on the population principle, the decisions will afford a greater voice to urban interests, will make the legislative process more responsive to current needs of particular concern to urban dwellers, …

Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.

Michigan Law Review

Fair representation is the ultimate goal. At the time of the Reapportionment Decisions, much change was overdue in some states, and at least some change was overdue in most states. We are a democratic people and our institutions presuppose according population a dominant role in formulas of representation. However, by its exclusive focus on bare numbers, the Court may have transformed one of the most intricate, fascinating, and elusive problems of democracy into a simple exercise of applying elementary arithmetic to census data. In so doing, the Court may have disabled itself from effectively considering the more subtle issues …

Review Of The Supreme Court On Trial, By C. S. Hyneman., Jerold H. Israel

Reviews

Professor Hyneman's book represents still another entry in the current debate over the proper role of judicial review in a democratic society.' Although he approaches this subject via an analysis of several recent attacks upon the United States Supreme Court, Professor Hyneman essentially deals with the same topics-the legitimacy of judicial review, the proper standards applicable to constitutional adjudication, and the alleged departure of the school segregation cases2 from those standards-that have served as the subject of several books and at least a score of articles published within the past five years.3 Indeed the writing in this area has grown …

Ripeness And Reviewable Orders In Administrative Law, Louis L. Jaffe

Michigan Law Review

The requirement of "ripeness" as a condition for judicial review is not so much a definable doctrine as a compendious portmanteau, a group of related doctrines arising in diverse but analogically similar situations. In its most general sense ripeness is a requirement not of the administrative action to be reviewed but of the judicial controversy between the plaintiff and the agency. Consider the case where an agency has gone no further than to threaten a certain action which the plaintiff in an equity or declaratory proceeding claims would be contrary to law: here, in all strictness, the controversy concerns …

Gideon V. Wainwright: The Art Of Overruling, Jerold H. Israel

Articles

During the 1962 Term, the Supreme Court, on a single Monday, announced six decisions concerned with constitutional limitations upon state criminal procedure. The most publicized of these, though probably not the most important in terms of legal theory or practical effect, was Gideon v. Wainwright. In an era of constantly expanding federal restrictions on state criminal processes, the holding of Gideon-that an indigent defendant in a state criminal prosecution has an unqualified right to the appointment of counsel-was hardly startling. And while Gideon will obviously have an important effect in the handful of states that still fail to appoint counsel …

Compulsory Disclosure And The First Amendment - The Scope Of Judicial Review, Robert B. Kent

Cornell Law Faculty Publications

Involvement of the Supreme Court of the United States with highly charged public issues understandably occasions fresh debate concerning the proper role of the Court in determining questions of ultimate governmental power, in short, debate over the doctrine of judicial review.

As it is sometimes difficult for the judge to distinguish between what is unconstitutional and what is merely unwise, so it is difficult for the critic to disassociate his reaction to the results reached in a given case from his evaluation of the competence of the particular judicial performance. For some the failure to draw such a line robs …

The Supreme Court And The Rule Of Law, Paul G. Kauper

Michigan Law Review

I should like to approach this afternoon's subject along two lines. On the one hand, I propose to develop the subject in terms of the Supreme Court's contribution to our understanding of the Rule of Law, and, on the other hand, I propose to look at the Supreme Court as a governmental institution subject to the Rule of Law. In short, I propose to discuss the Supreme Court both as an instrumentality for the development of the American concept of the Rule of Law and as an institution governed by the Rule of Law. Needless to say, these two approaches …

Reviewing Judicial Review: A Note In Constitutional History, William F. Swindler

Faculty Publications

No abstract provided.

The Supreme Court And State Power To Deal With Subversion And Loyalty, Roger C. Cramton

Cornell Law Faculty Publications

In this Article, Professor Cramton discusses the effect of recent United States Supreme Court decisions on state control of Subversive activities. He finds that while the decisions to some extent restrict state activity in this area, and though the Court in its decisions gives the impression of vacillation and confusion, some definite and workable principles are emerging which contribute to a resolution of the inherent conflict of federal-state relations which these issues pose. He concludes that as the states grow more sophisticated in their treatment of these issues, so the policy of judicial self-restraint will become more influential in restricting …

Constitutional Law -- 1958 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

State constitutional law decisions, lacking the universality of application of many other fields of the law, are vital and of significance frequently only to the local bar and local public officials. There is another difference between state constitutional law decisions, and federal constitutional law decisions: state courts are inclined to deal with state constitutional issues with an emphasis on the pragmatic problem of deciding the case and getting it out of the way,rather than with an emphasis on completing the blue print-of seeking to establish the general principle which reflects the conflicting policies struggling for recognition. In most United States …

Justice Jackson And The Judicial Function, Paul A. Weidner

Michigan Law Review

Much of the pattern of division in the present Supreme Court is traceable to basic differences of opinion regarding the proper role of a judge in the process of constitutional adjudication. Some students of the Court, yielding to the current fashion of reducing even intricate problems to capsule terms, have tried to explain the controversy by classifying the justices as either "liberals" or "conservatives." A second school poses the disagreement largely in terms of judicial "activism" as opposed to judicial "restraint." It is this view that has the greater relevance for the present discussion. C.H. Pritchett, one of the leading …

The Role Of The Privy Council In Judicial Review Of The Canadian Constitution--A Post-Script, Edward Mcwhinney

Vanderbilt Law Review

In its Preamble, the Constitution of Canada speaks of the desire of the Provinces of Canada to be "federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom." Historically, then, the Constitution of Canada like the Constitution of the United States, stems from a compact between a number of different territorial units: the Provinces of Lower Canada (Quebec), Upper Canada (Ontario), and the two eastern maritime Provinces of Nova Scotia and New Brtnswick, joined together in 1867 to form the new …

The Original And Exclusive Jurisdiction Of The United States Supreme Court, Wencelas J. Wagner

Articles by Maurer Faculty

No abstract provided.

Avoidance Of Constitutional Issues In The United States Supreme Court: Liberties Of The First Amendment, Burton C. Bernard

Michigan Law Review

The frequently criticized reluctance of the Supreme Court to consider complaints of unconstitutional governmental action is manifested in the utilization by the Court of various rules of avoidance of constitutional issues. Uncompromising defense of this self-restraint would not be easy to reconcile with the Court's pronounced sensitivity, in modem times, to the liberties of the First Amendment. This article will examine the considerations underlying the traditional restraint, and will suggest that the Court should modify several of its rules of avoidance, at least when liberties of the First Amendment are threatened.

Administrative Agencies And The Court, Frank E. Cooper

Michigan Legal Studies Series

The limits which courts place on the powers of administrative tribunals have particular significance to practicing attorneys and law students. It is largely to the extent that such limits are imposed, that our government remains a government of laws and not a government of men.

The following pages have been written to describe the standards which the courts impose upon administrative agencies, thereby controlling and limiting their powers. More particularly, the writer has sought: (1) to bring together the leading cases in which the courts have laid down the principles that govern frequently litigated questions in contests between the agencies …

Corwin: Liberty Against Government, Michigan Law Review

Michigan Law Review

A Review of LIBERTY AGAINST GOVERNMENT. By Edward S, Corwin .

Recent Decisions, Michigan Law Review

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

The Amending Of The Federal Constitution, Lester Bernhardt Orfield

Michigan Legal Studies Series

MOST treatises on constitutional law dispose of the federal amending clause in summary fashion. The commentators have thought fit to stress chiefly the division of authority between the federal government and the states. They have attached a high degree of significance to the dogma of separation of powers. A great deal of attention has been devoted to the doctrines of judicial review, the supremacy of the Federal Constitution, and the Bill of Rights. The taxation and the commerce clauses have come in for their full share of consideration. In recent years extensive studies have been made of the due process …

Constitutional Implications Of The Opp Cotton Mills Case With Respect To Procedure And Judicial Review In Administrative Rule-Making, Ralph F. Fuchs

Articles by Maurer Faculty

No abstract provided.

Constitutional Interpretation And Judicial Self-Restraint, Vincent M. Barnett Jr.

Michigan Law Review

The newly reconstituted Supreme Court of the United States has become the center of an earnest controversy with respect to the true role of the Court in constitutional interpretation. The general controversy is, of course, far from new. What makes it of more than ordinary significance is that the Court itself is revealing a tendency substantially to alter the extent, if not the nature, of judicial review. This tendency has not yet become clearly dominant, but it is apparent enough to shake the implicit faith in the Court of many of those to whom, before 1937, any criticism of the …

Constitutional Law--Judicial Review Of Legislative Determination As To Fact, B. H. Henard

Kentucky Law Journal

No abstract provided.

Constitutional Law - Separation Of Powers - Validity Of Statute Requiring Reference Of Disputes To Commissioner Of Labor, Edward D. Ranson

Michigan Law Review

The plaintiff was conducting a private employment agency under a license issued by the commissioner of labor. The defendant, a movie actress, secured an engagement through the plaintiff's influence, pursuant to a contract. A dispute arose as to the amount of compensation due the plaintiff under the terms of the contract. A statute required reference of such disputes to the commissioner of labor, who was to hear and determine the same. Within ten days a dissatisfied party could appeal to the superior court and have a hearing de novo. The plaintiff, failing to comply with the statute, commenced the action …

Constitutional Law - New Deal Legislation - Gold Hoarding Statute

Michigan Law Review

Two cases involving acts of Congress passed in March 1933 to prevent the hoarding of gold' were denied a review by the United States Supreme Court on October 8. Both of these cases involved the same facts. Plaintiff had delivered certain gold bars to a bank for safe-keeping. Later the bank notified him that, pursuant to an executive order by the President of the United States, it would have to surrender the gold. Immediately the plaintiff demanded the return of the bullion, which demand was refused, and he filed bills for specific performance of the bailment contract against the bank …

Constitutional Law - Requirements Of Due Process In State Procedure

Michigan Law Review

In American Surety Company v. Baldwin the Surety Company complained that the procedure in Idaho deprived it of a hearing upon its liability on a supersedeas bond. After judgment was given on the bond the Surety Company moved to vacate the order and the motion was granted. Baldwin took an appeal from this order to the Supreme Court of Idaho which reversed the trial court. The sole question raised by the motion was whether the trial court had jurisdiction to give judgment. Under the Idaho practice an appeal from the judgment of the court was the proper method to review …

The Doctrine Of Judicial Review, F. R. Aumann

Kentucky Law Journal

No abstract provided.

Constitutional Law-Interstate Commerce-The Transportation Act Of 1920

Michigan Law Review

Contemporaneous comments on Supreme Court decisions involving the "due process" clause too often resolve themselves into mere "debates" as to the wisdom of the particular legislation in question, either from the standpoint of the ultimate object to be accomplished or the methods adopted for its accomplishment. Strongest adherents of our unique system of judicial review must admit that, after all, the duty of the Supreme Court consists primarily in determining whether or not the legislation before it is valid, not whether it is, or is not, a politic enactment.

The Supreme Court's Adjudication Of Constitutional Issues In 1921-1922, V, Thomas Reed Powell

Michigan Law Review

By the terms of Article III of the Constitution the federal judicial power extends to cases and controversies of various kinds, and it is established that no dispute, even though otherwise cognizable, can be brought before the federal courts unless they are technically a case or a controversy. In illustration of this, Fairchild v. Hughes held that a private citizen with no other interest at stake than his personal opposition to woman suffrage can not bring a bill to restrain the Secretary of State from issuing a proclamation declaring the ratification of the Nineteenth Amendment.