Courts Commons^™

Judicial Tax Courts For The States: A Modern Imperative, William D. Dexter

University of Michigan Journal of Law Reform

There has been growing discontent among tax gatherers and taxpayers alike over the disposition of state and local tax disputes. Concern centers on the nature of appellate review and its availability irrespective of the tax involved or the amount or subject matter in controversy. In many jurisdictions the system of review in tax cases presents an unwieldy array of alternative administrative and judicial avenues of review which are confusing to the prospective tax appellant and destructive of economy and uniformity in the system. This article will assess the need for a specialized judicial court to review the initial disposition of …

Controlling The Police: The Judge's Role In Making And Reviewing Law Enforcement Decisions, Wayne R. Lafave, Frank J. Remington

Michigan Law Review

We have chosen to focus here upon judicial involvement (1) in determining whether arrest and search warrants should issue and (2) in reviewing such decisions after they have been executed (and, perhaps, made) by police officials. A comparison of some recent findings respecting the actual practice at the trial level with the "ideal" as set forth in appellate opinions may allow some conclusions to be drawn both as to the present effectiveness of appellate rulings on these subjects and as to the ultimate feasibility of further implementation of those rulings. Finally, since the exclusionary rule is, theoretically at least, one …

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 …

Llewellyn: The Common Law Tradition- Deciding Appeals, Luke K. Cooperrider

Michigan Law Review

A Review of The Common Law Tradition- Deciding Appeals. By Karl N. Llewellyn.

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 …

Administrative Law - Judicial Control - Appellate Review Of Federal Trade Commission Proceedings, David A. Nelson S. Ed.

Michigan Law Review

During its forty-five year life the Federal Trade Commission has gone through some difficult periods to emerge today as one of the fundamental instrumentalities of government in the regulation of business. Its vast powers and influence, well known to lawyers, will not be explored here. Rather, the purpose of this comment is to appraise the extent of control which the judiciary now exercises over the commission in its adjudicative functions, so as to offer some indication to the practitioner of the probabilities regarding the outcome of judicial review on an appeal beyond the full commission. The approach to be used …

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 …

Administrative Law--Scope Of Judicial Review--Substantial Evidence Rule, J. O. F.

West Virginia Law Review

No abstract provided.

Mandamus To Review Administrative Action In West Virginia, Ray Jay Davis

West Virginia Law Review

Limitation by law of governmental action and legal responsibility of officials are ramparts in defense of constitutional democracy. The American people expect all branches of government-executive and legislative, as well as judicial-to protect us against arbitrary official action. Lawyers, however, are primarily interested in judicial restraints and limitations upon officialdom. This article is an examination of the West Virginia law concerning one of the methods used by courts to control administrative officers-the writ of mandamus.

Judicial Control Of Administrative Agencies In Indiana: Ii, Ralph F. Fuchs

Indiana Law Journal

No abstract provided.

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

Articles by Maurer Faculty

No abstract provided.

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 …

Judicial Control Of Administrative Action By Means Of The Extraordinary Remedies In Minnesota, John A. Bauman, Stefan A. Riesenfeld, Richard C. Maxwell

Articles by Maurer Faculty

No abstract provided.

Jury Selection Analyzed: Proposed Revision Of Federal System, William Wirt Blume

Michigan Law Review

It is proposed, and bills to carry out the proposal are now pending in Congress, that the federal system of jury selection be substantially revised, chiefly by establishing "uniform qualifications" for jurors who serve in the federal courts. An examination of these bills reveals that the proposed revision not only contemplates the elimination of conformity with state statutes insofar as they prescribe qualifications for, and exemptions from, jury service, but also contemplates a startling increase in the discretionary powers of the federal judges with respect to the whole process of jury selection. As an aid to a consideration of the …

Civil Justice In Germany, Burke Shartel, Hans Julius Wolff

Michigan Law Review

Our aim in preparing this paper is to develop for American lawyers a picture of the functioning of German civil justice. This aim, as well as the paper itself, is an outgrowth of a series of lectures on the German legal system delivered by the authors as background in the law of military occupation for the Judge Advocate General's School of the United States Army in Ann Arbor. That part of these lectures which concerns the operation of German civil justice seems to us of sufficient intrinsic interest to warrant publication.

Italian Administrative Courts Under Fascism, Paul B. Rava

Michigan Law Review

Observers not wholly familiar with the administration of the present government of Italy are generally surprised by the fact that the Council of State, the supreme administrative court, is still an operating body after more than eighteen years of blackshirt revolution and domination. It seems strange that a dictator should have preserved this agency, which was established in order to bring justice into public administration, and which rapidly became the principal guardian of individual rights against administrative arbitrariness. One asks how the Council of State can, in a totalitarian state, continue to exercise its functions of administrative court and of …

The Doctrine Of Judicial Review And Its Relation To A Declared Purpose Or Policy Of A Statute, Theodore S. Cox

Washington and Lee Law Review

No abstract provided.

Circuit Courts And The Nisi Prius System: The Making Of An Appellate Court, William Wirt Blume

Michigan Law Review

Judicial systems organized under the influence of the English tradition have exhibited a tendency to pass through four stages of development. (1) In the first stage the highest court (not taking into consideration legislative bodies) has final appellate jurisdiction and a superior original jurisdiction, civil and criminal. The court is composed of three or more judges who sit in bank for the trial of cases. The judges may sit at a central place or go on circuit throughout the territory. (2) In the second stage the highest court has both original and appellate jurisdiction but does not undertake to try …

The Development And Evaluation Of Judicial Review [Part 3], C. Perry Patterson

Washington Law Review

This Is the concluding portion of Mr. Patterson's continued article. The first portion, in the Journal for January, 1938, covered the background of the theory of judicial review in the Federal Constitution. In the April issue he indicated the manner of incorporating the principle in the Constitution, and in the current installment he shows the wide use of judicial review and discusses its significance.

The Development And Evaluation Of Judicial Review [Part 2], C. Perry Patterson

Washington Law Review

In the previous portion of this article, Mr. Patterson attributed the American Revolution to the tyrannies resulting from the failure of the British government to provide for judicial review of acts of the central government as well as of the acts of the local governments. After noting a resulting desire among the former colonists to substitute constitutional supremacy for legislative supremacy, Mr. Patterson observed the use of judicial review in the courts of several of the states prior to the Convention of 1787, pointed out the embodiment of its principles in the enactments of the Congress of the Confederation in …

The Development And Evaluation Of Judicial Review [Part 1], C. Perry Patterson

Washington Law Review

The doctrine of judicial review is as much a principle of the Constitution as the principle of federalism or the doctrine of separation of powers and checks and balances. It is a far more definite power than the powers of Congress or those of the President. It should be remembered that the Constitution nowhere mentions federalism, separation of powers, checks and balances, national supremacy or concurrent powers, taxation for only a public purpose, business affected with a public interest is subject to regulation, contracts involving governmental powers are null and void, neither the national government nor the states can tax …

The Proposed United States Administrative Court, Robert M. Cooper

Michigan Law Review

The last half century has witnessed a constant, almost relentless, increase of governmental responsibilities and services in both federal and state spheres of control. Due to the changing needs of our economic and social order, the desire for speedy, efficient and inexpensive settlement of controversies and the imperative need of specialized administrators, the task of performing these new functions has not infrequently been delegated to administrative tribunals or commissions. Neither the legislature nor the judiciary was capable of administering the myriad details or countless controversies which inevitably accompanied these new functions of government. As a consequence an administrative branch of …

Federal Practice -Appeal And Error - Review Of Denial Of Motion For New Trial

Michigan Law Review

The federal appellate courts have, in a great many decisions, refused to review the denial of a motion for a new trial made in a lower federal court. The very recent case of Fairmount Glass Works v. Cub Fork Coal Co. once again presents the problem, and Justice Brandeis, writing the majority opinion, follows the prior holdings. In this very excellent opinion the learned Justice presents the reasons for the result generally reached, and enumerates some of the exceptions in a manner which should tend to clarify much of the doubt which has existed in this field of appellate jurisdiction.

Civil Pleading In Scotland, Robert Wyness Millar

Michigan Law Review

Said Lord Chancellor Loreburn, in his answers to the questions addressed to him by Mr. Justice Lurton, preparatory to the drafting of the Federal Equity Rules of 1912: "It may be worth while for Mr. Justice Lurton and his coadjutors to consider the Scottish method of pleading which, in my opinion, is the best." This can only mean that the Lord Chancellor regarded the method in question as superior to that obtaining under the English Rules - certainly a high testimonial coming from such a quarter. Whether the opinion is justified or not is a question which may be left …

Administrative Finality, A. Martin Tollefson

Michigan Law Review

The purpose of this article is two-fold. In the first place it is intended to set forth certain determining factors (a) as to whether or not administrative decisions are subject to review in cases where their finality is challenged before the courts and (b) if subject to review, to what extent. The second purpose is to call attention to the need for improvement in this country along the lines of executive or administrative justice from the standpoint of better agencies and better- facilities for disposing of litigated questions within the administrative tribunals. It should be said at the outset, however, …

Book Review. Dickinson, John, Administrative Justice And The Supremacy Of Law In The United States, Ralph F. Fuchs

Articles by Maurer Faculty

No abstract provided.

Coke-Parliamentary Sovereignty Or The Supremacy Of The Law?, R. A. Mackay

Michigan Law Review

Few legal authorities have received such conflicting interpretations as Sir Edward Coke. American jurists have turned to him as the legal father of judicial review, English jurists have found in him the authority for Parliamentary Supremacy, The cause of these conflicting interpretations is partly Coke's obscure style. Coke was an encyclopedist rather than a philosopher of the law: his ideas must be dug out and fused together from an heterogeneous mass of apparently unrelated statements. Even his Reports are legal and literary puzzles, a mixture of advocates' pleas, judicial decisions, and probably Sir Edward Coke's personal opinions as well. Hence …

Legislation In Vague Or General Terms, Ralph W. Aigler

Articles

FOR some reason, probably in part the increasing complexity of our life and relationships, but more largely, perhaps, the growing tendency to regulate everybody and everything by positive law, the courts have been called upon with increasing frequency to pass upon the effectiveness of statutes and ordinances phrased in indefinite terms. In a very interesting and valuable paper, Professor Freund has pointed out the weakness and strength, on the one hand, of legislation in general terms, and on the other hand, legislation in which the rule of conduct is attempted to be laid down with precision. His interest apparently lay …

Social And Economic Interpretation Of The Fourteenth Amendment, Robert Eugene Cushman

Michigan Law Review

For those who love precision and definiteness the question of the application of the Fourteenth Amendment to social and economic problems remains an irritating enigma. The judicial construction of due process of law and the equal protection of the law has from the first discouraged systematic analysis and defied synthesis. More than one writer has emerged from the study of the problem with a neat and compact set of fundamental principles, only to have the Supreme Court discourteously ignore them in its next case. But paradoxical as it may seem, those who long for a wise and forward-looking solution of …

Growth And Development Of The Police Power Of The State, Collins Denny Jr

Michigan Law Review

The police power of the state is one of the most difficult phases of our law to understand, and it is even more difficult to define it and to place it within any bounds. In speaking of this power the court has recently said: "It extends not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity. * * * It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government."' The term is …