Legal History Commons^™

Conscription And The Constitution: The Original Understanding, Leon Friedman

Michigan Law Review

The general words of the Constitution-famous phrases such as "due process," "freedom of speech," "interstate commerce," and "raise and support armies"-are not self-evident concepts. As Justice Frankfurter said, "The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?" While the framers obviously could not have foreseen the discovery of electromagnetic radio waves or atomic energy, and had no "intent" concerning …

Levy: Origins Of The Fifth Amendment, O. John Rogge

Michigan Law Review

A Review of Origins of the Fifth Amendment by Leonard W. Levy

The School Desegregation Cases In Retrospect—Some Reflections On Causes And Effects, Yale Kamisar

Book Chapters

Recently, when asked to give a lecture on appellate advocacy, Justice Thurgood Marshall reminded his audience what Judge Benjamin Cardozo had once said: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by." An outstanding example, he might have added, is Brown v. Board of Education.

In a sense, the significant changes which have occurred in the Black man's status in the last two decades had their beginnings in the rise of numerically, and hence politically, important Black communities in the North. For the importance of civil rights …

The Warren Court And The Political Process, William M. Beaney

Michigan Law Review

Our complex political system creates endless opportunity to debate the proper roles and powers of each of our principal political institutions. Students of the Supreme Court who quarrel over the proper role of the Court sometimes forget that the powers of the President and the proper place of Congress have also been subject to fierce controversy throughout our history, and that the political tension between the national government and the states has provided a persistent theme from the beginning of the Republic. It must never be forgotten that the system provided by the Framers was not designed to produce efficient …

Dietze: America's Political Dilemma, Paul G. Kauper

Michigan Law Review

A Review of America's Political Dilemma by Gottfried Dietze

The Constitution, Congress, And Presidential Elections, Albert J. Rosenthal

Michigan Law Review

It has been recommended by a prestigious commission of the American Bar Association and endorsed by the ABA's House of Delegates. The Bar Association of the City of New York, which had previously recommended a different proposed amendment, has now shifted its support to direct popular vote, as has Senator Birch Bayh, Chairman of the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary. A Gallup poll indicates that 66 per cent of the nation supports this amendment, with only 19 per cent opposed.

It must be remembered, however, that a decision to amend the Constitution is, as …

Cohen: The Criminal Process In The People's Republic Of China 1949-1963: An Introduction., And Bodde & Morris: Law In Imperial China: Exemplified By 190 Ch'ing Dynasty Cases With Historical, Social, And Juridical Commentaries, Victor H. Li

Michigan Law Review

A Review of The Criminal Process in the People's Republic of China 1949-1963: An Introduction by Jerome A. Cohen, and Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases with Historical, Social, and Juridical Commentaries by Derke Bodde and Clarence Morris

The Supreme Court And The People, Everett Mckinley Dirksen

Michigan Law Review

There is only one circumstance, as I read the Constitution, which authorizes the federal government to intrude or interfere with the governmental structure of a state. That would occur under the provisions of section 4 of article IV, which, in pertinent part, state: "The United States shall guarantee to every State in this Union a Republican form of Government .... " This was the question, if indeed there was a federal question, to be determined in the earlier Baker v. Carr and the reapportionment cases. To rely on the fourteenth amendment for authority to establish by judicial decree a new …

The Alternative Amendment Process: Some Observations, Paul G. Kauper

Michigan Law Review

The alternative method of formal amendment of the Constitution raises unresolved questions of interpretation. As a contribution to the formulation of procedures for the implementation of this method Senator Ervin has introduced a bill dealing with the matter in considerable detail. In dealing with the subject I propose to discuss not only the convention procedure provided in article V, and in this connection point up some considerations respecting Senator Ervin's bill, but also some basic questions relating to the formal amendment process and the role assumed by the Supreme Court in the process of constitutional change.

Article V: The Comatose Article Of Our Living Constitution?, Robert G. Dixon Jr.

Michigan Law Review

Capacity for steady--even startling-development and relative incapacity for formal change, are twin features of American constitutionalism often noticed but seldom analyzed conjointly. Even the most stalwart supporters of the status quo do not want an unamendable Constitution, but disagreement as to how change should be effected, and the scope of it, runs deep. Indeed, this is the central problem of Marbury v. Madison. That case was the effective innovator of judicial review, our "real" system for developmental constitutionalism. Interestingly, it also was one of the quite rare instances when a seemingly simple constitutional text was at issue (scope of Supreme …

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.

Emerson: Political And Civil Rights In The United States, T. A. Smedley

Michigan Law Review

A Review of Political and Civil Rights in the United States. 3d ed. 2 vols. by Thomas I. Emerson, David Haber, and Norman Dorsen

Wainhouse: International Peace Observation-A History And Forecast, D. V. Sandifer

Michigan Law Review

A Review of International Peace Observation-a History and Forecast By David W. Wainhouse in association with Bernhard G. Bechhoefer, John C. Dreier, Benjamin Gerig and Harry R. Turkel.

Federal Rule 44.1 And The "Fact" Approach To Determining Foreign Law: Death Knell For A Die-Hard Doctrine, Arthur R. Miller

Michigan Law Review

The objective of this article is to analyze Federal Rule of Civil Procedure 44.1, which was developed as part of the reforms of the last decade and became effective on July 1, 1966 and to assess its capacity to rationalize the process of determining foreign law in the federal courts. What follows is an excursion through the past doctrine and into the probable future treatment of foreign law in the federal courts, an exploration of the interrelationship between the new Rule and other phases of federal civil procedure, and an analysis of the prospect that the Rule's effectiveness may be …

Landrum-Griffin 1965-1966: A Calculus Of Democratic Values, Theodore J. St. Antoine

Book Chapters

One of the happier ironies of recent labor history can be found in the impetus given union democracy by the Landrum- Griffin Act. At the time the Act was passed, the thinking of disinterested observers had not yet crystallized on the merits of running a union's affairs democratically. It is probably fair to say that the main push in Congress for Landrum-Griffin and, particularly, its Title, "Bill of Rights" came from a conservative coalition which was less concerned with promoting the individual rights of working people than with blunting the effectiveness of labor organizations. There is hardly anything unique in …

Evolving Judicial Attitudes Toward Local Government Land Use Control, Terrance Sandalow

Articles

The year 1967 begins the second half-century of zoning in the United States. The first comprehensive zoning ordinance was adopted by New York City in 1916. In the fifty years that have elapsed, zoning has become, notwithstanding a growing disenchantment with it on the part of planners, the most widely employed technique of land use control in the United States. At the present time only Houston, of all the major cities in the United States, lacks a zoning ordinance. And, though I have not obtained precise figures, we are all familiar with the increasingly large per centage of small municipalities, …

Valentine: The Court Of Justice Of The European Communities, Werner Feld

Michigan Law Review

A Review of The Court of Justice of the European Communities 2 vols. By D. G. Valentine

The Comity Doctrine, Hessel E. Yntema

Michigan Law Review

The doctrine of comity, as developed in the Netherlands during the last quarter of the Seventeenth Century, for the first time posed in stark simplicity the basic dilemma of conflicts law in modem times to mediate between the pretensions of territorial sovereignty and the needs of international commerce. As Ulrik Huber, the most influential exponent of the doctrine, observed: "Exempla, quibus utemur, ad juris privati species maxime quidem pertinebunt, sed judicium de illis unice juris publici rationibus constat, & exinde definiri debent.'' ["The examples which we shall use belong principally to the category of private law but their treatment …

Legal History In The High Court--Habeas Corpus, Dallin H. Oaks

Michigan Law Review

Ever since Chief Justice Marshall declared that courts could resort to the common law to determine what Congress meant by the term "habeas corpus" in a federal statute, the history of this venerable remedy has played an important role in the Supreme Court. Over the years, however, courts have moved away from using the writ of habeas corpus for its historic functions of eliciting the cause of commitment and compelling adherence to prescribed procedures in advance of trial until today it has become primarily a means by which one court of general jurisdiction exercises post-conviction review over the judgment of …

Chroust: The Rise Of The Legal Profession In America, William Wirt Blume

Michigan Law Review

A Review of The Rise of the Legal Profession in America 2 vol. by Anton-Hermann Chroust

Haines: The Revival Of Natural Law Concepts, Edwin W. Tucker

Michigan Law Review

A Review of The Revival of Natural Law Concepts by Charles Grove Haines

Holt: Magna Carta, James F. Traer

Michigan Law Review

A Review of Magna Carta by James C. Holt

A Dissent From The Miranda Dissents: Some Comments On The 'New' Fifth Amendment And The Old 'Voluntariness' Test, Yale Kamisar

Articles

F the several conferences and workshops (and many lunch conversations) on police interrogation and confessions in which I have participated this past summer3 are any indication, Miranda v. Arizona' has evoked much anger and spread much sorrow among judges, lawyers and professors. In the months and years ahead, such reaction is likely to be translated into microscopic analyses and relentless, probing criticism of the majority opinion. During this period of agonizing appraisal and reappraisal, I think it important that various assumptions and assertions in the dissenting opinions do not escape attention.

Brown: British Statutes In American Law 1776-1836, William F. Swindler

Michigan Law Review

A Review of British Statutes in American Law 1776-1836. By Elizabeth Gaspar Brown

Graves: American Intergovernmental Relations: Their Origins, Historical Development, And Current Status, Joseph E. Kallenbach

Michigan Law Review

A Review of American Intergovernmental Relations: Their Origins, Historical Development, and Current Status. By W. Brooke Graves.

Territorial Trademark Rights And The Antitrust Laws, Richard F. Dole

Michigan Legal Studies Series

Trademarks are devises used by business men to distinguish their goods from those of others. The utility of trademarks to purchasers lies in the identification of different lines of merchandise by different trademarks. On the other hand, perhaps the greatest advantage of trademarks to business derives from the connotations associated with marks by skillful advertising. Legal protection of trademark rights thus has a dual aspect: preventing others from copying marks both guards the identification function of trademarks and maintains exclusive rights in the commercial value of trademarks created by advertising. A Senate committee described the hybrid nature of trademark protection …

Soviet Tort Law: The New Principles Annotated, Whitmore Gray

Book Chapters

AT 2:20 A.M. ON MAY 1, 1962, while riding his bicycle along the Simferopol' Highway in the company of Baturin, Pronin fell and injured his shoulder. Leaving his bicycle with Pronin, Baturin went on foot to a nearby village to summon medical aid. Pronin waited for him for awhile, and then decided to go back to the village of Volosovo in a passing car. Seeing the Tula-Moscow bus coming, he ran onto the road and waved. The driver, Markelov, seeing Pronin run onto the road 50 feet ahead of the bus, swerved to the left, went into the left lane, …

Grand Jury Secrecy, Richard M. Calkins

Michigan Law Review

When a leading state such as Illinois enacts "reform" legislation, an impact on the legislatures of other jurisdictions may be anticipated. Accordingly, a need exists for an examination of this legislation in the light of the common-law background of grand jury secrecy and for a further analysis of it in the face of the growing trend toward more liberalized discovery of grand jury minutes in other jurisdictions. It is the contention of the author that such an empirical study will demonstrate that this legislation adopted by Illinois is contrary to all modern judicial thinking and is, in fact, a retrogressive …

Latin-American Land Reform: The Uses Of Confiscation, Kenneth L. Karst

Michigan Law Review

This article examines the legislative techniques for taking land, showing their confiscatory operation. For many lawyers, the analysis would then be easily completed: confiscation is wrongful and must be condemned. Rejecting the implicit absolutism of that conclusion, this article inquires into the justifications that can be pleaded on behalf of selective confiscation as an aid in solving some of Latin America's economic and social ills.

Mellinkoff: The Language Of The Law, Ronald L. Goldfarb

Michigan Law Review

A Review of The Language of the Law. By David Mellinkoff