Rule of Law Commons^™

Legislation On The American Frontier: Adoption Of Laws By Governor And Judges-Northwest Territory 1788-1798: Indiana Territory 1800-1804; Michigan Territory 1805-1823, William Wirt Blume

Michigan Law Review

The Northwest Ordinance of 1787 made provisions for legislation by the territorial government in two stages: (1) adoption of laws by the governor and judges from the laws of the original states, and (2) enactment of statutes by a legislature made up of the governor, a council, and elected representatives. The first method was to be followed until the population should reach 5,000 and the second method thereafter. The present study is limited to the first stage.

Routine Bifurcation Of Jury Negligence Trials: An Example Of The Questionable Use Of Rule Makings Power, Jack B. Weinstein

Vanderbilt Law Review

The Federal District Court for the Northern District of Illinois recently adopted a rule providing for submission of the issues of negligence to a jury before evidence on the issue of damages is introduced (hereinafter sometimes referred to as the bifurcation rule or split trial rule). While reflecting a commendable spirit of judicial responsibility for reducing court congestion, the issue of its propriety raises some of the most subtle and difficult problems of the proper relation of courts to legislature in our system of independent branches of government; of the characterization of matters as substantive and procedural for various purposes; …

International Commission Of Jurists: The Rule Of Law In A Free Society: A Report On The International Congress Of Jurists, William B. Harvey

Michigan Law Review

A Review of The Rule of Law in a Free Society: a Report on the International Congress of Jurists. Geneva, Switzerland: International Commission of Jurists, 1960.

The Rule Of Law In Historical Perspective, W. Burnett Harvey

Michigan Law Review

Events of the past two decades have made imperative a fundamental re-examination of the basis of government and the legal order. The gross inhumanities of the German and Japanese regimes during the Second World War are fresh in our memories. In many areas of the world today, the force of law is being used for the systematic suppression of claims to freedom and human dignity. The revolutionary ferment of the post-war years has brought into existence new governments with the task of determining their fundamental orientation and the direction of their legal orders.

The Challenge Of The Rule Of Law, W. Burnett Harvey

Michigan Law Review

The lecture last week considered the Rule of Law concept in historical perspective. Aside from its possible, highly restricted connotation of public order maintained by the force of politically organized society, three basic meanings or emphases were identified in discussions of the Rule of Law: first, certain constitutional principles, particularly those ascribed by Dicey to 19th-century Britain; second, certain valuable procedural safeguards of a fair trial; and third, those asserted universal and perhaps immutable principles, derived from God or Nature by the rational faculties of man, available to guide and, in some views, to invalidate positive legal action. Without denying …

Post-War Thinking About The Rule Of Law, Charles W. Joiner

Michigan Law Review

The seven papers that follow are the words and thoughts of the Michigan Law School faculty members who delivered the lectures in this series. Each paper was written for oral presentation and was spoken to an audience. The reaction of those attending the lectures was so favorable that arrangements were made for their publication. In the audience at the time these papers were given were lawyers from many parts of the United States and many foreign countries.

The Rule Of Law And The Judicial Process, Luke K. Cooperrider

Michigan Law Review

An anecdote which I believe I recall from one of Professor Brogan's ·writings concerns a conversation between the archbishop and the chief justice about the relative importance of their respective powers. After the conversation had continued for some time the archbishop sought to administer the coup de grâce. "I have the advantage of you, your lordship, because you see, in the long run, the most you can say to a man is, 'You shall be hanged!' whereas it is within the functions of my office to say, 'You shall be damned!' " To this, after a moment of thought, …

The Executive Department Of Government And The Rule Of Law, Frank E. Cooper

Michigan Law Review

For a long time, people have been talking about the executive department of government and the Rule of Law. Indeed, the suggestion of Aristotle that government should be by law, and not by men, represented a protest directed to the earlier Grecian systems of despotically controlled administrative law. It is my privilege this afternoon to carry forward the discussion of a problem that has been talked about for some two thousand years: how to apply the Rule of Law to the executive agencies of the government. They are commonly called "independent agencies" within the executive branch. I suggest that the …

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 …

The International Rule Of Law, William W. Bishop

Michigan Law Review

In contrast with the previous lectures in this series on the Rule of Law, we are today not concerned with how the Rule of Law operates in a highly organized modem state like our own United States; but are turning instead to the world-wide community (or perhaps more properly international arena or international sphere of action, since the very word "community" may over-emphasize the degree of common sentiment!), in which the present role of the law is far less than within the state. Our first question is whether there is in fact any such thing as an international Rule of …

The Legislative Process And The Rule Of Law: Attempts To Legislate Taste In Moral And Political Beliefs, Samuel D. Estep

Michigan Law Review

In a nutshell, the topic of this paper is "Comstockery and the Bowdlerizing of Ideas." The thesis here asserted is that the Rule of Law is violated when legislatures succumb to modern attempts by the often pathologically-motivated zealot legally to freeze current tastes in moral and political beliefs. The relationship between taste statutes and the seemingly esoteric topic, "The Legislative Process and the Rule of Law," is based on the premise that the maximum possible degree of intellectual freedom for each individual is an essential ingredient in the legal system of a civilized society.

The Challenge Of The Rule Of Law, William Burnett Harvey

Articles by Maurer Faculty

No abstract provided.

Book Review. The Rule Of Law In A Free Society: A Report On The International Congress Of Jurists, William Burnett Harvey

Articles by Maurer Faculty

No abstract provided.

Foreword, Joseph O'Meara

Journal Articles

The institutions which we finally succeed in achieving to preserve mankind from self-extinction—whatever they may be—will be the product of an evolutionary development, no blueprint of which is possible in advance. Hence the greatest contribution we can make, in my view, is always to press on with the next steps as they become discernible.

What are now the next steps? The purpose of our Symposium is to explore and, if possible, to illuminate that problem.

The Rule Of Law In Historical Perspective, William Burnett Harvey

Articles by Maurer Faculty

No abstract provided.

Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume

Michigan Law Review

The act of Congress of January 11, 1805, which created Michigan Territory out of Indiana Territory, provided that the new territory should have a government "in all respects similar" to that provided for the Northwest Territory by the Ordinance of 1787. The Ordinance had provided for the appointment of a court to consist of three judges who should have "a common law jurisdiction. "

The Constitutions Of West Germany And The United States: A Comparative Study, Paul G. Kauper

Michigan Law Review

The purpose of this article is to present a descriptive overall picture of the fundamental features of the system established by the Basic Law and at the same time point up significant comparisons and contrasts by reference to the Constitution. Eleven years have now elapsed since the Basic Law went into effect, and significant decisions of the Federal Constitutional Court (Bundesverfassungsgericht ) noted at the appropriate points, serve to illuminate the working of the system established by it.

Free Will In The Frontiers Of Federalism, John R. Brown

Michigan Law Review

In an assembly dedicated, as this one is, to frontiers in law and legal education in celebration of the centennial of this great Law School and forecasting what is to be expected in the next one hundred years, the idea of states' rights-of the federal-state relationship-has seemed almost ironic.

Leach & Sugg, Jr.: The Administration Of Interstate Compacts, Joseph E. Kallenbach

Michigan Law Review

A Review of The Administration of Interstate Compacts. By Richard H. Leach and Redding S. Sugg, Jr.

Probate And Administration On The American Frontier: A Study Of The Probate Records Of Wayne County- Northwest Territory 1796-1803; Indiana Territory 1803-1805; Michigan Territory 1805-1816, William Wirt Blume

Michigan Law Review

As late as 1815 there was only one county in Michigan Territory- Wayne County- made up of parts of the territory to which the Indian titles had been extinguished. As other counties were organized beginning in 1817, Wayne County was reduced to its present size. A law adopted July 27, 1818, provided that a probate court should be held in each county. By a proclamation dated October 2, 1818, Acting Governor Woodbridge declared it was "no longer expedient to continue the present subdivisions of this territory into districts" for probate purposes; instead, each county should be "a separate District and …

Freeman: Responsibility Of States For Unlawful Acts Of Their Armed Forces, Brunson Macchesney

Michigan Law Review

A Review of Responsibility of States for Unlawful Acts of Their Armed Forces. By Alwyn V. Freeman.

Clark & Sohn: World Peace Through World Law, Harding Bancroft

Michigan Law Review

A Review of World Peace Through World Law. By Grenville Clark and Louis B. Sohn.

"Congress Shall Make No Law…":Ii, O. John Rogge

Michigan Law Review

The framers of the federal bill of rights by the First and Tenth Amendments sought to deny Congress power over utterances unless they were connected with criminal conduct other than advocacy. Any power over such utterances was to reside in the states. However, the Supreme Court departed from the framers' intent.

One of the factors in this development was the emergence of an undefined federal police power. This occurred largely under the commerce and postal clauses. It began over a century ago. As early as 1838 Congress passed a law requiring the installation of safety devices upon steam vessels. Beginning …

Guided Tour In A Civil Law Library: Sources And Basic Legal Materials In French Civil And Commercial Law, G. M. Razi

Michigan Law Review

Lawyers everywhere rely upon their books with eagerness and confidence. The larger their libraries, the better equipped they feel to answer the questions of their clients. The composition of an average library differs somewhat in France and in the United States. In this country the law reports, in their familiar, substantial and elegant bindings, are displayed on the prominent shelves, while in Europe, the law reports-often merely paper bound-are relegated to some corner. The front place is reserved for the leather bindings and the gilt letters of the treatises bearing the names of outstanding authors in the various fields of …

"Congress Shall Make No Law..."*, O. John Rogge

Michigan Law Review

It is the position of the writer that, at least so far as Congress is concerned, speech is as free as thought, and that unless and until speech becomes a part of a course of conduct which Congress can restrain or regulate no federal legislative power over it exists. State power, despite the Fourteenth Amendment, may be somewhat more extensive. Certainly the framers of the First Amendment intended that it should be. This article will deal with federal power over speech.

Constitutional Law - Due Process -Watkins V. United States As A Limitation On Power Of Congressional Investigating Committees, Allan F. Bioff S. Ed.

Michigan Law Review

It is the purpose of this comment to examine the nature and extent of the restraints imposed by the Watkins case as well as the potential problems raised by the decision.

Constitutional Law - Executive Powers - Use Of Troops To Enforce Federal Laws, Robert H. Elliott Jr., S.Ed., Richard I. Singer S.Ed.

Michigan Law Review

The recent use of federal troops in Little Rock, Arkansas to enforce the order of a federal district court requiring school integration has occasioned widespread controversy throughout the nation. It is the purpose of this comment to examine the constitutionality of such action and to consider its broader implications with respect to federal-state and congressional-executive relationships.

Constitutional Law - Courts-Martial - Power Of Congress To Provide For Military Jurisdiction Over Civilian Dependents, Gerald M. Smith

Michigan Law Review

Defendants, civilian wives of servicemen living overseas, were tried and convicted of murder by military court-martial under article 118 of the Uniform Code of Military Justice. Their trials took place in the countries where they were living with their husbands. Defendants brought petitions for a writ of habeas corpus challenging the constitutionality of article 2(11) of the Uniform Code authorizing their trials by court-martial. Initially the United States Supreme Court rejected this contention. On rehearing, held, reversed, two justices dissenting. The guarantee of the right to jury trial contained in article 3, section 2, and the guarantees of the …

Chafee, Jr.: The Blessings Of Liberty, Nathaniel Nathanson

Michigan Law Review

A Review of The Blessings of Liberty. By Zechariah Chafee, Jr.

Estoppel And Crown Privilege In English Administrative Law, Bernard Schwartz

Michigan Law Review

Perhaps the most anachronistic doctrine in Anglo-American public law is that of sovereign immunity. Under it, the State is placed in a privileged position of immunity from the principles of law which are binding upon the ordinary citizen, unless it expressly consents to be bound by such principles. In Anglo-American law the infallibility attributed to the King in the days when he was personally sovereign has been more recently recognized in the State, which the Crown now merely personifies. Thus, even today, and even in the American democracy, the basic principle of public law is that the King can do …