Supreme Court of the United States Commons^™

Judicial Jurisdiction: From A Contacts To An Interest Analysis, Luther L. Mcdougal L. Mcdougal Iii

Vanderbilt Law Review

This Article examines whether the courts should shift their focus to a policy or interest analysis in judicial jurisdiction cases. The Article initially identifies some of the theoretical inadequacies of, and practical difficulties with, the Supreme Court's purposefully availing/minimum contacts approach to jurisdictional problems. The Article then outlines an alternative approach that employs a comprehensive form of interest analysis. After setting forth this proposed framework, the Article proceeds to examine Supreme Court decisions since International Shoe from the standpoint of the outcomes that an interest analysis approach might produce. Finally, the Article appraises these varying results and recommends that the …

Earl Warren: The Judge Who Changed America. By Jack Harrison Pollack, Richard Y. Funston

Vanderbilt Law Review

Earl Warren was a decent, personable, and humane man who had the good fortune to preside over the Supreme Court of the United States at a peculiarly propitious moment. That, surely, is enough to say for any man's lifetime, and someday the definitive biography of Warren will say it. In the meantime, it remains some-thing of a mystery why aging liberals find it necessary to canonize the late Chief Justice. Nevertheless, journalist Jack Harrison Pollack's Earl Warren: The Judge Who Changed America is the latest addition to the Warren hagiography. In it you meet Warren,the self-effacing, underpaid, young District Attorney; …

Justice Stevens: The First Three Terms, George C. Lamb, Iii, Charles L. Schlumberger, D. J. Simonetti, James D. Spratt Jr., Joel R. Tew, Douglas W. Ey, Jr. Special Projects Editor

Vanderbilt Law Review

This Special Project undertakes an examination of Justice Stevens' Supreme Court opinions in an effort to identify his philosophical orientations, to evaluate the consistency of his views, and to determine the extent to which he has developed workable analytical methods. To achieve these goals, Justice Stevens' opinions are examined in three contexts: first, the area of federal-state relations,including commerce clause and supremacy clause questions; second, the individual rights area, emphasizing criminal constitutional and first amendment issues, and problems of fifth and fourteenth amendment analysis; and third, questions concerning the proper role of the Supreme Court in the constitutional scheme. Even …

The Due Process Mandate And The Constitutionality Of Admiralty Arrests And Attachments Pursuant To Supplemental Rules B And C, Jon L. Goodman

Vanderbilt Journal of Transnational Law

In the past decade, the area of procedural due process, including traditional doctrines of in rem and quasi in rem jurisdiction, has undergone a constitutional facelift. As a result, two of admiralty's most extraordinary features--maritime attachment and garnishment and actions in rem--have been questioned from a constitutional standpoint.

The United States Supreme Court inaugurated the new era with its decision in Sniadach v. Family Finance Corp. In that case, the Court first began changing its procedural due process philosophy by broadening its conception of constitutionally protected forms of property. Having narrowly addressed itself to the question of what constitute constitutionally …

Reason Of Slavery: Understanding The Judicial Role In The Peculiar Institution, A. E. Keir Nash

Vanderbilt Law Review

The results most relevant to the concerns of this Article are of course the effects upon how we judge the judges-for almost always we are sufficiently Whiggish to attempt such a judgment, either explicitly or implicitly. At times the consequence of so summing can be to imagine that one catches the judicial conscience by asking questions phrased as Sentence D's query, whether the judges"collaborated" in a system of racial oppression. When we put the question this way, two unfortunate things happen. First, we create a verbal and historical muddle, for if anything ought to be clear by now it is …

The Early Legal Career Of Howell Jackson, Terry Calvani

Vanderbilt Law Review

Felix Frankfurter observed in 1937 that "American legal history has done very little to rescue the [United States Supreme] Court from the limbo of impersonality."' Subsequently, numerous individual and collective works have focused on the more prominent figures in the history of that institution.' Unfortunately, there remain many justices of the Supreme Court who have received relatively little scholarly attention. Yet, as one political scientist has recently lamented, "[until] there is a fuller awareness of the inter-play between individual personalities and decision making, it is unlikely there will be 'an adequate history of the Supreme Court."

One such individual is …

Judicial Policy-Making And Information Flow To The Supreme Court, Charles M. Lamb

Vanderbilt Law Review

This article is intended as an exploratory step toward filling the gap in the literature by synthesizing the fragmentary knowledge relating to judicial information flow. It attempts to advance the dialogue initiated by Professors Miller and Barron by providing a number of components necessary for an adequate model; it seeks also to suggest additional considerations necessary for a more useful model and thus for a continuing systematic inquiry into the information flow process. Results of the Miller-Barron article supply the background for the work reported here. Times, Roe, and Doe and the Miller-Barron findings are considered in the first two …

Abstention: The Supreme Court And Allocation Of Judicial Power, Randall P. Bezanson

Vanderbilt Law Review

In an era of continually expanding federal judicial power, the Supreme Court has fashioned and employed several devices designed to delegate certain classes of federal question litigation to the state court systems. Among these devices are the doctrines of abstention, comity, and exhaustion of state remedies. Implementation of these doctrines has enabled the Supreme Court to maintain state judicial presence in federal question litigation and retain at least the appearance of a manageable federalized judicial structure. This article will attempt to analyze the function of the abstention doctrines as judicially-created tempering devices. Following a brief discussion of the factors that …

Book Reviews, Wythe Holt, Kermit L. Hall

Vanderbilt Law Review

The recent death of Earl Warren reminds us, rather sadly, that the great Chief Justice and "his" Court have been subjected to withering and sometimes vicious and unfair criticism from within the academic circle.' The heart of the criticism (most charitably put) has been that the Warren Court hastily, simplistically, and even unnecessarily attempted to elevate egalitarianism into a high,perhaps the highest, social value and standard for constitutional and governmental decision making. We like to think that we believe in a democracy free for all-that is the way we portray ourselves propagandistically to the rest of the world-but the truth …

The Court, The Constitution, And Chief Justice Burger, William F. Swindler

Vanderbilt Law Review

Although the constitutional crisis of 1973 has not yet demanded a definitive response from the Supreme Court, it obviously has established a landmark in the ultimate history of Warren Burger's Chief Justiceship. While the unprecedented confrontation between executive and judiciary was not carried beyond the Court of Appeals for the District of Columbia, Burger's old court,' and although the prospective confrontation between executive and Congress did not--at least in its first round-- reach a stage of review on the merits, the questions presented went to the cornerstones of Anglo-American constitutional theory itself. The case of Vice President Agnew raised issues …

The Supreme Court's Jurisdiction--Reform Proposals, Discretionary Review, And Writ Dismissals, James F. Blumstein

Vanderbilt Law Review

With judicial reform a matter of intense public debate, it is essential that one understand the political consequences that may result from the adoption of various reform measures. Moreover, it is important to recognize that an evaluation of any proposed change must proceed from one's conception of the role of the Supreme Court in our society and one's perception of the foundations of its legitimacy. Similar considerations also must shape one's analysis of the rule of four and the Court's practice of dismissing certiorari as improvidently granted. While discretionary review increasingly has politicized a large portion of the Court's work, …

Book Reviews, Francis X. Beytagh, Jr., Robert L. Carter, William E. Miller, Judge

Vanderbilt Law Review

Books Reviewed:

The Supreme Court and the Idea of Progress

by Alexander M. Bickel

New York: Harper & Row, 1970. Pp. xii, 210. $6.50.

Politics, the Constitution and the Warren Court

By Philip B. Kurland Chicago

University of Chicago Press, 1970. Pp. xxv, 222.$9.75.

Reviewer: Francis X. Beytagh, Jr.

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Books Reviewed:

Politics of Southern Equality: Law and Social Change in a Mississippi County

By Frederick M. Wirt

Chicago: Aldine Publishing Co., 1970. Pp. 335. $10.00.

reviewer: Robert L. Carter

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The Apportionment Cases

By Richard C. Cortner Knoxville: University of Tennessee Press, 1970. Pp. ix. 283. $10.00.

reviewer William …

The Supreme Court And Fundamental Rights--A Problem Of Judicial Method, James H. Wildman

Vanderbilt Law Review

Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when "liberty" will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy …

The Supreme Court: Viable Fallibilism Or Fatal Infallibility, Bernard Goodwin

Vanderbilt Law Review

The recent growth in the importance and apparent power of the Supreme Court has been one result of our rapidly changing twentieth century society. In the social ferment of the last two decades, the Court, more than Congress, has expressed the conscience and intellectual consensus of American culture. Speaking as a practicing attorney and concerned citizen, the author of this article does not criticize the Court for stepping into this gap in our governmental structure, but he feels that the possibility of increased activism on the part of the Court indicates a serious breakdown in governmental checks and balances and …

The Haynsworth Affair Reconsidered: The Significance Of Conflicting Perceptions Of The Judicial Role, Edward N. Beiser

Vanderbilt Law Review

Between 1900 and 1968, the Senate had refused to confirm an appointee to the Supreme Court on only one occasion. Then, within a two year period, the Senate twice refused to confirm an appointment: Associate Justice Abe Fortas, nominated as Chief Justice in 1968, was never acted upon because of a Senate filibuster,and his name was withdrawn; and Judge Clement Haynsworth, whose nomination provoked a great deal of debate and controversy, was ultimately rejected by the Senate by a vote of 55 to 45. These two incidents marked a distinct change from the traditional custom of Senatorial acquiescence to Presidential …

Book Reviews, Law Review Staff

Vanderbilt Law Review

This is a deceptive book. It appears to be one more friendly appraisal of the work of the Warren Court--this time from the recent Solicitor General-surveying in giant steps and broad strokes its decisions in six major areas within the short space of 135 pages. On close reading it turns out to be a tough-minded essay written with notable lucidity, analytical density, and high professional competence. Moreover, it confronts directly and steadily the well-worn paradox or dilemma of the Supreme Court of the United States which must be both court and political institution, and it seriously attempts to appraise the …

Book Notes, Law Review Staff

Vanderbilt Law Review

Identification & Police Line-ups By William E. Ringle New York: Gould Publications, 1968. Pp. x, 211. $5.00 (Paper)

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Metropolitan Decision Processes: An Analysis of Case Studies By Morris Davis & Marvin G. Weinbaum. Chicago: Rand McNally & Co., 1969. Pp. xx; 131.

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The Impact of Supreme Court Decisions Edited by Theodore L. Becker. New York: Oxford University Press, 1969. Pp. 213. $2.50 (Paper).

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The Limits of the Criminal Sanction By Herbert L. Packer.Stanford: Stanford University Press, 1968. Pp. xi, 385. $8.95.

Book Reviews, William L. Shaw, Cephus L. Stephens

Vanderbilt Law Review

BOOK REVIEWS

LITTLE GROUPS OF NEIGHBORS: THE SELECTIVE SERVICE SYSTEM. By James W. Davis, Jr. and Kenneth M. Dolbeare. Markham Publishing Co., Chicago, 1968. Pp. 268.

reviewer: William L. Shaw

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THE SUPREME COURT AND THE NEWS MEDIA. By David L. Grey, Evansville: Northwestern University Press. 1968. Pp. 194. $5.95.

reviewer: Cephus L. Stephens

The Desegregation Opinion Revisited:Legal Or Sociological?, Morris D. Forkosch

Vanderbilt Law Review

It is the thesis of this article that the Supreme Court, regardless of its decision for or against the state laws, had the judicial ability and jurisdiction to render the opinion in the Desegregation Case of 1954. A distinction is drawn here between the judicial power to decide a case regardless of any attendant consequences, and the reasons given for that decision. When reasons which were supposedly valid seventy years ago are now rejected, there is nothing illogical in this rejection so long as the Court still adheres to the identical procedure used earlier; but when the substance within the …

Book Reviews, Robert H. Birkby, Elliot E. Cheatham

Vanderbilt Law Review

Law and Politics in the Supreme Court By Martin Shapiro New York: Free Press of Glencoe, 1964. Pp. 333. $6.95.

reviewer: Robert H. Birkby

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Lives of the Lord Chancellors, 1885-1940 By R. F. V. Heuston Oxford: Clarendon Press, 1964, Pp. xxiii, 632.

reviewer: Elliot E. Cheatham

In Search Of Holmes From Within, Saul Touster

Vanderbilt Law Review

What appears here is part of a longer psychological study of Holmes which takes as points of focus, or rather of entree, four of his life choices: his enlistment in the Union forces while still in college in 1861, his entrance into law school in 1864, his decision to give up a law professorship at Harvard in 1882 in favor of the Massachusetts bench, and finally, his move to Washington and the Supreme Court in 1902. In a sense this last was not a choice. There were not the clear alternatives before him as there were in the first three--he …

Theodore Roosevelt And The Appointment Of Mr. Justice Moody, Paul T. Heffron

Vanderbilt Law Review

The author here describes the events leading to the appointment of William Henry Moody to the United States Supreme Court. Here counts the pressures brought to bear on President Theodore Roosevelt and the considerations which led to the President's selection of Moody over Horace Harmon Lurton.

Justice Joseph Story: A Study Of The Legal Philosophy Of A Jeffersonian Judge, Morgan D. Dowd

Vanderbilt Law Review

Few studies have sought to explicate the legal philosophy of Joseph Story despite his enormous reputation as scholar, Supreme Court justice and professor at the Harvard Law School. Worse still, there has been little critical analysis of nineteenth-century concepts and statements of the law.' The purpose of this essay, then, is to examine the validity of Story's legal theories and to evaluate his work as a major contributor to American public law. As a result of this study,it is hoped that progress can be made toward a greater understanding of the man, the justice, and his philosophy of law.

Chief Justice Taft At The Helm, Alpheus T. Mason

Vanderbilt Law Review

The office of Chief Justice carries scant inherent powers. The Chief Justice manages the docket, presents the cases in conference, and guides the discussion. When in the majority, he assigns the writing of opinions. Whatever influence he exerts in the exercise of these prerogatives rests less on formal authority than on elusive personal characteristics. Charles Evans Hughes, who had served as Associate Justice from 1910 to 1916 and later had been able to observe Taft's role in the Court over a period of seven years, considered the Chief Justice "the most important judicial officer in the world." His actual power, …

Salmon P. Chase: Chief Justice, David F. Hughes

Vanderbilt Law Review

This article is not an in-depth study of some aspect of Salmon P. Chase's career as Chief Justice. Nor is it a survey of his judicial career. Rather, it is an attempt to present an overall view of Chase as Chief Justice through an examination of a limited number of topics. Such an approach seemed appropriate, for the sweep of his days on the Court are not well enough known to make a detailed study of one aspect of his career particularly valuable, nor is enough known about him to make a summary more than an exercise in superficiality. In …

Justice Murphy: The Freshman Years, Woodford Howard

Vanderbilt Law Review

Justice Murphy is commonly regarded as having been a libertarian activist. He was not highly regarded as a Justice during his lifetime and this opinion prevails today. Here Professor Howard sees Justice Murphy during his early years on the Supreme Court as a man of indecision rather than an uncompromising libertarian. Through an examination of first amendment cases between 1940-42, the author finds that Murphy displayed a common reaction to the responsibilities of a new Supreme Court Justice which differed from most only in intensity.

Chief Justice Waite And The "Twin Relic": Reynolds V. United States, C. Peter Magrath

Vanderbilt Law Review

In the landmark case of Reynolds v. United States, the United States Supreme Court held that a general law prohibiting polygamy did not abridge the religious freedom of members of the Mormon faith guaranteed by the first amendment. The author here explores the background of Chief Justice Waite's opinion in Reynolds v. United States: the tenets and development of the Mormon faith in the United States, the character of the Waite Court, and the sources and development of Chief Justice Waite's opinion in the case.

Book Notes, Law Review Staff

Vanderbilt Law Review

In his discussion of the traditional power framework within which the Supreme Court operates the author covers old ground, dealing with such matters as the jurisdictional limitations upon the Court, its law court function of making case by case determinations, and its self-imposed restraints as to when and how it will hear and determine a controversy. The second broad heading, entitled "Marshalling the Court," forms probably the most fascinating chapter in the book. The author is here concerned with the issue most vital to any policy-oriented Justice: How can he win and hold for his side at least four other …

Immunity Through Confession?, John A. Spanogle Jr.

Vanderbilt Law Review

Does this advice from Judge Leonard P. Moore sound fanciful? Could it ever profit a criminal to confess his guilt? The advisability of such action may not be as improbable as it sounds. In order to determine whether it is fanciful or not it is necessary to review several cases decided by the United States Supreme Court, which this article will undertake to do.

Book Reviews, Ronan E. Degnan, Jerold Israel, Robert F. Drinan S.J.

Vanderbilt Law Review

Cases and Materials on Debtor and Creditor

By Vern Countryman

Boston: Little, Brown & Co., 1964. Pp. lxiii, 841. $12.50.

reviewer: Ronan E. Degnan

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The Supreme Court on Trial

By Charles S. Hyneman

New York: Atherton Press, 1963. Pp. IX, 308. $6.50.

reviewer: Jerold Israel

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Religion and American Constitutions (1963 Rosenthal Lectures)

By Wilbur G. Katz

Northwestern University Press 1964. Pp. 114. $3.50.

reviewer: Rev. Robert F. Drinan, S.J.