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Retroactive Legislation Affecting Interests in Land
John Scurlock
Professor Scurlock's monograph covers an area of the law which is commonly by-passed in treatises and in classroom instruction. If we could merely tear Maitland's "seamless web" of the law and retain all the shreds, no part of the legal system would escape us. What we actually do, however, is to set up, in a more or less arbitrary fashion, numerous centers of legal classification, such as contracts, torts, property and constitutional law, to which closely related legal materials are attracted as to a magnet. But those legal materials which stand midway between two centers of attraction are likely to be subjected to equal magnetic pulls in opposite directions and to be drawn to neither.
These observations are particularly applicable to legal doctrines concerning the subject of retroactive legislation affecting interests in land. The constitutional law expert has left it for the property expert. The property expert has left it for the constitutional law expert. Thus, no one has given it adequate treatment.
But the practitioner, the judge and the legislator cannot limit the field of their activities to the law which clusters about certain arbitrarily selected centers. They must deal equally with the borderline areas, because to them law is an aspect of life. The scores of reported cases in the law books dealing with retroactive statutes concerning land bear silent witness to the importance of the subject of this monograph and the frequency with which its problems arise.
The statute books are full of retroactive legislation which modifies traditional incidents of property institutions. No lawyer can safely advise his client concerning the effect of such statutes, without some basic notions of their validity under state and federal constitutions. Yet up to this time there has been no adequate treatment of this problem as a unit. Indeed, far from finding any guiding principles in standard textbooks, the lawyer may even have serious difficulty in locating all the reported decisions which deal with the precise question of constitutionality with which he is confronted. Professor Scurlock's monograph will aid the lawyer in both particulars. It will give him guiding principles, and it will furnish him with an adequate picture of the case law dealing with his own peculiar problem.
Moreover, this monograph will supply a long felt want of the legislator. Everyone who has drafted legislation modifying the law of real property has been confronted at the outset with the question: Shall I make this applicable to interests in property already created? Or shall I limit its operation to interests arising under deeds and wills which take effect after the legislation is enacted? Professor Scurlock's book throws a flood of light upon this question, such as will be found in no other treatise or article.
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Administrative Agencies and the Court
Frank E. Cooper
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 and the parties with whom they deal; (2) to describe the criteria and techniques of administrative adjudication-what may be termed the jurisprudence of administrative tribunals-within these courtimposed standards.
No attempt has been made to discuss the problems of administrative organization and agency management, which are of particular interest to the political scientist and specialist in government. The purpose of this volume is more modest. It is an examination of the relationship between administrative agencies and the courts, with particular reference to judicial doctrines concerning: (1) constitutional limitations on the delegation of powers to administrative agencies; (2) procedural requirements in cases where agencies exercise judicial powers; (3) procedural and substantive requirements imposed in connection with rule-making activities; (4) methods and scope of judicial review.
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Our Legal System and How it Operates
Burke W. Shartel
Five lectures delivered at the University of Michigan February 23, 24, 25, 26, and 27, 1948 on the Thomas M. Cooley Lectureship, enlarged and revised.
First, it is descriptive of the American legal system as it now exists, not of past law and not of legal systems in general. Second, it portrays the legal system as an operating institution. Third, I have given a large place to the discussion of language in relation to law. Fourth, I have given a considerable amount of space to a discussion of the ways in which statutes are made and interpreted. Fifth, technical ideas and technical terminology have been avoided as far as possible. Sixth, there is need to impart a vast deal of plain information about our legal system and how it operates. Finally, I have coupled with the textual material a variety of problems for discussion. This is in line with the problem method which we use consistently in legal instruction
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The Conflict of Laws: A Comparative Study. Volume Three. Special Obligations: Modification and Discharge of Obligations
Ernst Rabel
Among the multitude of conflicts principles that, according to various claims, should determine the law applicable to all contracts, only two have resisted the test of critical analysis. These, indeed, form an adequate groundwork. First, the freedom of parties to choose the law applicable to their contract must be recognized as a general rule without petty restraint. Second, in the absence of such agreement, a contract should be governed by the law most closely connected with its characteristic feature.
The first proposition is essential to the second. To deny party autonomy means rigid conflicts rules created by some superior authority. A scholastic doctrine may invest the law of the place of contracting with ineluctable force; a state may forbid stipulations for a foreign law. However, our modest task requires but a reasonable choice of law advisable for average use by courts and legislatures. This cannot aspire to ascertain more than subsidiary rules. It is not possible to achieve anything practical by attempting to coerce the parties into an inexorable law of our creation. This conception is perfectly consistent with a considered regard to the large significance of public law at the present time. It even allows and facilitates a line of thought leading to the subsidiary application of the private law of that state which, by its administrative law, preponderantly regulates certain kinds of business. This will appear in such contracts as maritime carriage of goods, employment, and msurance.
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Survey of Metropolitan Courts: Detroit Area
Maxine Boord Virtue
It has long been recognized that the social problems of the city are something more than a mere multiple of the social problems of the rural community. The bigness of the metropolitan area breeds its own difficulties, which find no counterpart outside its borders. Only recently, however, have experts begun to suggest that this same uniqueness inheres in the problems of the organization of metropolitan courts.
Should the organization of the metropolitan court system differ from court organization elsewhere? How should it differ? Before these questions can be answered, we must know something of existing court organizations in metropolitan areas and of the manner in which they operate. It was for the purpose of securing this necessary background of information that the present study of the Detroit area was undertaken. It proposes to answer this question: What is the judicial organization of the Detroit area, and how does it function?
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Soviet Civil Law: Private Rights and Their Back-Ground Under the Soviet Regime Comparative Survey and Translation of the Civil Code; Code of Domestic Relations; Judiciary Act; Code of Civil Procedure; Laws on Nationality, Corporations, Patents, Copyright, Collective Farms, Labor; and Other Related Laws. Volume 2.
Vladimir E. Gsovski
For centuries, jurisprudence has been built up and developed in terms of a more or less comparable body of concepts: family, private ownership, individual rights, and the State, the necessity of which was challenged in the original program in the name of which the soviet government assumed the reins of power. What then is the fate under the soviet regime of the legal concepts thus far operative in all civilized societies? This book seeks to offer material for the answer to questions of this nature. The principal aim of the author has been to inquire into the legal protection and actual exercise of private rights in the Soviet Union, on the basis of an examination of the authentic soviet sources. Extensive quotations from these sources in the discussions in Volume I and full translations of major codes and other enactments in Volume II are intended to help the reader to form his own opinion and to check the conclusions of the author.
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Soviet Civil Law: Private Rights and Their Back-Ground Under the Soviet Regime Comparative Survey and Translation of the Civil Code; Code of Domestic Relations; Judiciary Act; Code of Civil Procedure; Laws on Nationality, Corporations, Patents, Copyright, Collective Farms, Labor; and Other Related Laws. Volume 1.
Vladimir Gsovski
For centuries, jurisprudence has been built up and developed in terms of a more or less comparable body of concepts: family, private ownership, individual rights, and the State, the necessity of which was challenged in the original program in the name of which the soviet government assumed the reins of power. What then is the fate under the soviet regime of the legal concepts thus far operative in all civilized societies? This book seeks to offer material for the answer to questions of this nature. The principal aim of the author has been to inquire into the legal protection and actual exercise of private rights in the Soviet Union, on the basis of an examination of the authentic soviet sources. Extensive quotations from these sources in the discussions in Volume I and full translations of major codes and other enactments in Volume II are intended to help the reader to form his own opinion and to check the conclusions of the author.
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The Conflict of Laws: A Comparative Study. Volume Two. Foreign Corporations: Torts: Contracts in General
Ernst Rabel
Full application of comparative methods to the law of conflicts requires a working plan of some magnitude. We ought to take stock of the conflicts rules existing in the different countries of the world, state their similarities or dissimilarities, and investigate their purposes and effects. The solutions thus ascertained should moreover be subjected to an estimation of their usefulness, by the standards appropriate to their natural objective. Conflicts rules have to place private life and business relations upon the legal background suitable to satisfactory intercourse among states and nations. They are valuable to the extent that their practical functioning, rather than their legal appearance, serves this purpose.
To meet the challenge of this program with limited forces is a risky undertaking. Nevertheless it has to be attempted. The conditions of the law of conflicts are deplorable. It may be said, to the reader's and my own consolation, that the staggering provincialism apparent in the international family law presented in this volume is not equaled in other parts. But if conflicts problems have been cultivated by men of the highest erudition, idealism, and endeavor, they have also been the object of prejudice and dogmatism. Suggestions of almost all needed ideas may be found, but little agreement on a sound choice. The courts of this country dealing with a wealth of interstate cases have prevailingly shown sincere respect for foreign legislation and applied an accomplished method of comparative research. But this admirable attitude, which is the most outstanding model for the practice of private international law, suffers exceptions, and in the field of international relations throughout the world, despite enormous efforts, the simple truth that harmony presupposes mutual understanding and tolerance, has not prevailed in conflicts law more than in foreign affairs.
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Problems in Probate Law: Including a Model Probate Code
Lewis M. Simes and Paul E. Basye
The publication of the Model Probate Code, together with related monographs and appendix notes, serves a dual purpose. It is the report of a committee of the Probate Division of the American Bar Association. It is also the product of a research project carried on by the University of Michigan Law School. Mr. R. G. Patton, in his "Presentation of the Report of the Committee on Model Probate Code," printed elsewhere in this volume, has provided an appropriate preface for this publication in its first aspect.
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Unreported Opinions of the Supreme Court of Michigan, 1836-1843
William W. Blume
In July 1836 final jurisdiction of non-federal litigation passed from the Michigan Territorial Supreme Court to the Supreme Court of the State of Michigan. Then, substantially as now, the Constitution provided: "The judicial power shall be vested in one supreme court, and such other courts as the legislature may from time to time establish." Mich. Const. 1835, Art. VI, §1. Those who are interested in the judicial history of Michigan prior to 1836 are fortunate in having access to much of such history contained in the six volumes entitled "Transactions of the Supreme Court of Michigan," edited by Professor William Wirt Blume of the Michigan Law School faculty. Along with other interesting material, he has included therein and thus made available some seventy of the opinions of the Michigan Territorial Supreme Court. His present volume of "Unreported Opinions of the Supreme Court of Michigan, 1836-1843" brings to light and for the first time makes accessible the Michigan Supreme Court decisions therein contained which were rendered during the indicated period of seven years.
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The Conflict of Laws: A Comparative Study. Volume One. Introduction: Family Law
Ernst Rabel
Full application of comparative methods to the law of conflicts requires a working plan of some magnitude. We ought to take stock of the conflicts rules existing in the different countries of the world, state their similarities or dissimilarities, and investigate their purposes and effects. The solutions thus ascertained should moreover be subjected to an estimation of their usefulness, by the standards appropriate to their natural objective. Conflicts rules have to place private life and business relations upon the legal background suitable to satisfactory intercourse among states and nations. They are valuable to the extent that their practical functioning, rather than their legal appearance, serves this purpose.
To meet the challenge of this program with limited forces is a risky undertaking. Nevertheless it has to be attempted. The conditions of the law of conflicts are deplorable. It may be said, to the reader's and my own consolation, that the staggering provincialism apparent in the international family law presented in this volume is not equaled in other parts. But if conflicts problems have been cultivated by men of the highest erudition, idealism, and endeavor, they have also been the object of prejudice and dogmatism. Suggestions of almost all needed ideas may be found, but little agreement on a sound choice. The courts of this country dealing with a wealth of interstate cases have prevailingly shown sincere respect for foreign legislation and applied an accomplished method of comparative research. But this admirable attitude, which is the most outstanding model for the practice of private international law, suffers exceptions, and in the field of international relations throughout the world, despite enormous efforts, the simple truth that harmony presupposes mutual understanding and tolerance, has not prevailed in conflicts law more than in foreign affairs.
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The Prevention of Repeated Crime
John B. Waite
Though this study is concerned fundamentally with the prevention of crime, it deals only with that part of the field wherein prevention of further crime is sought through treatment of known criminals. The whole field of crime prevention is, of course, much wider than that particular part. With a reasonable degree of logical distinction, it represents five major divisions of particularized interest. The first involves the question of what activities are to be considered as crimes and ought, as such; to be prevented. The second division assumes that a crime has been committed and covers the various activities by which responsibility for its commission is fixed upon a particular individual. The third and fourth divisions assume certain activities as definitively criminal and involve the procedures by which organized society seeks to forestall their perpetration. This prophylactic, preventive activity is of two essentially different types. One type seeks to prevent crime by correcting or alleviating the social and economic conditions which cause crime through their pressure upon the individual. Of this type are efforts toward slum clearance, unemployment insurance, community facilities for lawful expenditure of surplus energies, prohibition of the manufacture or sale of intoxicating liquors. The other type of prophylactic activity, which may be called the fourth division of preventive effort, includes the preventive measures designed to operate upon the individual himself, in the hope of guiding his reactions to social and economic conditions into safe channels, or of so controlling his person in one way and another as to render his reactions harmless. This fourth division may in its turn be divided into two. One comprises all such efforts-trade-training, crime preventive medicine and surgery, teaching of temperance, education, instilling of fear-as are directed toward the group as a whole, without special regard for those who have already offended against the law. The other division comprises such activities as may be directed particularly toward prevention of repeated criminality on the part of persons who have already offended one or more times.It is this latter problem, this fifth division of crime preventive activities, with which this discussion is concerned-the problem of preventing repeated crime through treatment of the known criminal himself.
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Torts in the Conflict of Laws
Moffatt Hancock
There has been in recent years a marked development of interest in the diversities of laws and their attendant conflicts. While modern facilities of communication accelerate the spread of culture and thus augment the need of uniformity in the laws affecting commerce, they also reveal the significance of local needs, customs, and legal institutions. Indeed, it would seem that multiplication of jurisdictions and progressive diversification of laws in both space and subject matter is an unavoidable concomitant of increasing specialization in the international, interstate, or local economy. If these circumstances serve to justify the perennial effort to simplify the law, they also argue that the effort is Sisyphean. Meanwhile, determination of the competent court and the appropriate law in the juridical conflicts arising in the course of commerce is requisite.
It is sometimes objected that the resolution of conflicts of laws through rules guiding the selection of the applicable law is, as contrasted with the method of unification, a pis aller. But it would seem that, for the substantial group of problems engendered by the necessary division of judicial business and the variation of law according to the peculiar needs of particular communities, there is no feasible alternative. Indeed, it may be said that, while a substantial measure of legal unity may be attainable in homogeneous culture areas, particularly when united under a common government, and unification of law is particularly desirable in the field of international commerce, the notion of eradicating the sources of diversity through universal standardization of local customs and enactments, is under existing conditions palpably vain and, in certain respects, even vicious. A common law is suitable only for common conditions and in any event does not obviate the inevitable issues of jurisdiction. It can scarcely be doubted that clearer perception of this situation has stimulated the current interest in conflicts of laws. For, in the degree that uniformity appears unattainable, the bases determining the applicable law in cases of conflict assume consequence.
Of this increased interest, the literature respecting conflicts of laws that has appeared in the United States during the past two decades is ample testimony. On the one hand, there has been a major endeavor to systematize the field through the Restatement of the Law of Conflict of Laws, which has been supplemented by a monumental treatise and two valuable, if less extensive, manuals. On the other hand, there has been prolific consideration of specific problems in the law reviews, and the courts have concurrently provided an unusually rich casuistry of judicial opinion. In addition, the general theoretical issues have attracted attention, and more recently a degree of emphasis has been given to the value of comparative study in this field. There have, however, appeared relatively few exhaustive monographic studies of topics adequate in scope to afford a testing-ground for the more general or theoretical developments and at the same time carrying sufficient detailed consideration of specific problems to serve the needs of the practitioner.
From this point of view and on several counts> the present study deserves attention. It comprizes a comprehensive survey of the reported Anglo-American cases in an area of great practical interest, which at the same time throws into relief the principal fundamental issues respecting the selection of the applicable law in cases of conflicts. A distinctive, if not indeed unique, feature of this survey is that it compares in detail the historical and doctrinal developments not merely in England and the United States but in the chief British Dominions as well; it thus provides an illuminating perspective of the evolution of legal theory and practice in these related areas of legal culture. The technique followed is in refreshing contrast to the prevailing predilection for logistics in dealing with conflicts of laws; its significant premise is to relate and criticize the recorded cases in terms of the fundamental policies involved in preference to more formal consideration. On this basis, the author develops a mode of approach to the central theoretical problems concerning characterization (otherwise known as qualification or classification) and the primary distinction between substance and procedure, which, while of course indebted to prior critical studies, is nevertheless both original and practical. In this connection, emphasis is given to an aspect of the matter too little developed in the current literature, namely, that of alternative or multiple reference, involving the potential applicability of laws emanating from several jurisdictions in what the author appropriately designates as "multiple contact situations." Moreover, the treatment is in a style lucid and exact, which, the substance considered, is something of an achievement and a deceptively modest advertisement of incisive analysis.
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The Amending of the Federal Constitution
Lester Bernhardt Orfield
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 clause of the Fourteenth Amendment. As a result, the amendment clause has almost been lost sight of. No monograph on Article Five has been published prior to the present book. Yet when one stops to realize that the subjects just referred to have to do only with the existing distribution of powers, and that the operation of the amending power may bring about a complete reshuflling of the Constitution, it becomes obvious that one is dealing with a power of a higher grade and of more potential importance than any other power provided for in the Constitution.
One may approach the study of the amending clause from at least three different points of view: from that of constitutional law, from that of jurisprudence and legal philosophy, and from that of political science and legislation. From the standpoint of constitutional law the genesis and justiciability of the power may be considered; the procedure of amendment may be examined in detail; and the scope of the amending power may be analyzed. From the point of jurisprudence, the relation of the amending power to the concept of sovereignty may be developed. Finally, from the standpoint of political science and legislation, the reform of the amending process itself may be made the basis of investigation.
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Review of administrative acts : a comparative study of the doctrine of the separation of powers and judicial review in France and the United States
Armin Uhler
The present study was originally inspired by the widespread interest in the doctrine of the separation of powers stimulated by current discussions of vital problems of administrative law. Frequent reference to this doctrine occurs especially in recent legal literature concerned with the relation between the administrative and judicial departments of government. Particular mention may be made of the attention which has been given the doctrine by the Special Committee on Administrative Law of the American Bar Association. However, the allusions to the doctrine in these discussions to prevalent separation of powers in the organization of government have not always been sufficiently discriminating. Mirabeau's warning in the constitutional debates of 1789 in France not to invoke the formula without first carefully ascertaining its true meaning is as timely today as it was then.
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Discovery before Trial
George Ragland Jr.
The purpose of this volume is to present in a convenient and usable form a comparative study of the expedients which are being employed in various American and English jurisdictions for the purpose of facilitating pre-trial practice, to describe the practical operation of the different devices, and to show their effect upon the general administration of justice. An analysis of the statutory and case law has been combined with data which shows the practical operation of the procedure in the everyday work of the lawyer and judge. Field studies were made by the author in different cities of the following fourteen jurisdictions for the purpose of ascertaining the experience of the profession with each type of device which is being used: Indiana, Kansas, Kentucky, Massachusetts, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Ontario, Quebec, Texas, and Wisconsin. Interviews were sought with representative judges, lawyers, and where there were such, officials in charge of discovery examinations. Other means employed in obtaining information included the study of trial court records of examinations for discovery, observation of actual examinations and· correspondence with lawyers in states other than those in which field investigations were made.
The Michigan Legal Studies series contains monographs published by the Law School in the 1960's and 1970s. Many were authored by University of Michigan Law School faculty.
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