CONSTITUTIONAL LAW - SEPARATION OF POWERS - POWER OF THE COURTS AND LEGISLATURE TO REGULATE THE PRACTICE OF LAW AND PROCEDURE

Authors

Peter S. Boter, University of Michigan Law SchoolFollow

Abstract

In theory, the doctrine of separation of powers presents a governmental system with spheres of power for each department, separated by clear lines of demarcation. Yet in practice it does not follow that a complete separation of powers could be effected or would be desirable. The concurrent exercise of a power by two coordinate branches of a government may result in conflicting regulations and also in charges that the exercise of the power by one department is an unconstitutional encroachment on the powers to be exercised by another and coordinate department. This situation is present in the concurrent exercise of the power to regulate the practice of law by the judicial department and the legislative department. The conflicting views resulting are clearly illustrated by two opinions in the recent case of Clark v. Austin. In the principal opinion, the power to regulate the practice of law was stated to be exclusively judicial; in a special concurring opinion, signed by a majority of the court, the practice of law was said to be subject to regulation by both the judicial and the legislative branches of the government, and it was also said that regulation by the legislative branch was not necessarily an unconstitutional encroachment on the inherent power of constitutional courts over this subject.

Recommended Citation

Peter S. Boter, CONSTITUTIONAL LAW - SEPARATION OF POWERS - POWER OF THE COURTS AND LEGISLATURE TO REGULATE THE PRACTICE OF LAW AND PROCEDURE, 36 Mich. L. Rev. 82 (1937).
Available at: https://repository.law.umich.edu/mlr/vol36/iss1/5