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The Cy Pres Doctrine in the United States: From Extreme Reluctance to Affirmative Action
Full text linkPerhaps no legal principle illustrates the use of Fourteenth Amendment equal protection jurisprudence more poignantly than the relatively obscure cy pres doctrine. The ancient doctrine which allowed both courts and the Crown in England to change trust purposes when the original trust purposes proved no longer viable was adopted belatedly, sporadically and partially by jurisdictions in the United States. In Part I, the author illustrates how the United States jurisdictions differ from England in the requirement for charitable intent. Earlier cases reveal the United States, unlike England, has resisted relaxation of the requirement. In Part II, the author uses the Restatement of Trusts to demonstrate further how the jurisdictions had developed differently at the mid-twentieth century point. In Part III, the author reports on the significant reforms in England and the corresponding, though halting, movement toward reform in the United States jurisdictions. In Part IV, the author describes the specific reform proposals in the United States proliferating since 1943. Finally, the author concludes that relaxation of cy pres doctrinal requirements is realized best by modest legislation and effective drafting
Creditors’ Rights – Attachment Revisited
No full textUnder the Twelve Tablets of Ancient Rome, an insolvent debtor’s body, after certain formalities, was cut up and divided among his creditors. Under state statutes of today, alleged debtor’s assets, after certain formalities, i.e. institution of a suit and application for a writ, may be attached and held pending litigation on the merits. The certain formalities required differ with each state. Pre-Sniadach Supreme Court holdings generally upheld state attachment statutes. In Sniadach, the Court reversed this approach, emphasizing that notice and a prior hearing are essential in wage attachment proceedings. These two essential elements can be overcome only by a showing of extra-ordinary circumstances necessitating a summary procedure
Pause at the Rubicon, John Marshall and Emancipation: Reparations in the Early National Period?, 35 J. Marshall L. Rev. 75 (2001)
Full text linkSearching for Remedial Paradigms: Human Rights in the Age of Terrorism
Full text linkNine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists’ extreme human rights violations without violating international human rights norms and international humanitarian law
John Marshall and International Law: Statesman and Chief Justice
No full textJohn Marshall became Chief Justice of the Supreme Court in 1801 at the age of forty-six. During his thirty-five year tenure (1801-1835), he wrote opinions in approximately eighty cases involving international law. Unquestionably until eight years before his appointment, Marshall\u27s view of the world was largely insular. Only in 1793 did he begin to focus on international problems and to work towards resolving them through the application of international law. Most scholars who have considered the question contend that Marshall learned international law from counsel\u27s arguments in cases which came before the Court and that his decisions reflect primarily on-the-job training. However, a close analysis of his experiences between 1793 and 1801, considered in relation to his decisions on international law while on the Court, reveals not only that he was schooled intensively in international law before he became Chief Justice, but also that he later applied the principles learned during his earlier experiences
A Matter of Power: Structural Federalism and Separation Doctrine in the Present
Full text linkPublic reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall\u27s letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall\u27s extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. Flores of last term. In Boerne, as in Green v. Biddle, congressional attacks were attempts to control the judicial decision making process, and in each instance Congress attacked not only the decision, but also the authority of the Court
Truman\u27s Court: A Study in Judicial Restraint
No full textGiven the subjective nature of decision making, the hope may have been unrealistic, then as now. Not only did each justice bring a host of individual predilections - personal and political as well as philosophical - to bear upon his decisions, the collegial nature of the Court immensely complicated the process as Court members interacted with each other, seeking support for their respective positions. Some compromise was inevitable. With equal inevitability, personality and personal relations entered into the final product, although to what degree is uncertain. Responding to this variety of influences, the Truman appointees, as their decisions reveal, adopted an eclectic approach, picking and choosing from the established judge-made rules formulated over the years to assist judges in reaching their decisions
Searching for Remedial Paradigms: Human Rights in the Age of Terrorism
Full text linkNine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists’ extreme human rights violations without violating international human rights norms and international humanitarian law
Searching for Remedial Paradigms: Human Rights in the Age of Terrorism
Full text linkNine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists\u27 extreme human rights violations without violating international humanitarian law
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