The Catholic University of America Columbus School of Law

Gallogly, Edward P., Jr.

Meng, George E.

English

Television: The Public Interest in License Renewals

Hickel, Walter J.

Catholic University Law Review Volume 20 Issue 1 Fall 1970 Article 3 1970 Statement Walter J. Hickel Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Walter J. Hickel, Statement, 20 Cath. U. L. Rev. 3 (1971). Available at: https://scholarship.law.edu/lawreview/vol20/iss1/3 This Symposium is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. StatementWalter J. Hickel, Secretary of the InteriorAs a nation we enjoy the benefits of one of the most efficient surfacetransportation networks in the world--our highway system. In a land massso vast, and so topographically diverse, our highways are essential to securityand commerce. They have served to link together communities that mightotherwise exist in semi-isolation; and, indeed, new communities have beenspawned along transportation routes.When the road network was first commenced, little forethought was givento the eventual effects that ribbons of concrete might have upon the naturallandscape, wildlife, or even people who lived along the main routes. Re-gard for urban problems created by our surface transportation systems usuallylagged far behind our desire to build more efficient highways. Thus, somecities that flourished because of their highway accesses are now becomingclogged with increasing traffic that is channeled through them.By the early 1960's, considerable concern began to develop that thehighway system was intruding in detrimental ways upon the total environ-ment-and consequently, upon the amenities of life for many people. Theneed to improve highway planning to include aesthetic and social considera-tions was recognized and reflected in the legislation establishing a Departmentof Transportation. That legislation promised "special effort would be madeto preserve the natural beauty of the countryside and public park and recrea-tion lands, wildlife and waterfowl refuges, and historic sites," and providedthat the Secretary of Transportation should consult with the Secretary of theInterior, as well as other federal and state agencies, to develop transportationprograms that "maintain or enhance the natural beauty of the lands traversed."As a result, the Department of the Interior has been able to exert its in-fluence upon transportation planning programs to avoid damage to naturalresources, to preserve scenic beauty, and to assure that a harmonious en-vironment be maintained on transportation routes. This goal is furtheredby the National Environmental Policy Act of 1969 which clearly recognizesthe need for maintaining a healthful and harmonious total environment inthe face of America's changing economy and growing population.MICHAEL G. SCHNEIDERMAN received his undergraduatedegree at Antioch College and is a graduate of the University ofChicago Law School. He is Acting Director of the Illinois Insti-tute for Environmental Quality, Executive Secretary of the IllinoisEnvironmental Quality Council, and a member of the Illinois andDistrict of Columbia bars.CAL K. COHN is a graduate of Columbia University and ofCornell University Medical College; he completed his internshipand residency in internal medicine at the New York Hospital. Dr.Cohn has served as a guest investigator, Department of Metabolismand Human Behavior, The Rockefeller University, and is at presenta research associate at the National Institute of Mental Health.GLENN PA ULSON received his undergraduate degree at North-western University and is a graduate fellow at The RockefellerUniversity, Department of Environmental Medicine. He is also amember of the Board of Directors of the Scientists' Committee forPublic Information.Environmental legislation currently in effect and administrativeregulations designed to implement the law require highway officialsto examine the effects of air, water, and noise pollution in planningproposed freeways. Minimum standards, however, are nowhereprescribed for the information to be assembled to guide planner,plaintiff, or fudge in evaluating environmental effects. The authorsargue that in most cases the record that paves the way to routelocation is seriously deficient in scientific data on pollutants. Theychallenge the popular belief that carbon monoxide alone poisonsthe road and that high-speed freeways considerably reduce carbonmonoxide pollution. They then suggest some minimum planningand procedural standards for developing a record on the environ-mental effects of a proposed freeway.

Statement

Adams, Taggart D.

Catholic University Law Review Volume 19 Issue 4 Article 6 1970 THE SUPREME COURT AND THE USES OF HISTORY. By Charles A. Miller. Cambridge, Massachusetts: The Belkap Press, 1969. Pp. viii, 234. Cloth: $6.95. Taggart D. Adams Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Taggart D. Adams, THE SUPREME COURT AND THE USES OF HISTORY. By Charles A. Miller. Cambridge, Massachusetts: The Belkap Press, 1969. Pp. viii, 234. Cloth: $6.95., 19 Cath. U. L. Rev. 556 (1970). Available at: https://scholarship.law.edu/lawreview/vol19/iss4/6 This Book Review is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. Book ReviewTHE SUPREME COURT AND THE USES OF HISTORY. By Charles A.Miller. Cambridge, Massachusetts: The Belkap Press, 1969.Pp. viii, 234. Cloth: $6.95.The unique place and special responsibilities of the Supreme Court wereunder an uncustomarily revealing light when the Senate, twice in recentmonths, chose to reject two potential Justices nominated by the President.As the most undemocratic branch of the federal government, the Judiciary,with the Supreme Court at its head, maintains a delicate position in ourConstitutional system. But, precisely because it has no recourse to apublic mandate in times of crisis, it has been bequeathed a quasi-permanentstatus of public acceptance which is accorded to neither the Congress northe President. The Supreme Court, in the word of Alexander Hamilton, hasneither purse nor sword, neither force nor will. Its powers are maintainedonly through respect for its virtue and rightness of judgment.An indispensable element of this respect is the ability to rationalizeConstitutional judgments in terms of principles readily acceptable and un-derstandable by the public. For the power to command allegiance is inthe belief that vagaries of the human spirit are controlled by principleshigher and more enduring than the collective wisdom of nine men. Clearly,the precise principles of adjudication may not always be acknowledged oreven identifiable. The Court's decisions, nevertheless, must be principled,rational, and candid. And they must have the backing of a Court capableof holding a modicum of public respect. Thus, a majority of the Senate wasprompted to insist that nominees for the High Court exhibit a degree ofintellectual and ethical quality, which is rarely required among more rep-resentative institutions in our society.As the most tangible and permanent manifestations of the work of theSupreme Court, judicial opinions must be the strongest supports of themoral suasion which it seeks to command. These opinions are the vehi-cles of rationalization for the Court's work. In a sense, they are the in-tellectual exercise required of a policy-making body which is independentfrom public participation.It is a principle of adjudication, commonly expressed in the Court'sopinions, that the use of history and historical materials provides the basisfor Constitutional interpretation. Paradoxically, as the original historicalBook Reviewmaterials grow older, this historical principle of interpretation seems to gainvitality. The uses and misuses of history are the subject of a first-rate bookby Professor Charles Miller. Appropriately titled The Supreme Court andthe Uses of History, it is the first book to my knowledge fully treatingthis often baffling area of the law.The Court's use of history has been heartily criticized by members ofboth the historical and legal disciplines. Rarely, however, has anyone cometo grips with the full complexity of issues raised by this subject. History ina constitutionally relevant sense is of two types. First, the historical factsbehind the development, drafting, and adoption of Constitutional provisionsare an essential element in ascertaining Constitutional intent. Second, his-tory is often used to illustrate the development of American society in theattempt to bring meaning to a document written almost two centuries ago.Professor Miller calls this latter type "ongoing history."Herbert Wechsler has said it is "subtle business" to appraise the valueof history in Constitutional law. Such an appraisal unavoidably thrusts tothe roots of Constitutional theory, for the uses of history involve choicesamong competing philosophies of Constitutional interpretation. ProfessorMiller deals very thoroughly with these subtleties and little of significanceescapes his meticulous eye. He has used the case histories of five SupremeCourt decisions to illustrate one or more of the potential benefits anddisappointments of history as a method of interpretation. Perhaps the mostinteresting of the five is Home Building & Loan Association v. Blaisdell.1If one single case can point out the deep contradictions inherent in theuse of history, Blaisdell is that case.In April, 1933, the Minnesota legislature adopted an act providing for thetemporary postponement of mortgage foreclosures. Less than a year later,in the depths of the great depression, the Supreme Court narrowly upheldthe validity of this statute despite the Constitutional stricture against stateactions impairing the obligations of contracts. The majority opinion inBlaisdell was reached in the face of a dissent which correctly pointed outthat it was precisely this type of state legislation which the framers of theConstitution intended to prohibit. The historical background of this provi-sion amply supported the conclusion of the minority. Chief JusticeHughes, writing for the majority, forged on uncomfortably despite the lightof the historical proof to reach his result. As Miller points out, rarely, ifever, has the Court so overtly taken liberty with the historical intent of ourFounding Fathers. Other case histories under Miller's careful scrutiny re-1. 290 U.S. 398 (1934).1970]Catholic University Law Reviewveal further theoretical and practical difficulties hidden in the use ofhistorical materials.Perhaps the most appealing parts of Miller's book are the efforts to reachsome philosophical middle ground and theoretical basis for the uses of his-tory. Conversely, these parts are also the most difficult and open to criti-cism. Yet, Miller emerges relatively unscathed and presents some valuableinsights.First, Miller points out the essential problem of Constitutional interpre-tation: the delicate balance between popular sovereignty and judicial re-view. The authority of the Court to construe and perhaps alter the mean-ing of Constitutional provisions is always circumscribed by the existence ofa far more democratic means of change-the amendatory process. Yet,the interpretive authority exists and has been accepted. Thus, the princi-ples of interpretation employed by the Court must bear the burden ofmaintaining that acceptable authority.The most deeply rooted difficulty in the use of history by the Court is theconstant confrontation between Constitutional intent and Constitutionalchange. Here Miller runs into difficulties. He is for change. Regrettablyand unnecessarily, he gives short shrift to the value of Constitutional intent.Constitutional intent, to Miller, is a roadblock to progress. Therefore, itcan, without much ado, be conveniently ignored.In a legal sense our Constitution is a statute. Undoubtedly, more perva-sive and superior than the ordinary law, it is, nevertheless, the work of arule-making body expressed in specific words and phrases. A basic andsound doctrine of statutory interpretation is that the intent of the enactingbody controls. When available and relevant, this intent provides theground rules for judicial interpreters. But, the interpretation of the found-ing document of our Union, written almost two hundred years ago, posesdifficulties for the intent theory of interpretation. This nation has changed;its people have changed; and most importantly, the great public ques-tions to be resolved by the Court are today's issues-not yesterday's.Thus, Miller is with Oliver Wendell Holmes in saying that, "the presenthas a right to govern itself so far as it can."'2 Surely this is so, but Millerconcludes further that in the final analysis "Justices of the SupremeCourt are ultimately bound only by contemporary wisdom, perhaps largelytheir own."'8  This is a broad grant of power which at its extremes negatesall value of a written Constitution as a law which is binding on all, evenJustices.2. O.W. HOLMES, Learning and Science, in COLLECTED LEGAL PAPERS 139 (1920).3. C. MILLER, THE SUPREME COURT AND THE USES OF HISTORY 200 (1969).[Vol. XIX:556Book ReviewMiller does admit that the clear intent of a Constitutional provisionrecently enacted would control its interpretation. But, he implies that this isso only because the intent and meaning are contemporary-not becauseintent itself has the power to bind. This may be progressive thinking, butit falls far short of providing the principled analysis which the Court mustprovide.Miller, regrettably, never comes to grips with the intent theory of con-struction because he fears its potential to bind the present to antiquity. Thisfailure stems from an imprecise perception of the true relevance of Con-stitutional intent. A full understanding of the intent theory must respectwhat intent is-and what it is not. Once understood, it becomes not an18th Century straight jacket, but a source of the principled and candidreasoning so necessary to permit the exercise of "contemporary wisdom."The intent of the framers is a phenomenon of the past.4 Thus, its "dis-covery" must involve some knowledge and research of historical data. Con-comitantly, use of these materials demands respect for their limitations. Ifhistory teaches us anything it is that the great bulk of the past is beyondour knowing. The most perfect knowledge gained from the bits and piecesof antiquity that are historical materials is that we will know very littleand that, imprecisely.In ascertaining the intent of a Constitutional provision one must recog-nize the consequences of both the nature of the Constitution itself and thecircumstances under which it was drafted and adopted. Most importantly,it does not denigrate the effect of Constitutional intent to find that in manycases there is simply no evidence of a relevant intent to deal with a spe-cific question. The Court found itself in this situation when, after an ex-haustive historical search, it concluded in Brown v. Board of Education5that the framers of the fourteenth amendment had simply not consideredthe question of segregated schools.Other circumstances in 1787 hinder the discovery of a relevant intent.As Pierce Butler of Georgia said:We had clashing interests to reconcile-some strong prejudices toencounter . . . view the system than as resulting from a spirit ofAccomodation to different interests, and not the most perfect one.4. In speaking of Constitutional intent one seems always to refer to "framers."Actually, the relevant intent must be found not only with the men at Philadelphia inthe summer of 1787 (framers) but also from the many members of state ratifyingconventions (ratifiers). James Madison in 1796 suggested that as it came from Phila-delphia, the Constitution was "nothing but a dead letter, until life and validity werebreathed into it by the voice of the people, speaking through the several State Con-ventions." 3 RECORDS OF THE FEDERAL CONVENTION OF 1787 374 (rev. ed. Farrand1937) [hereinafter cited as RECORDS].5. 347 U.S. 483 (1954).19701Catholic University Law ReviewImprovement was the byword, and Butler continued, "If we can securetranquility at Home and respect from abroad, they will be great pointsgain'd."6It was a pragmatic group of men that met that hot summer in Philadel-phia. Most were more concerned with making a Union than deciding ev-ery point of debate. Some questions were clearly left open for subsequentresolution. Among these was the question of whether to provide a jurytrial in certain civil cases. The failure to include language on this pointwas not, in fact, meant to abolish jury trials in these cases; it simply meantthat the varied practices in the states of Confederation made final resolu-tion of the question impossible.7 Similar open provisions concern the issu-ance of legal tender" and the interpretation of Presidential disability pro-visions which happily has never come before the Court.9 Other questionswere not precisely decided because of fear that such a decision might hinderthe eventual adoption of the full Constitution.1°Constitutional provisions may be deliberately ambiguous. Abraham Bald-win, from Georgia, stated before the House of Representatives in 1796 thatsome subjects were left a little ambiguous and uncertain." GovernorMorris, one of the principal drafters of the text, subsequently admittedthat parts of the document were purposely equivocal. 12In order to appreciate the bounds of intent we must above all look at theConstitution as a whole. Clearly, it was not designed to decide all cases.Provisions for change are inherent in its very structure. Charles Curtis hasdescribed it as "chapter headings" and indeed they are, with the contentsto be filled in with the passage of time. One need not downgrade the au-thority of intent to recognize that when soluble problems are not solved theinference is that the future must decide for itself.A last word about intent involves the use of general language to express6. 3 RECORDS 103. Similar views were expressed by Madison and Washington.3 RECORDS 136, 242.7. See comments by General Pinckney, 2 RECORDS 628 and James Wilson, 3RECORDS 101. Alexander Hamilton touched on this subject in THE FEDERALISTNo. 84. Thomas Jefferson chided the delegates from Paris, where he was ambassador,for their failure to establish, in explicit terms, a general right to a jury trial in all cases.8. See Thayer, Legal Tender, 1 HARV. L. REV. 73 (1887).9. 2 RECORDS 427.10. 3 RECORDS 363-64. Farrand has collected excerpts from opinions by Secre-tary of State Thomas Jefferson and Secretary of Treasury Alexander Hamilton on theconstitutionality of a national bank. Both opinions written to President Washingtonagree that a provision giving the federal government powers to grant corporate charterswas dropped at the Convention because inclusion in specific words would endangerthe ultimate ratification of the Convention.11. 3 RECORDS 369-70.12. 3 RECORDS 419-20. Morris refers specifically to parts of Article 1H.[Vol. XIX:556Book Reviewa more specific and narrow intent. The point can best be made by useof language not from the Constitution, but from the Declaration of Inde-pendence. In the famous Dred Scott decision' 8 Chief Justice Taney inter-preted the phrase, "all men are created equal" not to include the enslavedblack man. In the same breath, however, the beleagured Taney admittedthat if the phrase had been written in 1857, it would have embraced allmen.14Taney's tragic error was to define principle by practice. Ideals are thebest means to overcome human frailties. To equate the ideals of 1787 withthe practice of 1787 is unsupportable. Solicitor General Erwin Griswold,when he was Dean of the Harvard Law School, pointed out that, "history,like the law, has many fictions. . . . In a very real sense, the fiction becomesreal, and has a significance of its own."' 5  Abraham Lincoln had theproper answer to Taney's dilemma when he said, "The assertion that 'allmen are created equal' was of no practical use in effecting our separationfrom Great Britain; and it was placed in the Declaration, not for that, butfor future use."' 8  The old teachers' maxim 'Do as I say, not as I do' issound interpretative theory.The foregoing examples serve to erase the fear that Constitutional intentis a force of the status quo. While it may not have the instant accelerationof "contemporary wisdom" as a vehicle for Constitutional change, it is never-theless perfectly capable of moving from yesterday to tomorrow.One must remember that reason and "contemporary wisdom" alone arenot always sufficient arbiters of national policy in democracy. For betteror worse, we have not chosen to follow the ideal of Plato's Republic. Wehave given judicial review great latitude in our Constitutional system. But,the price of this freedom is strict adherence to accepted principles of judi-cial interpretation. These principles are not barriers to change but safeguardsof popular sovereignty.The force of Constitutional intent is one of those principles whose im-personal discipline serves in the final analysis to unfetter a judge and courtto be, in the words of Professor Henry M. Hart, "a voice of reason, chargedwith the creative function of discerning afresh and of articulating and de-veloping impersonal and durable principles. . . . 7 Such freedom would be13. Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).14. Id. at 410.15. S. THORNE, W. DUNHAM JR., P. KURLAND, & I. JENNINGS, THE GREAT CHARTERvii (1965).16. LINCOLN, SPEECH AT SPRINGFIELD, ILL., JUNE 26, 1857, in ABRAHAM LIN-COLN: His SPEECHES AND WRITINGS, 352, 360-61 (Basler ed. 1946).17. Hart, Foreword: The Time Chart of the Justices, 73 HARv. L. REV. 84, 99(1959).1970]Catholic University Law Reviewunthinkable without the public confidence in the final authority of thepeople.Professor Miller has chosen to work where others have generalized.Awareness of this work, however, will make it difficult to generalize withimpunity in the future. This is a thoughtful and perceptive little bookwhich offers us far more than the normal quota of insights. Miller hastreated an area of judicial practice which was badly in need of definition.In the process he has provided us with a fascinating and authoritativestudy.Oliver Wendell Holmes discussed the usefulness of history in the law asfollows:When you get the dragon out of his cave on to the plain and in thedaylight, you can count his teeth and claws, and see just what ishis strength. But to get him out is only the first step. The nextis either to kill him, or to tame him and make him a usefulanimal.' 8Thanks to Professor Miller, the "dragon" is now in the open for all to see.TAGGART D. ADAMS*18. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897).* Legislative Assistant to Senator Abraham Ribicoff; B.A., Hamilton College,1964; LL.B., Harvard, 1967.[Vol. XIX: 556

THE SUPREME COURT AND THE USES OF HISTORY. By Charles A. Miller. Cambridge, Massachusetts: The Belkap Press, 1969. Pp. viii, 234. Cloth: $6.95.

Reilly, William K.

The National Environmental Policy Act and the Federal Highway Program: Merging Administrative Traffic

Catholic University Law Review

Catholic University Law Review Volume 19 Issue 4 Article 12 1970 Subject Matter Index Catholic University Law Review Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Catholic University Law Review, Subject Matter Index, 19 Cath. U. L. Rev. (1970). Available at: https://scholarship.law.edu/lawreview/vol19/iss4/12 This Index is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. SUBJECT MATTER INDEXAADMINISTRATIVE LAWJudicial ReviewFact-finding under the JudicialReview Act --------------------- -- 219Hearing requirements --------- 217The necessity for the rule makerto be the fact-finder ------ .-- 223Regulatory AgenciesCriticism of agency perform-ance: Book Review -------- __.384ANTITRUST LAWSNewspapersCombination of business opera-tions, production facilities vio-lates Sherman Act 178Newspaper Preservation Act ---- 182Purchase by partner in "pooling"operation violates Clayton Act 178ARMY, NAVY, AND AIR FORCECourts-MartialEffect of operative civil courts -_ 355Jurisdiction to try Armed Forcespersonnel for non-service con-nected offenses 101Historical development of civilianjurisdiction ........................ _353Military jurisdiction over civilians 352Peace time jurisdiction over ci-vilians ...................... . ...- 356Retro-active effect of O'Calla-han ---------........------ .....-- - - - 108Right to habeas corpus -------..... _351,352, 355Right to jury trial ----- 356"Time of war" affecting jurisdic-tion ----------- 356, 357CIVIL RIGHTSConvicted PrisonersRehabilitation rights .................- 153Social Rights Concepts"Individual's rights" theory ------ 141"Rights" and "Privileges" - ........ 142Right to treatment ----- 152Right to welfare ------------- 151CONSTITUTIONAL LAWSee SPECIFIC SUBJECT MATTERThe Military Justice Act of 1968Command influence 510Control of the military justicesystem by lay commanding of-ficers ------------.-.-----..-.---- .... ---- -- 517Military appellate judges 500Military trial judges ------------.. 495Release pending appeal ............-509Reform of the military justicesystem ------------....---.-......-------- - 518Relief after conviction --------------- 511Right to legal counsel --------------- 505Right to object to summarycourt-martial ---------------------------- 510Trial procedures under theamended UCMJ -------------- 503ATTORNEYSAdmission to PracticeAdmission to federal practice ---- 432Admission on motion ---------. 433Bar examinations -.......-- ------....... 406Bar review courses --....----------- 410Citizenship, age, residence, char-acter requirements for bar ad-m ission ..........................-- 402Examination results ------------- ---- 417Law schools -............------------- 397Law student registration 401Law study requirements --------. 396Licensing and mobility: A com-parison with the medical pro-fession .................................-436Pre-law study requirements ------ 401Reciprocal admission --....--------- 424Student bar requirements, histor-ical background ------.....------------ 394COURTSCoroners and Medical ExaminersInquest procedures ------.............. 233Medical examiners in Massachu-setts ----------- 232Role of the coroner .................... 228Procedure--in Forma PauperisC ivil litigation ...........................- 191Due process requirements ----- 212Equal protection applications ---- 208State procedures -. ------------ 196Catholic University Law ReviewTechnical requirements ------- 193The Supreme CourtThe uses and misuses of historyin decision making: Book Re-view ..................-- - 556CRIMINAL LAW AND PROCEDUREBail Reform Act of 1966Bail for the narcotics addict ------ 40Pre-trial detention - .- ...........-27, 33Recidivism while released on bail 32HomicideIntentional destruction of unbornchild by assaulting mother asmurder - ------...................... 372"Common law" viewpoint of fe-tus murder 373DEATHSee also TORTSWrongful Death ActionsApplication of lawFederal Torts Claims ActInjured parties rights againstdead tort feasor - -................291294294EELECTIONSApportionmentLegislative reapportionment:Book Review 276FFREEDOM OF SPEECH, PRESSAND ASSEMBLYAdvertisingCommercial advertising -..-------- 261GGOVERNMENT PERSONNELArbitrationCanadian legislation --- 370Federal employees .....................- 362State employees ---------... .. 364Collective BargainingCommon law duty ---- 364Exclusive representation ..........- 364Right to bargain and contract -_ 362Sovereignty as a bar 364Discharge or Disciplinary ActionFederal employment of homo-sexuals ------- 267Fetus destruction as felony mur-der 380Preliminary Hearing-InquestRight to counsel ---.......... 234Right to cross-examination ------ 239Sentence and JudgmentRight of prisoners to rehabilita-tion 153Scientific Criminal Investigation:Book Review 126Self-incriminationInquest protections ---------------- 239Registration and taxation underthe Marihuana Tax Act 88Tax fraud investigation ---------- 540Uniform Code of Military JusticeSee ARMY, NAVY, AND AIR FORCESurvivors' rights ........................- 293DISTRICT OF COLUMBIAHome Rule LegislationConstitutional status ---------........... 251The political question dilemma __ 248Right to Join Labor UnionsGovernment employees may notbe prohibited from belongingto labor organizations --.------- 362Homosexuality not bar to fed-eral employment --------------------- 274StrikesAnti-strike legislation 367Injunctions 368Right to strike 367Statutes permitting public em-ployee strikes:Canada . 370Hawaii 372UnionsStates prohibition of membershipunconstitutional ------------ 362[Vol. XIXSubject Matter IndexLABORArbitrationExtent to which predecessor'sagreement binds successorSuccessor employers ................Collective Bargaining"Boulwarism" ............ .__312,Employers' refusal to bargain-..-----------.-- ....-------------- 320,General Electric Bargaining Pol-icy --------....--------- . ..- -.- - . - 312,Public employees right to bar-gain -.. . .PARENT AND CHILDSee also TORTSImmunity DoctrineSuits for non-willful torts per-m itted -.....---.-. -----.... ..Unborn ChildMay bring action for pre-birthinjury - -- ...................RADIO AND TELEVISIONCigarette AdvertisingCommercial advertising and theFirst Amendment117378R261SECURITIESConglomeratesSecurities problems and economicdesirability .........................- 81Investment CompaniesGrowth and problem areas ofinstitutional investment ------ 81Take-over ProceduresAccess to shareholders ------------. 172TABLES, CHARTS, AND COMPILA-TIONS (APPENDICES)Attorney General's List Organizations:Filings for Tax Exemption ------ 72Law Study Requirements for Ad-mission by Examination ---------- 442Number and dates of Bar Exam-inations -...- ...- ..........---------- 450Percent of Persons Taking BarExaminations Who Pass ---------- 453Residence Requirements for Ad-mission by Examination ___ 446Successor employer's duty to bar-gain -..------... . ------.... . . .. 10Take-it-or-leave-it as bad faith inbargaining --------- - ------ __320, 475Employers RightsMassive communication pro-gram, 8(c) immunities --------- 479"Good Faith" determinations inhard bargainingTest of "good faith" bargaining-....-----------------.-.-.-----.-- - -  - - 471, 473"Willingness to agree" standard 477StrikesPublic employee prohibitions ---- 367PATENTSApplicationsPrior history of utility --....-------- 523Problems under the present utilitystandards ---------------.----------------- 535Utility requirement ----.....----------- 522Federal Cigarette Labeling andAdvertising Act of 1965 .......The Fairness Doctrine .............Affirmative defensive techniquesAnti-fraud provision-Cash tender offersCorporate purchases, own regis-tered securities; Section 13(e)Disclosure of interests .... 76, 78,Rule lOb-6 requirements ----------.Statements by target managementThe Williams Act ----------------- 78,Subjects Most Frequently Testedon Examinations--------Years of Practice Required forAdmission on Motion .............TAXATION-FEDERALCriminal Tax Fraud InvestigationDefinition of "counsel" ...........IRS procedures -----------------...Right to counsel ---- 541,Registration and Taxation Underthe Marihuana Tax ActSelf incrimination privilege1970]Catholic University Law ReviewWaiver of constitutional protec-tio n s ........... ..................... . ....- 9 3Tax Exempt OrganizationsCongressional actions --------------- 68Exemptions for communist or-ganizations -------- 65Exemptions for educational insti-tutions ----------........--- ---------- -- -- 56Exemption for public and privatenonprofit organizations ..........- 50TORTSSee also PARENT AND CHILD, DEATHFamilial immunityExamination of the immunitydoctrine -- ---------- 113Suits between children and par-ents allowed for non-willfultorts in New York --------- .117The effect of insurance upon thedemise of the immunity doc-trin e .- -- ................................ 1 19Tort Actions--Unborn ChildrenA viable child, within his moth-er's womb is a person with aright to bring tort action -----.. 378Recognition of right to maintaincause of action for pre-birthinjuries 376Wrongful DeathAbatement from death of tort-feaso r ------..........--------- .. ... 298Abatement through death of sur-vivors ----.-.---- ........------------------- 299Conflict of laws-application oflaw .........................------ 291Damages as a property rightupon death of survivor -------- 300Decedent's estate-impairment ofearnin gs --....------- ....- . ..... 304Doctrine of collateral resources 302Effect of insurance on abatementstatutes -------- 300Joinder of claims ------------ 301Lord Campbell's Act ---------- 289Pain and suffering in wrongfuldeath -..--- .....------.. ......- - -----. 298Products liability ------------- 305Rights of injured party againstestate of deceased tortfeasor -_ 294Rights of survivors 293Statute of Limitations --------- 302Subsequent death after lingeringsurvival ------- ------.-.-.-.--.-. . 301[Vol. XIX

Subject Matter Index

Table of Cases

Grishman, Peter J.

Refining Military Jurisdiction over Civilians

McGonagle, John J., Jr.

Emergency Detention Acts: Peacetime Suspension of Civil Rights – With a Postscript on the Recent Canadian Crisis

Catholic University Law Review Volume 19 Issue 3 Article 6 1970 Books Received Catholic University Law Review Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Catholic University Law Review, Books Received, 19 Cath. U. L. Rev. 389 (1970). Available at: https://scholarship.law.edu/lawreview/vol19/iss3/6 This Index is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. Books ReceivedGENERALTHE BOSTON MASSACRE, by Hiller B. Zobel. New York: W.W. Norton & Co., 1970.Pp. xi, 372. Cloth: $8.50. Subject: The story of one of America's greathistorical encounters from its earliest beginnings through the King Street incidenton March 5, 1770, the trials of the British soldiers and John Adams' role in theirdefense. The author describes the legal strategy employed by Adams, who avoidedembarrassing the Sons of Liberty while at the same time striking an occasionalblow for the radical cause.DEFENDING BUSINESS AND WHITE COLLAR CRIMES: FEDERAL AND STATE, by F. LeeBailey and Henry B. Rothblatt. Rochester, New York: The Lawyers Co-operativePublishing Company, 1969. Pp. xxviii, 740. Cloth: $35.00. Subject: A treatisedealing with the tactical and substantive problems involved in the litigation ofbusiness and white collar crimes. Examined are tax evasion, bribery, conspiracy,corporate criminal liability, embezzlement, false advertising, monopoly and anti-trust, and securities offenses. The book will be kept current by annual pocket-partsupplements.DEMOCRACY, DISSENT, AND DISORDER: THE ISSUES AND THE LAW, by Robert F.Drinan, S.). New York: The Seabury Press, 1969. Pp. viii, 152. Cloth: $4.95.Subject: A two part (Current Dissent and Disorder-Law and Morality in aDemocracy) exploration of the basis on which law commands obedience. Theauthor contends that forceful application of the simplistic demand for "law andorder" is inadequate; rather he argues that without a growing consensus onmoral values, law enforcement cannot resolve the crises that threaten nationalexistence.TIE DEMOCRATIC POLICEMAN, by George E. Berkley. Boston: Beacon Press, 1969.Pp. x, 232. Cloth: $7.50. Subject: A study of the policeman's role in ademocracy, including police organization and administration, recruitment and edu-cation, the policeman at work, policing the police, and interactions with the pub-lic. The author examines the structures of many European police forces, andhe suggests that the American system might be improved by using certainforeign police procedures.ECONOMIC POLICY AND THE REGULATION OF CORPORATE SECURITIES, edited by HenryG. Manne. Washington, D.C.: American Enterprise Institute for Public PolicyResearch, 1969. Pp. xxiv, 385. Cloth: $8.50; Paper: $3.50. Subject: The pro-ceedings of a symposium cosponsored by the American Enterprise Institute forPublic Policy Research and The National Law Center of The George WashingtonUniversity. Areas discussed include economic values, the functioning of securitiesmarkets, imperfections in the securities market, and securities markets andcorporate behavior.ESSAYS ON THE CIVIL LAW OF OBLIGATIONS, edited by Joseph Dainow. Baton Rouge:Louisiana State University Press, 1969. Pp. xii, 313. Cloth: $10.00. Subject:The proceedings of a symposium sponsored by the Bailey Lecture Series and theInstitute of Civil Law Studies at Louisiana State University Law School. In partone the lectures deal with the development, problems and challenges of the civil lawof obligations, while in part two several commentators explain the concepts ofsubrogation, unconscionable contracts, and specific performance under the civil law.1970 EVERYMAN'S INCOME TAX, by CCH Editorial Staff. Chicago: CommerceClearing House, Inc., 1969. Pp. 80. Paper: $1.50. Subject: An aid for theaverage taxpayer covering such questions as which forms to use, when to itemizedeductions, how many deductions are allowed, and how to handle business andpersonal losses.Catholic University Law Review1970 FEDERAL TAX RETURN MANUAL, by CCH Editorial Staff. Chicago: CommerceClearing House, Inc., 1969. Pp. xii, 1350. Loose Leaf Binder: $33.50. Subject:Information on how to prepare federal income tax returns for individuals, smallbusinesses and corporations.How To USE FINANCIAL STATEMENTS: A HANDBOOK FOR LAWYERS, by Irving Kel-logg. New York: McGraw-Hill Book Co., 1969. Pp. x, 505. Cloth: $19.50.Subject: A three part (Introduction, Anatomy of the Financial Statements, Fi-nancial Statements in Law Practice) reference work showing how financialstatements are constructed, demonstrating how to use such statements to determineprofitability, providing checklists to uncover fraud, and discussing what weightshould be given to these statements.MAKE MAD THE GUILTY: THE INSANITY DEFENSE IN THE DISTRICT OF COLUMBIA, byRichard Arens. Springfield, Illinois: Charles C. Thomas, 1969. Pp. xxiv, 285.Cloth: $12.75. Subject: An analysis of the test of criminal responsibility asformulated in the case of Durham v. United States. The author discusses theDurham Rule in relation to judicial psychiatry and psychiatric justice, due processand the rights of the mentally ill, and reality and illusion in the insanity defense.Two case studies are presented to illustrate the use of the insanity defense.MINIMIZING RACISM IN JURY TRIALS: THE VOIR DIRE CONDUCTED BY CHARLES R.GARRY IN People of California v. Huey P. Newton, edited by Ann F. Ginger.Berkeley, California: National Lawyers Guild Publications, 1969. Pp. xxv, 250.Paper: Trade, $10.00; Student, $6.00. Subject: An exploration of the techniquesused by attorneys to obtain juries for the trials of Negro defendants in criminalcases."THE NADER REPORT" ON THE FEDERAL TRADE COMMISSION, by Edward F. Cox, RobertC. Fellmeth and John E. Schulz. New York: Richard W. Baron Publishing Co.,Inc., 1969. Pp. xiv, 241. Cloth: $5.95. Subject: A student task force reportcritical of the effectiveness of the Federal Trade Commission's efforts in the areaof consumer protection. This "Nader's Raiders" study contains many graphs andvarious types of documentation.RELIGION AND THE PUBLIC ORDER, edited by Donald A. Giannella. Ithaca, New York:Cornell University Press, 1969. Pp. 260. Cloth: $5.50. Subject: A compila-tion of articles which examine such issues and institutions as secularization, civildisobedence, and the military chaplaincy. This book is the fifth volume of a seriesproviding an annual review of church-state relations, and of religion, law, andsociety.THE RESPONSIBLITY OF DISSENT: THE CHURCH AND ACADEMIC FREEDOM, by John F.Hunt and Terrence R. Connelly. New York: Sheed & Ward, 1969. Pp. xvi, 224.Cloth: $6.00; Paper: $3.95. Subject: A case study of the conflict between ad-ministrators and professors of The Catholic University of America which arosewhen twenty professors subscribed to a widely publicized "Statement by CatholicTheologians" upholding the right of dissent from Pope Paul VI's encyclical HumanaeVitae, which reaffirmed the ban on contraception. Problems affecting all church-related colleges and universities are investigated, documented, and thoroughly dis-cussed by the attorneys who were counsel to the dissenting theological professorsat their appearance before the university's academic senate.THE STATES AND THE URBAN CRISIS, edited by Alan K. Campbell. Englewood Cliffs,New Jersey: Prentice-Hall, Inc., 1970. Pp. vi, 215. Cloth: $5.95; Paper: $2.45.Subject: A collection of essays that assess the failure of city, state, and federalgovernments in resolving urban problems and indicate positive directions for mak-ing effective and lasting urban reforms. The articles manifest a belief that a con-tinued "do-nothing" attitude will affect not only cities, but all sectors of society,inhibiting progress and causing more tension, strife, and frustration.[Vol. XIX:389Books ReceivedTHE STATUS OF LAW IN INTERNATIONAL SOCIETY, by Richard A. Falk. Princeton, NewJersey: Princeton University Press, 1970. Pp. xvi, 678. Cloth: $15.00. Subject:An effort to bring the outlook, methods, and concerns of the social scientist intocloser association with international law. Among the topics discussed are the law-making capacity of the UN, the extent of UN control over nonmembers, the prob-lems of assessing compliance with international law, the application of interna-tional law in domestic courts, and the regulation of business abroad. In a finalsection the author gives his views on the reform of the international legal systemby examination of critical challenges to the present system of world order andby exploring the potential for bringing alternative systems into being.THE SUPREME COURT AND THE USES OF HISTORY, by Charles A. Miller. Cambridge,Massachusetts: The Belknap Press of Harvard University Press, 1969. Pp. viii,234. Cloth: $6.95. Subject: An analysis and comment on the use of historyby the Supreme Court to decide and explain constitutional law cases. The authoremploys several case studies to illustrate the value of history in constitutionaladjudication, such as the presidential removal power, political expression, the sit-incases of 1964, and legislative reapportionment.THE TRUTH ABOUT BOULWARISM: TRYING TO Do RIGHT VOLUNTARILY, by Lemuel R.Boulware. Washington, D.C.: The Bureau of National Affairs, Inc., 1969. Pp.xi, 180. Cloth: $7.50; Paper: $2.85. Subject: A chronicle of the ideas andefforts that went into the Boulware program of labor relations at General ElectricCompany. The new approach is spelled out step-by-step, interspersed with illus-trative data from employee questionnaires, excerpts from distributed study ma-terials and discussion groups held in GE plants and offices and in plant com-munities, and reprints of company communications to employees, supervisors, andmanagers.UN PROTECTION OF CIVIL AND POLITICAL RIGHTS, by John Carey. Syracuse, NewYork: Syracuse University Press, 1970. Pp. xii, 205. Cloth: $7.50. Subject:A study of international implementation of human rights obligations. This book,Volume 8 in the Procedural Aspects of International Law Series, concentrates onthe practical aspects of existing and proposed implementation machinery-report-ing, fact-finding, and sanctioning. It reviews various techniques historically aswell as from the perspective of UN practice.W17AT YOU SHOULD KNOW ABOUT CONTRACTS, by Robert A. Farmer & Associates.New York: Arco Publishing Co., 1970. Pp. 173. Cloth: $4.95. Subject: Alayman's guide to contract law that outlines the requirements for a valid contract,explains how to interpret a contract, discusses dissolution and remedies for breachof contract, clarifies the Uniform Commercial Code, and lists the states where it isin force. There is also a glossary of legal terms and a special section of contractforms.CASEBOOKSLAW AND POVERTY: CASES AND MATERIALS, by Paul M. Dodyk, Michael L Sovern, Curtis1. Berger, William F. Young, Jr. and Monrad G. Paulsen. St. Paul, Minnesota:West Publishing Company, 1969. Pp. xxiv, 1234. Cloth: $14.50; Pamphlet:$9.00. Subject: An examination of the problems of law and policy which affectthe poor. The authors discuss income maintenance, racial discrimination in em-ployment, housing and consumer credit, and selected problems in family law. Inaddition to this text, separate chapter reprint pamphlets are available, e.g., CASESAND SELECTED PROBLEMS IN FAMILY LAW AND POVERTY, by Monrad G. Paulsen.MATERIALS ON REORGANIZATION, RECAPITALIZATION AND INSOLVENCY, by Walter J. Blumand Stanley A. Kaplan. Boston: Little, Brown and Co., 1969. Pp. xxi, 868.Cloth: $13.50. Subject: An examination of the procedures and problems involvedin corporate restructuring. The authors discuss liquidation, merger, stockholders'rights, effects of bankruptcy, insider activities during insolvency proceedings, feasi-"ble plans and corporate capital structures, and the mutability of shareholders' rightsin proceedings not connected with insolvency.1970]392 Catholic University Law Review [Vol. XIX:389SPECIAL ACKNOWLEDGEMENTTAx MANAGEMENT PORTFOLIOS. We acknowledge receiving this series published by theBureau of National Affairs, Inc., Washington, D.C.. Amortization of intangibles,interest equalization tax, corporate stock redemption and corporate separations,are but a few of the topics analyzed by authorities and practitioners. Supple-ments are sent as new developments in each subject occur. Each separate, spiralbound, paperback issue on a specific topic is separately priced in the area of$35.00, while the annual subscription rate for the entire program of approximately$500.00 provides coverage of three separate areas: U.S. Income, Foreign Income,and Estates, Gifts and Trusts. These areas are also available at separate subscrip-tion rates of $300.00, $180.00 and $110.00 respectively.

Books Received

Public Employees – The Right to Organize, Bargain, and Strike

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