Page:The Green Bag (1889–1914), Volume 24.pdf/110

 Index to Periodicals tion of reasonable customs — the existence of customs and their reasonableness being deter mined by having regard to and respect for all existing accepted customs, the principles of all civilized systems of laws, and the precedents under these systems. . . . "It seems probable that the question of limita tion of arbitral tribunals will be open for discus sion at the next Hague Conference, even if this nation should hold to the existing treaties. There seems to be a general desire among the nations that what is called 'codification of international law' shall be considered by the Conference. This will, it would seem, necessarily involve the ques tion of legal limitation of states, governments and arbitral tribunals. As a result of these dis cussions, it will be made clearer to us what ought to be our permanent policy in the matter of judi cial settlement of international disputes. The great danger to the cause of judicial settlement appears to lie in the adoption by the leading nations of an insufficiently considered policy which will subject them to legally unlimited power and will result in war rather than in peace, thus bringing judicial settlement into disrepute." "The Pending Arbitration Treaties: An Ap peal for their Ratification." By William Howard Taft, President of the United States. Century, v. 83, p. 459 (Jan.). "Recent events in China and Tripoli have been cited as evidence against the pending treaties. Both citations are, to my mind, unfor tunate. In the case of China it is urged that failure to cultivate the military spirit has been responsible, first for the loss to China of various of its provinces which, in effect, have been seized by foreign powers, and finally for the dire revolu tion from which that empire is now suffering. "The ideal for which sincere advocates of universal peace are striving is an international court of arbitration before which a weak nation may summon one more powerful when the weak er believes its rights are being violated by the more powerful. If there has been unjust spolia tion of China, such a tribunal would have dis closed the fact and would have forbidden such spoliation." "The General Arbitration Treaties." By Prof. Charles C. Hyde. North American Re view, v. 195, p. 1 (Jan.). The author, who holds the chair of interna tional law in Northwestern University, is in sympathy with the treaties, and discussing the various arguments against their ratification, he concludes that their terms should not be materi ally modified, unless with the idea of more clearly excluding purely political questions from the sphere of justiciable differences. "The Place of Force in International Rela tions." By Rear-Admiral A. T. Mahan, U. S. N. North American Review, v. 195, p. 28 (Jan.). These articles of Admiral Mahan's, though possibly laboring under the slight misconcep tion that law and force are necessarily anti thetical, are of interest for their historical re view of the international politics of the United

States, and for some sagacious observations on the function which economic and military power must continue to play in international affairs. International Law. See Conflict of Laws, International Arbitration. Interstate Commerce. "The Use and the Abuse of the Commerce Clause." By Frederick H. Cooke. 10 Michigan Law Review 93 (Dec.). "The power of legislation that has been al lowed to Congress under the commerce clause is a superfluous power of legislating on matters as to which ample power has been reserved to the states, as in case of legislation relating to (1) prohibition of transportation, (2) the con duct and liability of those engaged therein, (3) furnishing the means thereof, or authority to engage therein." See State Control. Judicial Precedent. "The Value of Pre cedent." By Judge Shackelford Miller. 46 American Law Review 857 (Nov.-Dec.). "It is not within the scope of this paper to go into the doctrine of stare decisis, which requires a court to follow its own precedent. We are con cerned only with those qualities which give value to a case as a precedent. That the law grows by means of precedents may be seen from a slight examination of any case book used in our modern law schools." Judicial Recall. "The Recall and the Poli tical Responsibility of Judges." By W. F. Dodd. 10 Michigan Law Review 79 (Dec.). "There is some solid basis for the movement for the recall of judges. We have officers exer cising large political powers without a corres ponding political responsibility. ... If state courts have abused their power to declare state laws unconstitutional on 'due process' and 'equal protection' grounds, it is possible to remedy the situation by two measures, the one involving a change in state constitutions, and the other an act of Congress. "The states may strike the 'due process of law' and the 'equal protection of the laws' clauses from their constitutions. These clauses must mean the same thing in state constitutions as in the federal Constitution, although it must be said that they are often interpreted to mean different things. . . . "If the 'due process' and 'equal protection* clauses are stricken from state constitutions, state decisions declaring state laws unconstitu tional upon these grounds must be based on the federal constitutional provisions, and it should be possible without great difficulty to obtain a prompt and uniform interpretation of these federal clauses for the whole country by an amendment to the federal Judicial Code, so as to permit review by the United States Supreme Court of state decisions holding state laws invalid on federal constitutional grounds. . . . "The suggestions made above would make conflicting interpretations impossible and pre vent delay."