Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-26T18:23:36.643Z Has data issue: false hasContentIssue false
  • English
  • Français

The Search for Uniformity of Law

Published online by Cambridge University Press:  02 September 2013

J. A. C. Grant
J. A. C. Grant
Affiliation:
University of California at Los Angeles
Get access Rights & Permissions [Opens in a new window]

Extract

It has been said that the concept of “formal perfection is in itself a thing so impressive, so fascinating, so pleasing, that it tends to camouflage a defect of content and then to deceive by a kind of agreeable dazzling of the mind.” Apparently John Fiske was basking in the light of this concept when he characterized federal government as “the sublime conception of a nation in which every citizen lives under two complete and well-rounded systems of law … moving one within the other, noiselessly and without friction.” Surely, only a childlike faith in the efficacy of mere mechanics controlled by written constitutions could have closed his ears to the clatter arising even then within our American federal system. The concept of federalism may be a lofty one; its practice seems often to be on a more mundane plane.

Type
Research Article
Information
American Political Science Review , Volume 32 , Issue 6 , December 1938 , pp. 1082 - 1098
Copyright
Copyright © American Political Science Association 1938

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Keyser, C. J., Mathematical Philosophy (1922), p. 139Google Scholar.

2 The Critical Period of American History (1888), p. 301Google Scholar. Cf. Brewer, J.: “We have in this republic a dual system of government,—national and state,—each operating within the same territory and upon the same persons, and yet working without collision, because their functions are different.” South Carolina v. United States, 199 U.S. 437, 448 (1905).

3 Hylton v. United States, 3 Dallas 171 (U.S. 1796).

4 See Tiedeman, C. J., “The Income Tax Decisions as an Object Lesson in Constitutional Construction,” Annals of Amer. Acad., Vol. 6, p. 268 (1895)CrossRefGoogle Scholar.

5 Coyle v. Smith, 221 U.S. 559 (1911).

6 But see infra, p. 1091.

7 16 Peters 1.

8 The importance of this function has long been overshadowed in the public eye by the Committee's rôle in constitutional litigation, and only now is coming to receive adequate recognition. E. T. Latham terms it “the less obtrusive, but in solid fact by far the most important, function of the Privy Council appeal.” “The Law and the Commonwealth,” published as a supplementary chapter in Hancock, W. K., Survey of British Commonwealth Affairs: Vol. 1, Problems of Nationality, 1918–1936 (1937), p. 510, at p. 571Google Scholar. In Canada, this unifying force is greatly amplified by the Supreme Court of Canada, which sits as a court of final appeal from the courts of all the provinces on questions of provincial as well as of dominion law.

9 Of course there are other sources of such jurisdiction. See Jacobson, J. M., “Federal Interpretation of State Law,” Univ. of Pennsylvania Law Rev., Vol. 86, p. 335 (1938)CrossRefGoogle Scholar.

10 As restated in Burges v. Seligman, 107 U.S. 20, 33 (1882).

11 16 Peters 19. In reaching this conclusion, the Court proceeded from the doctrine that state judicial decisions are merely evidence of the law rather than statements of the law itself, to the assumption, in the words of Holmes, J., that the common law is “a transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute.” B. and W. Taxicab Co. v. B. and Y. Taxicab Co., 276 U.S. 518, 533 (1928). Lacking the unifying concept furnished the British Empire by the Crown, which might justify such a conclusion, the opinion substituted the medieval concept of the law merchant as “not the law of a single country only, but of the commercial world.” 16 Peters 19, paraphrasing Lord Mansfield's quotation from Cicero in Luke v. Lyde, 2 Burrows Rep. 882, 887 (1759). Even this explanation failed when later cases expanded the doctrine from commercial law to “general jurisprudence.”

12 Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

13 It is difficult to see why this should have been so. If judicial pronouncements of common law doctrines are only evidence of the law, can more be said of judicial constructions of statutes? A few judges attempted to establish an intermediate doctrine, ruling that the construction by a state court of last resort of a state statute which is merely declaratory of the common law does not bind federal courts. See Shumaker, W. A., “Federal Courts and the Uniform Laws,” Law Notes, Vol. 31, p. 26 (1927)Google Scholar. This effort was ended by the declaration, in Burns Mortgage Co. v. Fried, 292 U.S. 487, 495 (1934), that “there is no valid distinction in this respect between an act which alters the common law and one which codifies or declares it. … Nor is there a difference in this respect between a statute prescribing rules of commercial law and one concerned with some other subject. …”

14 For a parallel development in Canada, see Shannon, R. W., “Uniformity of Legislation,” Canadian Bar Rev., Vol. 8, p. 28 (1930)Google Scholar. Again, the Canadian situation is simplified by the fact that the Supreme Court of Canada and the Judicial Committee, as courts of final appeal from all the provincial courts, are able to enforce a uniformity of interpretation of such uniform provincial laws.

15 Sickerman, Jacob, “Construction of Clause in Uniform State Laws Providing for Uniformity of Interpretation,” Amer. Bar Assoc. Jour., Vol. 2, p. 60, at p. 61 (1916)Google Scholar. A footnote explains that the article was published at the request of the Conference and of the Committee on Uniform State Laws of the American Bar Association.

16 “The Attitude of the Courts with Reference to an Antecedent Debt as Constituting Value under the Uniform Negotiable Instruments Law,” Yale Law Jour., Vol. 23, p. 293, at p. 294 (1913)Google Scholar.

17 Graves, W. Brooke, Uniform State Action; A Possible Substitute for Centralization (1934), p. 269Google Scholar.

18 Letter from President Wickersham, George W., printed in Amer. Bar Assoc. Jour., Vol. 20, p. 335 (1934)Google Scholar.

19 Director Lewis, William Draper, “Statement Concerning Work of the American Law Institute,” Amer. Bar Assoc. Jour., Vol. 19, p. 640 (1933)Google Scholar.

20 Address of Chairman Elihu Root, printed in Amer. Bar Assoc. Jour., Vol. 9, p. 137 (1923)Google Scholar.

21 Unsigned, “American Law Institute Holds Fourteenth Annual Meeting,” Amer. Bar Assoc. Jour., Vol. 22, p. 373 (1936)Google Scholar.

22 Goodrich, Herbert C., “The Restatements Locally Annotated,” Amer. Bar Assoc. Jour., Vol. 14, p. 538, at p. 539 (1928)Google Scholar.

23 Unsigned editorial, Amer. Bar Assoc. Jour., Vol. 15, p. 233, at p. 234 (1929)Google Scholar.

24 Pound, Roscoe, “Unification of Law,” Amer. Bar Assoc. Jour., Vol. 20, p. 695, at p. 696 (1934)Google Scholar.

25 Branch, Judge O. W. of New Hampshire, in The Future of the Common Law, Harvard Tercentenary Publications (1937), p. 152Google Scholar.

26 Lewis, op. cit. (supra, note 19).

27 “Annual Report of the Director,” quoted in Amer. Bar Assoc. Jour., Vol. 24, p. 429, at p. 489 (1938)Google Scholar.

28 Pound, op. cit. (supra, note 24).

29 Lewis, , “Annual Report of the Director,” Amer. Law Institute Proceedings, Vol. 14, p. 44, at p. 52 (1937)Google Scholar.

30 Goodrich, , “Annual Report of the Adviser on Professional Relations,” Amer. Law Institute Proceedings, Vol. 13, p. 86, at p. 92Google Scholar.

31 Op. cit. (supra, note 29).

32 Amer. Law Institute Proceedings, Vol. 12, pp. 421–428 (1935)Google Scholar; Vol. 14, p. 44, at p. 52 (1937).

33 Ibid., Vol. 12, p. 63, at pp. 74–76 (1935); Vol. 13, p. 69, at p. 79 (1936).

34 Leach, W. Barton, “The Restatements as They Were in the Beginning, Are Now, and Perhaps Henceforth Shall Be,” Amer. Bar Assoc. Jour., Vol. 23, p. 517, at p. 520 (1937)Google Scholar. His characterization of these comments as “perhaps the most useful thing the Institute can produce” would seem to underestimate the truly great value of the better Restatements.

35 Art. III, sec. 2.

36 Op. cit. (supra, note 7).

37 See The Lottawanna, 21 Wallace 558 (U.S. 1875); Panama R.R. v. Johnson, 264 U.S. 376 (1924).

38 Under the doctrine of independent construction, a party, by mere change of residence, or by transfer of his rights to a person domiciled in another state, could convert that which was no claim into a valid demand, or vice versa. MoDonald v. Smalley, 1 Peters 620 (U.S. 1828); B. and W. Taxicab Co. v. B. and Y. Taxicab Co., op. cit. (supra, note 11).

39 Erie R.R. v. Tompkins, 304 U.S. 64, 72 (1938).

40 Western Law Jour., Vol. 1, p. 336Google Scholar.

41 Tenth Annual Report of the Amer. Bar Assoc. (1887), p. 332, at p. 352Google Scholar.

42 Twelfth Annual Report of the Amer. Bar Assoc. (1889), pp. 23, 29, 35Google Scholar.

43 Op. cit. (supra, note 41).

44 See Graves, W. Brooke, “Influence of Congressional Legislation on Legislation in the States,” Iowa Law Rev., Vol. 23, p. 519 (1938)Google Scholar.

45 See infra, p. 1097.

46 So long as Congress fails to exercise a given power, this type of uniformity automatically results from application of state law to the entire subject save in those few instances in which congressional silence has been held to bar state action. In the latter case, Congress generally has removed the barrier of silence by express statutory authorization of state legislation. See Biklé, H. W., “The Silence of Congress,” Harvard Law Rev., Vol. 40, p. 200 (1927)CrossRefGoogle Scholar; Grant, J. A. C., “The Scope and Nature of Concurrent Power,” Columbia Law Rev., Vol. 34, p. 995 (1934)CrossRefGoogle Scholar, and “State Power to Prohibit Interstate Commerce,” Calif. Law Rev., Vol. 26, p. 34 (1937)CrossRefGoogle Scholar. The sole exception to these general rules is the field of maritime law, where what properly may be termed a “national common law” often applies in the absence of national statutes, and where even congressional authorization may not suffice to validate state action. See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920).

The Knickerbocker Ice Co. case is an excellent example of the evil that may arise from a failure to recognize the fact that there is more than one type of uniformity, and that the type to be desired may vary from case to case. In insisting upon one national body of law to govern occupational injuries to longshoremen arising while they are on a boat, the Court was in fact demanding a diversity as between the law governing such accidents and those arising on land, including docks and even, at times, gang-planks. See Minnie v. Port Huron Terminal Co., 295 U.S. 647 (1935); Kenward v. The Admiral Peoples, 295 U.S. 649 (1935). Whereas seamen are attached to a boat, and would suffer from a diversity of law as between ports, longshoremen are attached to a port, and suffer from a diversity of law as to that port. Hence the decision, in the name of uniformity, prohibited the type of uniformity most to be desired.

47 The Brig Wilson v. United States, 30 Fed. Cas. No. 17, 846 (C.C., D. Va., 1820).

48 For other illustrations, see the articles cited supra, note 46.

49 Ex parte Siebold, 100 U.S. 371 (1879).

50 Ex parte Clarke, 100 U.S. 399 (1879).

51 Ibid., at pp. 404, 421–422.

52 100 U.S. 257 (1879).

53 Ibid., at pp. 271–272.

54 The Federalist (Lodge, ed., 1888), No. 82, p. 514Google Scholar.

55 Weeks v. United States, 232 U.S. 383 (1914).

56 United States v. Lanza, 260 U.S. 377 (1922). See Grant, J. A. C., “The Lanza Rule of Successive Prosecutions,” Columbia Law Rev., Vol. 32, p. 1309 (1932)CrossRefGoogle Scholar, and “The Bill of Rights and Criminal Law Enforcement,” Annals of Amer. Acad., Vol. 175, p. 205 (1934)CrossRefGoogle Scholar.

57 United States v. Murdock, 284 U.S. 140 (1931). See Grant, J. A. C., “Immunity from Compulsory Self-Incrimination in a Federal System of Government,” Temple Law Quar., Vol. 9, p. 57 (1934)Google Scholar.

58 United States v. Smith, 51 F. (2d) 803 (1931), sustained in 58 F. (2d) 735 (C.C.A. 5th, 1932). The Supreme Court refused certiorari. 287 U.S. 631 (1932).

59 For other illustrations, see Chamberlain, J. P., “Uniformity of Regulatory Laws Through Federal Models,” Amer. Bar Assoc. Jour., Vol. 9, p. 382 (1923)Google Scholar, and the article by Graves cited supra, note 44.

60 No effort is made to collect them here. See Kauper, P. A., “The Validity of State Recovery Acts Adopting Federal Codes,” Michigan Law Rev., Vol. 33, p. 597 (1935)CrossRefGoogle Scholar; Unsigned note, “State Legislation in Support of the NIRA,” Columbia Law Rev., Vol. 34, p. 1077 (1934)CrossRefGoogle Scholar. For the recent cases, see this Review, Vol. 30, pp. 693–695; Vol. 31, pp. 665–667; Vol. 32, pp. 679–680.

61 Smithberger v. Banning, 129 Nebr. 651, 661–662 (1935).

62 In re Lasswell, 1 Cal. App. (2d) 183, 203 (1934).

63 In re Burke, 190 Cal. 326, 328 (1923); Brock v. Superior Court, 9 Cal. (2d) 291, 297 (1937).

64 Beeland Whse. Co. v. Kaufman, 234 Ala. 249, 260 (1937), sustaining the state unemployment compensation law. In sustaining the same act, certain remarks of counsel prompted the federal Supreme Court to comment: “The United States and the State of Alabama are not alien governments.” Carmichael v. Southern Coal and Coke Co., 301 U.S. 495, 526 (1937).

65 Darweger v. Staats, 267 N.Y. 290, 310–311 (1935).

66 Graves, W. Brooke, Uniform State Action (1934), p. 303Google Scholar.

Submit a response

Comments

No Comments have been published for this article.