The Green Bag
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tion to avoid the innumerable pitfalls that are needlessly ut in his pathway. The follies which,we a low in the selection of juries, espe cially in criminal cases, are astounding. Such absurd indulgence as we show to men accused of crime is unworthy of an enlightened people." "The Serious Absurdities of the Criminal Courts." By Herbert Bruce Fuller. World's Work, v. 22, p. 14516 (June).
A number of recent instances of gross mis carriages or delays of justice are recorded. Some attention is given to faults of the in system. The writer says the two test evi s of the present administration 0 justice are sentimentality and technicality. He urges that legislation be adopted preventing reversals on urely technical grounds, that juries be re ormed, that the judicia
be taken out of
politics, and the powers 0 judges be enlarged. See Juries. Damages. See Liquidated Damages. Direct Government. “The Referendum in Operation." I, “In Switzerland," by Prof. W. Oechsli', H, "In the United States," by Presi dent A. Lawrence Lowell; lil, “In Australia,"
by Prof. Harrison Moore and Ernest Scott. Quarterly Review, v. 201, no. 427, p. 509 (Apr.).
Prof. Oechsli's review of the operation of the Swiss referendum is temperate; he finds that
it has fulfilled neither all the hopes nor all the fears entertained of it. His position is in the main, however, distinctly in its favor. The popular initiative, however, does not warrant as favorable conclusions; it is a right of indi viduals or minorities and "goes beyond mere liberty, for it enables a minority to put com pulsion on a whole people." President Lowell, eliminating from considera
tion the special referendum on lpurely local questions, examines the working 0 the general referendum in the United States. Three differ duced ent forms at different of this institution periods. The havefirst been of these, intro~ the referendum for the adoption or rejection of state constitutions and of constitutional amendments, came first.
It has not been an
empty form but has been effective, but the small ness of the vote usually cast renders it diflicult to say whether it has as a rule fairly expressed public sentiment. The institution of the con stitutional referendum is deepl rooted in the public esteem, and a survey of, Massachusetts history "leaves the impression that almost all" votes of doubtful wisdom "were either in accord with the best thought of the time or were after wards reversed." The second form of referendum to be intro duced was that designed to put a check upon particular measures or policies of the legisla ture, arising mainly in the newer states; it is to be regarded as “the product of immature conditions, for it has shown no marked tendency to spread to other parts of the country or to ex nd over new subjects." he third form of referendum is that very re cently introduced enabling a popular vote on any law not declared urgent by the legislature.
"As yet it is too early to say what the effect of the institution will be; a generation must pass before that can be determined." The writers on the situation in Australia give the greater part of their attention to recent events, and submit no general conclusions, but
they point out several defects of the system as there employed, which they apparently think can be remedied. “Popular vs. Delegated Government — A De fense of the Initiative, Referendum and Recall." By Senator Jonathan Bourne, Jr. 72 Central Law Journal 354 (May 19). “When the Constitution was finished by the convention and signed, every grant of power it contained, every bar it put up between the ple and the Government, every check and lance it im on the electorate and on the States was Hamiltonian, and, so far as possible, was constructive of an irresponsible machine. it was aggressive against state sovereignty, gainst popular sovereignty and against the spirit of democracy among the electorate of the states. Jefferson and his school were, in truth, on the defensive, and the battle resulted in a
victory for what exactly at that time was needed —-and all that the conditions then warranted — a union of states under a centralized govern ment. Conditions were not then ripe for Rous seauism, in the application of popular sovereignty on a national scale. But witness the fifteen amendments to the Constitution and observe this curious fact: Every single one of them, in its last analysis, is a recognition of the sovereign rights and powers of the people as against both the sovereignty of the state, as such, and that of the federal government. They are the people's bill of rights. “In the last one hundred and twenty years conditions have greatly changed. Electricity and steam, the telegraph, tele hone, railroad
and steamboat have established) media of in stantaneous intercommunication of ideas and rapid c0~0peration of action of the individual units of society. “centralization of government, business and the individual units of society is the inevitable result incident to the evolution of civilization. With this centralization comes increased power, and to insure the proper use of same it must be correlated with increased responsibility and accountability, which should go together. ' Due Process of Law. See Workmen's Com pensation. Estoppel. “Pleading Estoppel, II." By Gordon Stoner. 9 Michigan Law Review 576
(May) “It is the writer's belief that the careful code pleader will prefer the rule that the facts con stituting an estop 1, whether it constitutes a part of his cause 0 action or a defense, must be pleaded unless there is no opportunity to do so — understanding ‘0 portumty' to refer to the order of pleading rather than to the knowl edge or information of the party seeking to avail himself of the benefit o
the estoppe .
Though, as above suggested, there are varying
