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Georgetown Law Journal THE GEORGETOWN LAW JOURNAL THE APPLICABILITY OF FEDERAL LAW TO THE COMMONWEALTH OF PUERTO RICO_________ Arnold H. Leibowitz CY PRES AND THE FOURTEENTH AMENDMENT: A DISCRIMINATING LOOK AT VERY PRIVATE SCHOOLS AND NOT SO CHARITABLE TRUSTS_____________ Stuart M. Nelkin THE DRAFT AND EXHAUSTION OF ADMINISTRATIVE REMEDIES________ Robert Layton & Ralph I. Fine THE BAAN-GORDON CASES— A NEW TWIST ON SPIN-OFFS ELECTRONIC PLAGIARISM—THE DISPLAY OF COPYRIGHTED ARTICLES ON TELEVISION CORPORATE OPPORTUNITY IN THE CLOSE CORPORATION— A DIFFERENT RESULT? VOLUME 56 NUMBER 2 DECEMBER 1967 THE GEORGETOWN LAW JOURNAL VOLUME 56 DECEMBER 1967 NUMBER 2 CONTENTS ARTICLES The Applicability Of Federal Law To The Commonwealth Of Puerto Rico ________________________________________ 219 By Arnold H. Leibowitz Cy Pres And The Fourteenth Amendment: A Discriminating Look At Very Private Schools And Not So Charitable Trusts _________________________________________________ 272 By Stuart M. Nelkin The Draft And Exhaustion Of Administrative Remedies------ 315 By Robert Layton and Ralph I. Fine NOTES The Baan-Gordon Cases—A New Twist On Spin-Offs_________ 337 Electronic Plagiarism—The Display Of Copyrighted Articles On Television ________________________________ 360 Corporate Opportunity In The Close Corporation—A Different Result? _____________________________________ 381 The Georgetown Law Journal Is Published Monthly, November Through January And April Through June, By The Georgetown Law Journal Association. Printing Office Is 380 E. Lorain, Oberlin, Ohio 44074. Second-Class Postage Paid At Oberlin, Ohio. Subscriptions Are Given For the Entire Volume Only And Are Payable In Advance. Domestic: $8.50 Per Year; First Issue, $2.50; All Other Current Issues, $2.00; Back Issues, $2.25. Foreign: $9.50 Per Year; Add $0.15 Postage For Each Individual Issue Requested. Mailing Address: The Georgetown Law Journal, 506 E Street, N.W., Washington, D.C. 20001. Subscriptions Are Renewed Automatically Upon Expiration Unless The Subscriber Sends Timely Notice Of Termination. © 1967 by The Georgetown Law Journal Association 217 218 The Georgetown Law Journal RECENT DECISIONS A Balancing Test For The Commerce Power? Maryland v. Wirtz (D. Md. 1967) __________________________ 392 Bar Reinstatement Proceedings Following Reversal Of Convictions. In Re Barash (N.Y. 1967)________________ 400 BOOK REVIEW Cases on Contracts—Monroe Freedman___________________________ 407 Reviewed by Alan W. Scheflin statement of ownership, management, and circulation as required by the Act of Oct. 23, 1962, 39 U.S.C. § 4369 1. Filed: November 4, 1967 2. Title of publication: 77^ Georgetown Law Journal 3. Frequency of issue: 6 times annually (November-January; April-June) 4. Location of known office of publication: 380 E. Lorain Street, Oberlin, Ohio 44074. 5. Location of the headquarters or general business offices of the publishers: 506 E Street, N.W., Washington, D.C. 20001. 6. Publisher: The Georgetown Law Journal Association, 506 E Street, N.W., Washington, D.C. 20001. Editor: C. Christopher Brown, 506 E Street, N.W., Washington, D.C. 20001. Managing Editor: Benjamin M. Vandegrift, 506 E Street, N.W., Washington, D.C. 20001. 7. Owner: Georgetown University Law Center, 506 E Street, N.W., Washington, D.C. 20001. 8. Known bondholders, mortgagees, and other security holders owning or holding 1 percent or more of total amount of bonds, mortgages or other securities: None. 10. Circulation: Total No. copies printed: 3010 (12 mo. average). 3000 (last single issue). Paid circulation (all mail subscriptions) 1230, 1304. Free distribution: 1459, 1384. Total distribution: 2689, 2688. Office use, left over, unaccounted, spoiled after printing: 321, 312. Total: 3010, 3000. I certify that the statements made by me above are correct and complete. (Signed) C. Christopher Brown THE GEORGETOWN LAW JOURNAL VOLUME 56 DECEMBER 1967 NUMBER 2 THE APPLICABILITY OF FEDERAL LAW TO THE COMMONWEALTH OF PUERTO RICO Arnold H. Leibowitz* This article explores the complex legal relationships which have de­ veloped between Puerto Rico and the United States as a result of the creation of Commonwealth status for the Island. The author begins by examining the theories under which Commonwealth has evolved. Air. Leibowitz then investigates several areas of particular interest where Commonwealth enjoys a special relationship within the federal system. In conclusion, he notes the unique opportunity afforded by the concept of commonwealth for continued growth and development. Like other polities within the United States federal structure, the pres­ ent legal relationship of Puerto Rico to the United States is the result of the applicability of various constitutional provisions and federal laws. While determining the applicability of constitutional provisions and fed­ eral laws to a State is a relatively simple matter because of established principles and practices, making the same determination with respect to Puerto Rico is quite difficult. Precedents are few and analogies are apt to be misleading since frequently Puerto Rico is treated specially under federal legislation. This complexity arises from a variety of legal and historical events, the most important of which—the establishment of the Commonwealth of Puerto Rico in 1950 and 1952—alone has cast doubt on the applicability to Puerto Rico of certain United States constitutional provisions and various federal laws. Further, federal legislation, both existing and prospective, is not applicable to Puerto Rico where local con­ ditions would make this undesirable. The scope of this "not locally in­ applicable” exception for federal legislation, found in Section 9 of the Puerto Rican Federal Relations Act, is extremely unclear and no consis­ tent rules have been formulated by the courts for its application. In addition to the establishment of Commonwealth, the role of the United States Constitution in relation to Puerto Rico is affected by the • The author is presently Director of the Office of Technical Assistance of the United States Department of Commerce and was formerly General Counsel of the United States-Puerto Rico Commission on the Status of Puerto Rico. The views expressed in this article are not neces­ sarily those of the Department of Commerce or the Status Commission. 219 220 The Georgetown Law Journal [Vol. 56: 219 evolution of the historic doctrine of "unincorporated versus incorporated” territories and the grant of United States citizenship to the people of Puerto Rico in 1917. Supplemental to an analysis of these legal doctrines and legislative enactments and their effect on the applicability of constitutional provi­ sions and federal statutes, this essay will examine a number of fields of the law in some detail in order to understand the singular treatment fre­ quently accorded Puerto Rico under federal law. I. The Effect of the Establishment of Commonwealth Prior to the 1950-1952 legislation authorizing the establishment of the Commonwealth, Puerto Rico was unquestionably a territory of the United States. Federal powers in Puerto Rico, exercised pursuant to the territorial clause1 and the inherent powers of the national government to acquire territory,2 were extremely broad and, perhaps, unlimited,3 except where the civil rights of the inhabitants were involved.4 Under these powers the federal government possessed and exercised the right to pass legislation, take executive action to govern local affairs,5 appoint high 1"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . .” U.S. Const., art. IV, § 3. 2 American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828). 3 "Accordingly, we find congress possessing and exercising the absolute and undisputed power of governing and legislating for the territory of Orleans.” Sere v. Pitot, 10 U.S. (6 Cranch) 332, 337 (1810). "It [Congress] may make a void act of the territorial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the Territories and all departments of the territorial governments.” National Bank v. County of Yankton, 101 U.S. 129, 133 (1879). See also District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953); Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). 4 The earliest case to suggest some limitations on federal actions in the territories affecting the personal liberties of the inhabitants was Murphy v. Ramsey, 114 U.S. 15 (1885). But in ordaining government for the Territories, and the people who inhabit them, all the discretion which belongs to legislative power is vested in Congress; and that extends, beyond all controversy, to determining by law, from time to time, the form of local government in a particular Territory, and the qualification of those who shall administer it. It rests with Congress to say whether, in a given case, any of the people, resident in the Territory, shall participate in the election of its officers or the making of its laws; and it may, therefore, take from them any right of suffrage it may previously have conferred, or at any time modify it or abridge it, as it may deem expedient. The personal and civil rights of the inhabitants of the Territories are secured to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of government .... Id. at 44. The question of constitutional protections available to the inhabitants of territories
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