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77 U. Pa. L. Rev. 879 (1928-1929)
Unconstitutional Conditions

handle is hein.journals/pnlr77 and id is 899 raw text is: May, Z929 UNCONSTITUTIONAL CONDITIONS MAURICE H. MERRILL Dictum, oft repeated, tends to crystallize into a role of law. A rule, so crystallized, is given judicial application, often without detailed consideration of its foundations or proper lim- its. A time comes when able and ingenious counsel, zealous for the cause in which they are retained, seek to extend the applica- tion of the rule far beyond the limits of the sphere within which it arose. The use of familiar phraseology may lead the court to acquiesce, seemingly at least, without adequate investigation of the basis for the new extension or of possible conflicts with other well-established lines of decision. In this manner, imper- ceptibly and without arousing attention at the time, decisions and dicta at variance with doctrines long regarded as established find place in the fabric of the law.' When this occurs, it is necessary to work out in some. fashion a reconciliation of the old and the new lines of decision, or, if this attempt fails, to determine which deserves to survive. Such a situation seems to have arisen in connection with the recent development of the doctrine of un- constitutional conditions. ORIGIN AND DEVELOPMENT The genesis and the early development of the doctrine have been dealt with adequately and in great detail elsewhere.2 Here it is necessary to give only such a summary as may be requisite to an adequate presentation of the problem to be discussed. The story begins with the efforts put forth by many states to prevent foreign corporations doing business within their boundaries from resorting to the federal courts. The orthodox American doctrine I Mr. Charles Warren has given us an excellent account of such a process in another field of constitutional law. See Warren, The New Liberty Under the Fourteenth Amendment (i926) 3p Hv. L. REV. 431, to which Fiske v. Kansas, 274 U. S. 380, 47 Sup. Ct. 655 (1927), affords an interesting sequel. See also Whitney v. California, 274 U. S. 357, 371, 47 Sup. Ct. 641, 646 (1927). 'See HENDERSON, THE PosITIoN OF FOREIGN CORPORATIONS IN AmAtIcAN CONSTITUIONAL LAW (1918) c. 8. (879)