Page:Harvard Law Review Volume 10.djvu/327

NOTES. 301 but that its effect would be to simplify the task of the practising lawyer to an extraordinary degree must be plain to the most sceptical. Whether or not it is possible of realization, a step in the right direction could certainly be taken by the material shortening of judicial opinions. That this, at least, is not out of the question, seems clear. That it is desirable must be patent to any one who turns from a volume of English reports of the early part of tliis century to any recent volume of State reports. " PrcKEnNG '* — Injunctions against Strikers. — Most of the public, outside of the trades unions, have a sufficient prejudice against anything that could be called "picketing" to approve without hesitation the sweep- ing injunction issued by the Supreme Court of Massachusetts in the recent case of Vegeiahn v. Gunter, 44 N. E. Rep. 1077. And at the first reading the majority opinion seems to show sufficient grounds for the injunction. The more carefully, however, the dissenting opinions, especially that of Mr. Justice Holmes, are studied, the more doubtful the question becomes. The case was one of a now common sort, where workmen on strike main- tain a patrol in front of the resisting employer's premises, with the object of intercepting other workmen who may come to take employment with him, and dissuading them from so doing. In this instance the patrol consisted of only two men, and if they were using any threats of violence, or in- ducing any breaches of existing contracts, such plainly illegal conduct was already under the injunction of the court. The question then before the Supreme Court was whether every sort of " picketing," and all at- tempts by the strikers to prevent men going into the plaintiffs employ, however peaceable the means used, should be enjoined as an unjustifiable infliction of damage to the plaintiffs business. The whole question turns, of course, on whether the infliction of the damage was justifiable. The majority of the court, without clearly separating the mere peaceable persuasion used by the defendants upon the other workmen from the in- timidation supposed to be practised, held that the defendants' acts were not justified by their ultimate motive, that of securing better wages. They do not, however, distinguish clearly the cases where rivalry of interests in trade has been held to justify the intentional infliction of serious damage to business. Why the acts of the defendants in cases like Mogul Steamship Co. v. McGregor, [1892] A. C. 25, are within allowable competition, and the acts of the defendants in this case are not, is not made to appear very distinctly. The truth is, as Mr. Justice Holmes points out in his opinion, and as he had before urged in an article in 8 Harvard Law Review, i, cover- ing the very ground of this case, that the question of what sort of com- petition is allowable, or will furnish a justification for the intentional infliction of damage to business, is a mere question of public policy, which the most thorough knowledge of the law helps judges but little to decide. Nothing could be more apposite to this case than the following; portions of the article just referred to: "The ground of decision really comes down to a proposition of policy of rather a delicate nature concern- ing the merit of a particular benefit to themselves intended by the de- fendants, and suggests a doubt whether judges with different economic sympathies might not decide such a case differently when brought face to face with the issue." As to which side the economic sympathies of the judges ought to incline towards, when they find such questions presented