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THE GREEN BAG
CORPORATIONS (See Constitutional Law) JURISPRUDENCE (Analysis of Law) A. A. MITCHELL contributes to the Jurid ical Review for March (V. xvii, p. 30) a crit icism of Holland's division of law into "public" and "private" which makes the state in the former the possessor of a right correlative to the duty of the individual, which right the state itself enforces. "We think that there is no department of law which answers to Professor Holland's de scription of public law as a law where the same person, the state, is both party and judge; and, further, that Professor Holland's three branches of public law can be without difficulty placed in the corpus juris on other principles." In the modern developed state the legal person who confronts the private in dividual in so-called public law is in no case a true legal sovereign, but in every case a person as fully subject to law as the private individual himself. Or, looked at from the other end, judges and Courts of Law are not identified with the state as it appears in suits before them, but are, on the contrary, set by the law as arbiters between the state and private persons. Instead of a violation of a right in the state, a crime is simply an act which the legislator, in his wisdom, regards as objectionable and thinks fit to prohibit, that is, to make the perpetration of it the occasion of the infliction of something positively or negatively disagreeable to the perpetrator." The author suggests as a demarkation of the. whole field of law, the distinction of absolute and relative duties, " absolute duties being such as are not only, in common with all legal duties, commanded and en forced by the state, but enforced by the state at the state's own instance, not at that of a private person. The breach of an absolute duty is a crime, and we think that the law of absolute duties or crimes should be made the first great branch of law. From it we pass to the more complex and difficult, as well as more extensive, branch of relative duties or rights, a relative duty being a duty to which corresponds a right, defined by Professor Hol land as a power in one person to control the actions of another person with the assistance of the state."
LITERATURE OF THE LAW THOSE who enjoy the shafts that the unlegal have ever driven at our profession, will find an interesting collection of such quotations gathered by A. E. Wilkinson in an address before the Texas Bar Association entitled "Law and Literature" which appears in the March American Law Review (V.xxxix, p. 204).
NEGLIGENCE (Assumption of Risks) THE English cases on assumption of risks are analyzed in the March Juridical Review (V. xvii, p. 43) by N. G. L. Child under the title "Volenti Non Fit Injuria." "The application of the principle involved in the maxim presents no difficulties in the class of cases where a man needlessly exposes himself to a risk, and places himself in a posi tion where there is no duty on the part of an other to protect him from the risk." Where the defendant owed a duty of care "the measure of this duty varies greatly. Though the maxim says volenti, not scienti, yet mere knowledge on the part of the plaintiff of the danger causing the injury, if under such cir cumstances as to lead necessarily to the con clusion that the whole risk was voluntarily incurred, would disentitle him from bringing an action." This was formerly deemed a question for the court, but the tendency now is to leave it to the jury. "In cases in which there is a qualified duty to take care — cases, e.g., between master and servant, and cases of the invitation class — the question which most often arises is, not whether the plaintiff voluntarily and rashly exposed himself to injury, but whether he agreed that if injury should befall him the risk was to be his and not the other party's, and unless the defendant can get an affirma tive answer to such a question the plaintiff will not be held disentitled to recover. There are, however, cases where the duty on the defendant is of a higher nature, where the plaintiff has a right to expect the place where he is to be free from danger. If the defend ant is under a statutory duty to fence ma chinery, and omits this duty, no question of volenti non fit injuria arises. "A person never is volens that he should be injured by negligence," but where a person is
