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The Green Bag
governing everyday relations with everyday needs of ordinary men that has atoned for the manifold and conspicuous defects of trial by jury and is keeping it alive. In Germany today one of the problems of law reform is how to achieve a similar tempering of the justice administered by highly trained special ists. "In the other direction, the effect of a scientific legal system upon the courts and upon the legal profession is more subtle and far-reaching. The effect of all system is apt to be petrifaction of the subject systematized. Perfection of scientific system and exposition tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old prob lems, and to impose the ideas of one genera tion upon another "That our case law at its maturity has ac quired the sterility of a fully developed system, may be shown by abundant examples of its failure to respond to vital needs of present-day life. Its inadequacy to deal with employers' liability; the failure of the theory of 'general jurisprudence' of the Supreme Court of the United States to give us a uni form commercial law; the failure of American courts, with centuries of discussion before them, to work out a reasonable or certain law of future interests in land; the breakdown of the common law in the matter of discrimina tion by public service companies because of inability to make procedure enforce its doc trines and rules; its breakdown in the attempt to adjust water rights in our newer states, where there was opportunity for free develop ment; its inability to hold promoters to their duty and to protect the interests of those who invest in corporate enterprises against mismanagement and breach of trust; its fail ure to work out a scheme of responsibility that will hold legal entities, or those who hide behind their skirts, to their duty to the public—all these failures, and many more might be adduced, speak for themselves. But compare these failures with the great achieve ments of the youth of our case-law, with Lord Mansfield's development of a law of quasi-contracts from the fictions of the com mon counts, with Lord Mansfield's develop ment of mercantile law by judicial decision, with Kent's working out of equity for America from a handful of English decisions, with Marshall's work in giving us a living Consti tution by judicial interpretation. Now and
then, at present, we see vigorous life in re mote corners of our case law, as, for instance, in the newer decisions as to surface and under ground waters. But judicial revolt from mechanical methods to-day is more likely to take the form of 'officious kindness' and flabby equitable application of law. Our judge-made law is losing its vitality, and it is a normal phenomenon that it should do so." Mr. Pound sees the remedy only in legis lation, and calls on common-lawyers to aban don their traditional attitude toward legisla tion and to make it what it should be. Jurisprudence. "The Basis of Law," by John Mahon. American Law Review (vol. xlii, p. 872). A discussion of the two traditional atti tudes of jurists toward law: That, on the one hand, it is an absolute science; on the other, that its basis in the last resort is expediency. The former attitude tends to promote stability of legal rules, but fails to afford complete justice in individual instances; the second, to provide adequately "for individual cases and arising contingencies," but where indiscriminately adhered to, it creates a menacing instability—substituting individual opinions for the wisdom of the past. The author discusses many instances of the effect of the two views. Legal History (England). "Two Problems in Legal History," by W. C. Bolland. Law Quarterly Review (vol. xxiv, p. 392). A discussion of these two questions: How and when did the courts begin to recognize the qualifications of a Barrister of the Inn to practise before them? And why did the appel lation of Barrister entirely supersede that of Apprentice? Literature. "The Law and Lawyers of Pickwick," by John Marshall Gest. University of Pennsylvania Law Review and American Law Register (vol. lvii, p. 143). Monopolies (Anti-Trust Act and Com mon Law). "The Federal Anti-Trust Act and Minority Holdings of the Shares of Railroads by Competing Com
