Page:The Green Bag (1889–1914), Volume 25.pdf/550

This page needs to be proofread.

Index to Periodicals "The new principle appears in connection with the new Criminal Evidence Act. That act is accordingly seen to put a new pitfall in the way of innocent accused persons. Either they must incur the suspicion which attaches to an accused who dare not go into the witness box to be examined — or they must throw themselves into the witness box at the earliest moment, before they have had proper and full legal advice, and at a stage when the prosecution can take full advantage of their admissions and mistakes." See Insanity, Penology, Privileged Witnesses. Criminology. See Penology. Diplomacy. "Our Disorganized Diplomatic Service." By James Davenport Whelpley. Century, v. 87, p. 123 (Nov.). "At no time in the recent history of the State Department has the American diplomatic ser vice been in a state of such utter disorganization and ineffectiveness as at present." See Nationality. Due Process. See Taxation. Federal and State Powers. See Insurance, Interstate Commerce, Taxation. Freedom of Speech. "The Courts and Free Speech." By Stephen S. Gregory. 8 Illinois Law Review 141 (Oct.). "The intelligent student of English history will recall that the great controversy which lasted for over twenty years as to the powers of juries in criminal prosecutions for libel, when Lord Camden and Erskine, afterwards with the powerful aid of Charles James Fox, fought to a successful issue this great battle for free speech against all the judges of England, terminated in the adoption of Fox's Libel Act, declaratory in form, which secured the right of juries in such cases to pass on law and fact. Modern legisla tion in that country seems to me to have im paired this somewhat; and the rigor and strict ness of the law of libel in that jurisdiction cer tainly tend to limit free discussion. I sincerely hope these views may not obtain in this country. Free speech and a free press arc absolutely essen tial to free institutions. It is no reflection upon courts and judges to say that these rights cannot exist in all their integrity without trial by jury." General Jurisprudence. "Proceedings of the Conference on Legal and Social Philosophy." International Journal ofEthics, v. 24, p. 70 (Oct.). The Conference on Legal and Social Philosophy was organized in New York last April at a meeting held under the chairmanship of Professor Dewey of Columbia University, inquiry having shown considerable interest to exist in the subject among teachers of law and teachers of philosophy. The institution of the Conference was suggested by the action of the Association of American Law Schools in recognizing the need of a conscious philosophy of law, and by the preface which its committee drew up to the Modern Legal Philosophy Series. This first meeting, which served the purpose


of organizing the new body, was called to dis cuss "The Relation of the Law to Social Ends." It was arranged that the next meeting should be held November 28-9 to discuss the problem of "Administrative Justice." This meeting will be held at Chicago University. Abstracts of several interesting papers pre sented at the meeting last April are printed in this journal. The subjects were: "The Philoso phy of Law in America," by Roscoe Pound; "The Ethnological Approach to Law," by A. A. Goldenweiser; "Ihering's Theory of Law," by Isaac Husik; "Responsibility," by H. Rutgers Marshall; "Criteria of Social Ends," by James H. Tufts; "The Conception of Social Welfare," by Felix Adler; "Law and Progress," by George W. Kirchwey; "The Content of Social Justice," by S. N. Patten; "Our Litigious System," by E. L. Henderson; "The Social Sciences as the Basis of Legal Education," by William Draper Lewis (see 25 Green Bag 479-80); "The Process of Judicial Legislation," by M. R. Cohen (the secretary of the Conference); and "The Social Ends in the Preamble to the Constitution," by G. A. Black. We quote one extract, taken from the abstract of Mr. Henderson's paper; this is how he de scribes the drawbacks of "the extreme indi vidualism of the litigious system," weighed against certain advantages likewise enumerated: "(1) It matches the wits and the enterprise of the attorneys and so ultimately the resources of the contestants, rather than the facts for and against a case. Each party suppresses evidence against it and distorts testimony to suit its case. It fights. As in the mediaeval trial by combat, with which it is directly akin, litigation makes the decision rest upon factors irrelevant to the issue of justice. "(2) The expenses of litigation discourage those who are wronged from seeking redress, especially if their resources be slender. "(3) The lawyer, trained to the task of the advocate, is put in the attitude not of seeking justice, but rather of winning his case. Hence the legal profession develops no sense of respon sibility for such laws and such procedure as will most efficiently secure justice." [The Italics are ours.] "Courts and Legislation." By Roscoe Pound. American Political Science Review, v. 7, p. 361 (Aug.). Also 77 Central Law Journal 219 (Sept. 26). "We cannot keep before us too clearly that finding the law — if you will, judicial law-making — is one thing, and true interpretation quite another. In dealing with statutes, since from the nature of the case all causes could not be foreseen, this finding the law or judicial law making or spurious interpretation is necessary unless we would have the court decide by throw ing dice or casting lots. But in constitutional law, where the issue is simply whether the legis lative act must yield to the supreme law of the land embodied in a constitutional provision, the question can only be one of genuine inter pretation. In the first decision upon the legal tender act, indeed, and in other cases occasion ally, implied limitations upon legislative power