Review

Author(s): Edgar Bodenheimer

Review by: Edgar Bodenheimer
Source: Columbia Law Review, Vol. 64, No. 8 (Dec., 1964), pp. 1563-1569
Published by: Columbia Law Review Association, Inc.
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 1964] BOOKS 1563

volume differs significantly from its paper-backed predecessors in its more

detailed coverage of problems of corporate practice generally. Thus, there

is a greatly expanded section titled "Post-Organization 'Housekeeping,'" and

useful new material on the form and transfer of share certificates-based on

the applicable provisions of the Uniform Commercial Code, in the drafting of

which Mr. Israels participated.

It is ironical that the need for such a book should now be greater than

ever.

ALFRED HILL

Professor of Law, Columbia University

ESSAYS ON JURISPRUDENCE FROM THE COLUMBIA LAW REVIEW.

New York and London: Columbia University Press, 1963. Pp. xii, 414. $8.50.

The mass of articles that have piled up in the law reviews of the United

States during the last sixty or seventy years has reached such an immense

size that a proper utilization of the total national product for purposes of

research and teaching becomes increasingly difficult. While it is true that

through the use of the Index to Legal Periodicals a researcher can usually

obtain a fairly complete list of law review articles bearing on the subject of

his interest, often the list compiled by him will turn out to be unmanageably

long. It may cost the researcher an inordinate and disproportionate amount

of time to read all of the pertinent materials and separate the wheat from

the chaff. One can rejoice under these circumstances when from time to time

the editors of law reviews or other charitably minded persons facilitate

the task of legal writers by providing selections of articles by a particular

author or in a particular field-articles which by common consent represent

contributions of lasting value. Such a volume may have the further merit of

saving from oblivion important pieces of research or reflection that might

otherwise have become buried in the graveyard of published and forgotten

materials.

This type of service to the legal profession was performed by the

Editors of the Columbia Law Review with the publication of selected essays

on jurisprudence which had appeared in their review over a period of forty

years. This volume is dedicated to the memory of Karl N. Llewellyn, who

for many years taught jurisprudence at the Columbia Law School, and who

made a deep impact on the jurisprudential thinking of many American

lawyers, professors and students. The book contains sixteen articles by noted

legal scholars and judges, a book review symposium, and a foreword by Justice

William 0. Douglas. It is divided into three parts, which will be taken up

separately in this review.

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 1564 COLUMBIA LAW REVIEW [Vol.64

Part I is entitled "The Nature of the Judicial Process" and begins with

an essay on "Case Law and Stare Decisis" by Max Radin.' The essay is in

part a review of a 1933 book on the American system of precedent written

by Karl Llewellyn and published in the German language.2 It also contains

some general observations on case law in the United States and an analysis,

from a historical perspective, of the leading cases on manufacturer's liability.

Radini assumes that the practice of following previous decisions places the

common-law system in striking contrast to the judicial method prevailing in

the countries of the civil-law orbit. However, this assumption is not true

today and was not true when Radin wrote his article. Although the courts in

civil-law jurisdictions are not bound de jure to follow precedents, adherence

to precedent is customary in most cases as a de facto practice, and deviation

from a former authoritative decision on a point in issue occurs only when a

fairly strong reason calls for the departure. The civil-law attitude is thus not

very much different from the flexible approach to stare decisis taken in the

United States, though it is inconsistent with the rigid British view.

Another point on which I dissent from Radin is his insistence that lay-

men have usually reproached lawyers for following the lead of earlier de-

cisions.3 My own experience has been that laymen are very much concerned

about stability in law and are, on the whole, more prone to criticize courts

(sometimes unjustifiably) for reformatory zeal than for adherence to prece-

dent. Radin's interpretation of the layman's reaction was perhaps to some

extent influenced by his own conviction-which can be gleaned from the

whole tenor of his argument-that the "wilderness of single instances"4 is a

salutary attribute of the legal order, and that stare decisis performs no really

useful function in a system of adjudication.

Justice William 0. Douglas, in his essay on "Stare Decisis,"5 is more

willing than Radin to concede that a doctrine of precedent not conceived as

an absolute can play a constructive role in a legal system. He maintains,

however, that stare decisis should be afforded very limited application in the

field of constitutional law.6 This view possesses a great deal of persuasive

force. It is highly important to keep constitutional law, which is concerned

with fundamental problems of statecraft, in harmony with the dynamic flow

of the social order, particularly since a correction of outdated constitutional

decisions by means of legislative enactment is not possible. Nevertheless,

the argument for fluidity should not be carried to extremes. It cannot be

denied that the authority and prestige of the Supreme Court (on which com-

1. Case Law and Stare Decisis: Co?cerning Priijudizienrecht in Amerika, p. 3, re-

printed from 33 COLUM. L. REV. 199 (1933).

2. PRAJUDIZIENRECHT UND RECHTSPRECHUNG IN AMERIKA (1933).

3. P. 4.

4. P. 8.

5. P. 18, reprinted from 49 COLUM. L. REV. 735 (1949).

6. P. 19.

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 1964] BOOKS 1565

pliance with its decisions largely depends) has not in all respects been

strengthened by the recent spate of overruling decisions-though some of

them were probably necessary or at least highly desirable. One serious

problem that is created by overruling pronouncements which affect large

numbers of people, like the recent cases of Mapp v. Ohio7 and Gideon v. Wain-

wright,8 is whether prospective or retroactive force should be attributed to

them. The latter course may have an unsettling effect when it results in the

reopening of past cases on a large scale. In the limitation of a newly announced

rule to future cases, on the other hand, the party who has prevailed upon the

court to reverse its former position is deprived of the fruits of his efforts. An

intermediate and differentiating position often poses serious issues of equal

protection of the laws.

The article by Justice Felix Frankfurter entitled "Some Reflections on

the Reading of Statutes"9 deals with matters of crucial importance to statu-

tory interpretation, a subject that has assumed an ever-growing importance

in our time. The author justly criticizes the unduly narrow British rule that

bars the judge from utilizing preparatory legislative materials-for example,

committee reports-as an aid to statutory construction.10 He expresses the

view, on the other hand, that the judge is not entitled to restrict (except per-

haps to avoid patent absurdity) or enlarge statutory meaning.1" However,

there would seem to be a great deal of merit in permitting the judge to deviate

from the wording of statutes if he is convinced that these exceptions are im-

perative on grounds of justice and in accordance with the presumed intent

of the framers or the purpose of the enactment. It may also be desirable de

lege ferenda to extend by analogy the application of a statute which contains a

general principle capable of expansion, provided that a legislative intent to

confine the statute to the specifically enumerated instances of its application

cannot be discerned.

Following the brief evaluation of "Chief Justice Stone's Conception of

the Judicial Function" by the late Judge Learned Hand,12 Lord Evershed

offers a very informative appraisal of the "Judicial Process in Twentieth Cen-

tury England."13 Two features of this account will be of special interest to

American readers. One is the author's comment on the beneficial effect in

terms of uniformity and coherence that the virtual passing of the jury from

the scene of civil litigation has produced on English law.14 The second is his

pointed criticismn of the literalness with which English judges interpret

7. 367 U.S. 643 (1961).

8. 372 U.S. 335 (1963).

9. P. 43, reprinted from 47 COLUM. L. REV. 527 (1947).

10. P. 57; see Viscountess Rhondda's claim, [1922] 2 A.C. 339, 383; Millar v. Tay-

lOr, 4 Burr. 2303, 2332, 98 Eng. Rep. 201, 217 (K.B. 1769).

11. P. 59.

12. P. 64, reprinted from 46 COLUM. L. REV. 696 (1946).

13. P. 69, reprinted from 61 COLUM. L. REV. 761 (1961).

14. Pp. 76-79.

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 1566 COLUMBIA LAW REVIEW [Vol. 64

statutes.15 Lord Evershed demonstrates that this approach has led Parliament

to become more and more specific in the framing of legislation-a practice

which has in turn led to the vicious circle of an even more literal, and finally

self-defeating technique of judicial construction. It might not be inappropriate

to remark that Lord Evershed's call for a breath of fresh air in this stuffy

area of English law could be heeded with wholesome results by several

American courts.

The last article in the first part is by Wolfgang Friedmann on "Legal

Philosophy and Judicial Lawmaking."'16 Friedmann maintains that judges

have a right to legislate and he lays down certain guidelines which he deems

helpful in discharging this task. He also makes some pertinent observations

on certain inherent limitations on judicial creativity, but this aspect of the

problem might profitably have been developed by him more fully and clearly.

Part II of the compilation is headed "The Growth of the Law" and

opens with an article by Chief Justice Harlan F. Stone on "Some Aspects

of the Problem of Law Simplification."'7 Stone attempts to grapple with a

problem of vital importance for the future evolution of American law. In view

of the frightening proliferation of precedents, proceeding at an ever-increasing

pace, can the common-law system be allowed henceforth to develop solely

through the medium of reported decisions? Stone concludes that the creation

of legal rules in an ad hoc process of adjudication is unsystematic and un-

scientific, and that it is imperative to find a better method for the fashioning

of law.18 The article, written in 1923, culminates in a plea for the promulga-

tion of a restatement of the law-partly declaratory of existing law and partly

innovational-prepared in a systematic manner by a body of experts.19 Stone

did not wish the proposed restatement to become the basis for future codifica-

tion, but expressed the hope that it would acquire sufficient authority to

provide a guide to judicial practice and pave the way for the attainment of

greater consistency and uniformity in the law.

The Restatement of Law issued by the American Law Institute was a

response to this and similar proposals. The question must be raised, however,

whether the Restatement, in spite of its high quality and its undoubted suc-

cesses, has been able to accomplish the great benefits that Chief Justice Stone

confidently expected. Today, the alternative of greater federalization of private

law is not being actively considered. Therefore, it might well be argued that

the adoption of uniform laws by state legislatures has a better chance of

achieving Stone's objectives than a private restatement. Certainly such

statutes have already produced marked improvement in the law.

15. Pp. 74, 95-99.

16. P. 101, reprinted from 61 COLUM. L. REV. 821 (1961).

17. P. 129, reprinted from 23 COLUM. L. REV. 319 (1923).

18. P. 131.

19. Pp. 142-47.

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 1964] BOOKS 1567

Karl Llewellyn's article "A Realistic Jurisprudence-The Next Step, "20

will always be regarded as a trail-blazing manifesto of the essential creed of

American legal realism in its more moderate form. It destroyed many icons,

cleared away several myths that had obscured a true understanding of the

judicial process, and thus produced a number of salutary effects. But the

essay was also time-bound in its reliance on a behavioristic psychology that

can no longer claim the authority it once commanded. Above all, it both

overestimated the empirical and underrated the normative element in law-

an imbalance that was to some extent corrected by Llewellyn in his later

writings. Since I believe with Max Rheinstein that American legal realism

has run its course as a school of theoretical thought about the nature of law,21

I am inclined to view many parts of Llewellyn's article as a historically con-

ditioned and well-aimed counterthrust against the exaggerations of a mecha-

nistic and conceptualistic jurisprudence of the past. But these limitations do

not detract from the value of the essay, which contains many brilliant, re-

freshing, and permanently valid thoughts.

One of the healthy by-products of realistic legal thinking, for which

Llewellyn along with others was responsible, has been an increased emphasis

on the necessity of factual research. Fact research is a functional method that

relates law to the social and economic data underlying its creation and de-

velopment for the purpose of throwing light on the meaning, ends and effects

of legal rules and institutions. Arthur Nussbaum was a pioneer of this ap-

proach in Germany and later in the United States, and his article on the

subject is highly informative and suggestive.22

Roscoe Pound's comprehensive article on "Justice According to Law,"23

written fifty years ago, has since become a classic of jurisprudential literature

that deserves frequent and thorough reading. It deals with two antagonistic

ideas in the administration of justice-the technical notion and the discre-

tionary element-and shows their respective predominance as well as their

interplay in various epochs of legal history. Pound convincingly demonstrates

that though the course of the law has shown a movement away from discre-

tionary justice toward the working out of a scientific system of rules, tem-

porary or partial reversions to justice without technical law may become

necessary as a means of liberalizing an overrigid body of norms or solving

problems which do not lend themselves to treatmenlt by fixed legal yardsticks.

Following Pound's article is an account of the historical and evolutionary

theories of law by Edwin Patterson24 who in a lucid fashion explains and

20. P. 149, reprinted from 30 COLUM. L. REV. 431 (1930).

21. See Rheinstein, Book Review, 11 AM. J. COMP. L. 642 (1962).

22. Fact Research in Law, p. 185, reprinted from 40 COLUM. L. REv. 189 (1940).

23. P. 217, reprinted from 13 COLUM. L. REV. 696 (1913), and 14 id. 1, 103 (1914).

24. Historical and Evolutionary Theories of Law, p. 281, reprinted from 51 COLUM.

L. REV. 683 (1951).

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 1568 COLUMBIA LAW REVIEW [Vol. 64

evaluates the contributions made by such thinkers as Savigny, Maine,

Spencer and Hegel. The essay also contains illuminating comments on the

Field-Carter controversy concerning the desirability of codification in the

United States.25

The essays in Part III, subsumed under the not fully descriptive title

"The Paradoxes of Legal Science," are relatively short and, except for the

last one, will be dealt with in a summary fashion. The piece on "Law and

Literature" by Justice Cardozo,26 who analyzes the various styles used in

judicial opinions, is not one of the truly outstanding contributions from

the pen of that celebrated jurist, but its refined humor and charm of presenta-

tion will delight the reader. Julius Cohen writes about "The Value of Value

Symbols in Law"27 and argues that conceptual constructs and signposts used

in legal argument and judicial reasoning may (like emotional slogans em-

ployed in the political process) become tyrants instead of servants and

must therefore be kept under tight control. Huntingdon Cairns concerns him-

self with the challenging question whether jurisprudence ought to enter the

domain of normative valuation and reaches the conclusion that this may be

possible and desirable as an ultimate, though perhaps not as an immediate,

objective.28 His article is followed by a book review symposium29 on Jerome

Frank's Law and the Modern Mind30 with Karl Llewellyn, Mortimer Adler,

aind Walter Wheeler Cook as participanits, and a brief article by William

Underhill Moore on the "Rational Basis of Legal Institutions"31 in which

legal institutions are defined primarily in terms of repetitive human behavior.

The final essay is by Harry Willmer Jones, the present holder of the

Cardozo chair of jurisprudence at Columbia Law School, and is named "The

Rule of Law and the Welfare State."32 The article endeavors to refute-in

this reviewer's opinion, successfully-the thesis of the economist Hayek that

the reign of law is incompatible with the modern welfare state,33 in which

direct services of a social character are furnished by the governmenlt and in

which government actively intervenes in the economic life. Jones points out

that one of the chief aims of the rule of law is the protection of the individual

against arbitrary encroachments of state power, and that this aim does not

stand in opposition to the objectives of modern social and economic legislation.

One important argument against the view of Hayek, briefly mentioned by

25. Pp. 295-98.

26. P. 314, reprinted from 39 COLUM. L. REV. 119 (1939).

27. P. 332, reprinted from 52 COLUM. L. REV. 892 (1952).

28. The Valuation of Legal Science, -p. 339, reprinted from 40 COLUM. L. REV. 1

(1940).

29. Law and the Modern Mind-Symposium, p. 354, reprinted from 31 COLUM. L.

REv. 82 (193 1).

30. FRANK, LAW AND THE MODERN MIND (1930).

31. P. 389, reprinted from 23 COLUM. L. REV. 609 (1923).

32. P. 400, reprinted from 58 COLUM. L. REV. 143 (1958).

33. HAYEK, THE ROAD TO SERFDOM (1956).

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 1964] BOOKS 1569

Jones but which might have been developed further, is the consideration that

the rule of law was not as perfectly effectuated in laissez-faire society as Hayek

seems to assume. Broad areas of private power (such as hiring practices, em-

ployment terms, dismissal of employees) were unaffected by the law, and ar-

bitrary and discriminatory private policies often prevailed unchecked. We

have learned the lesson today that the danger of governmental oppression is

not the only one that must be met in establishing the rule of law.

The foregoing comments have been no more than a collection of random

thoughts that have occurred to the reviewer in perusing this volume of essays.

Much more could be said about the multifarious and diversified ideas pro-

pounded. The Editors of the Columbia Law Review deserve much praise for

their undertaking. It might be mentioned in conclusion that an additional

feature of the book enhancing its usefulness consists of the inclusion of short

biographies of the authors of the essays.

EDGAR BODENHEIMER

Professor of Law, University of Utah

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