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ticular jurisdictions.1 The duplication of decisions upon points of law already fully settled and in many instances elementary, is inordinate.? We see in consequence a resort to hasty and immature codes as a relief from uncertainty and the entanglements of a system but ill digested. The bringing of the law in the older and more important states to any perfection at all approaching that which the common law has attained, requires the same concentration upon its outline and development as that which served to develop and perfect the common law. The details of our local system must be studied as we have in the past studied the common law. We have inherited a great system of law, but it will give place to such false gods as the ill-advised code, or go the way of the spendthrift's inheritance, unless it receives, in each place where it has taken root, most minute and painstaking cultivation. For this development of the local law we need teachers who have mastered it, who know it with all its inconsistencies, all its barbarisms and back-slidings, and who can view it in the light of its historical

1 The recent case of Ortmeyer v. Elcock, 225 Ill. 342, 2 Ill. L. Rev. 45, is a striking example of this. There the court construed a remainder after a life estate to A or his heirs, as giving A an indefeasible fee simple, disregarding Ebey v. Adams, 135 Ill. 80, an excellent case to the contrary. So Kohtz v. Eldred, 208 Ill. 60, holding that "die without issue" means die without issue in the lifetime of the testator and that only, runs contra to Thomas v. Miller, 161 Ill. 60; Smith v. Kimbell, 153 Ill. 368, 377, 378; Summers v. Smith, 127 Ill. 645, 649. Among the Illinois cases the number of examples of this sort could be very greatly increased without much trouble. (See Hood V. Thorp, 228 Ill. 244.) Professor Wigmore has furnished me at a moment's notice with the following examples that have recently come to his attention: 1906, Earley v. Winn, 109 N. W. 633 (Wis.), (slander; the ruling is apparently inconsistent with Talmadge v. Baker, 1868, 22 Wis. 625, which is not cited.) 1900, People v. Casey, 124 Mich. 279, 82 N. W. 883 (on a point which had been settled by at least twelve Michigan cases between 1864 and 1900, the court cites four of these and eleven from other states). 1906, Dielman v. McDanel, 78 N. E. 591 (Ill.) (hereditary insanity; the court cites rulings from other jurisdictions but ignores the following three from its own records: 1862, Snow v. Benton, 28 Ill. 306; 1874, Meeker v. Meeker, 75 Ill. 260, 270; 1883, Upstone v. People, 109 Ill. 169). 1905, Shockley v. Tucker, 127 Ia. 456, 103 N. W. 360 (negligence of a physician; Lacy v. Kossuth Co., 1898, 106 Ia. 16, 75 N. W. 689, was not cited, though involving the same question). 1906, Murray v. Dickens, 42 So. 1031 (Ala.), (account-books; the opinion cites an encyclopedia, and ignores the recent contrary case of Snow, etc., Co. v. Loveman, 131 Ala. 221). 1903, Dovey v. Lam, 117 Ky. 19, 77 S. W. 383 (testimony of a co-defendant's wife; cases cited from Idaho and Indiana, but the two preceding ones in this state ignored).

2 The best example of this that I recall in the Illinois cases is the way the doctrine of Lawrence v. Fox, 20 N. Y. 268, has been again and again upheld. The objection that the third party could not sue upon the contract goes to the propriety of the plaintiff's suit and is not one which arises merely incidentally. Yet we have in Illinois at least thirty-two reported cases applying the rule of that case. See 3 Mich. L. Rev. 510, n. 73.

antecedents and the contemporary development of comparative systems. In view of the lack of organization in our bar, I believe that the perfection of the knowledge of the local law lies in the hands of our law schools. To their faculties must be entrusted the work of preparing the new case-books which will link us to the past, keep us in touch with what is best about us, and yet bring a great white light to bear upon the system of law developed in the given jurisdiction. To them will fall the lot of producing a local bar as expert in the law of the given jurisdiction in the subjects taught as the present Harvard Law School case-book student is in the law of that ideal jurisdiction where the Harvard Law School case-books are the only authorities and his instructors are the only judges.

In conclusion let me remind you that it is almost axiomatic in our present-day creed of life and thought that the current truths are by no means immutable. In fact, paradoxical as it may seem, the "truth" that we most universally acquiesce in just now is that there is no such thing as finality. There is nothing so sure as change. As Ibsen picturesquely put it: "Truths are by no means the wiry methuselahs some people think them. A normally constituted truth lives-let us say-as a rule, seventeen or eighteen years; at the outside twenty; seldom longer. And truths so stricken in years are always shockingly thin." Nothing within the range of my knowledge more strikingly illustrates this generalization than the history of public opinion as it has found expression in English legislation of the nineteenth century. As Professor Dicey tells us, we have first the period of "Old Toryism" led by Lord Eldon. This came to an end as a predominant force in the 1830's. Then "Benthamite Individualism" gained the ascendancy till the 70's. That in turn has given way to the "collectivist" or "socialistic" movement of the latter part of the century. In precisely the same way we may premise that the text-book system of teaching law has gone by forever. It still lingers where the light has failed to penetrate. Perhaps some survivor of its golden age, who has, as had Lord Eldon after the passage of the Reform Bill of 1833 became a certainty, lived far beyond his time, still cries out for it. But it is gone. In its place has come Langdell's great innovation. Year by year it has made converts and gained prestige until, so long ago as 1890, its complete triumph has been assured. So overwhelming has been its success, so invincible its progress, that in obedience to the law of evolution and change it is not a priori unlikely that at the very moment of its great triumph

the beginning of its decline in its present form should make its appearance.

I shall say one word further so that there may be no misunderstanding. I have had occasion to assert that the present Harvard Law School case-book is seriously defective. In making that criticism I have not attempted to soften the force of my remarks. Rather have I done my utmost, without being intemperate or unfair, to make my criticism felt. Do not assume, however, that because I believe that the time is at hand for a radical step in the evolution of the Harvard Law School case-book, I will yield to any one in the honor in which I hold those men who developed the present method of teaching law as a science and by cases, or that I cease to recognize my personal debt and the debt of the profession at large to those men and to the law school which stands as a monument to all they have done. But I am not satisfied with doing them honor. I wish their ideas more completely to predominate with the bench and bar of the various states of the Union. I believe that the step which I suggest, undertaken by those who have been able and loyal supporters of the Harvard Law School case-books and other case-books of equal merit, will spread among lawyers and judges the influence and ideas of our masters to an extent which has hitherto been impossible and which never can be equalled so long as casebooks constructed upon the present lines are used. The Harvard Law School case-books and others constructed upon similar lines already own the best law schools everywhere. In order that they may dominate the bench and bar in the same degree, I suggest that they must be revised along the lines which I propose. Albert Martin Kales.

CHICAGO.

NOTE. The HARVARD Law Review asks a comment on Professor Kales' article. As the article is written from a purely practical point of view, the comment also will be practical.

It ought to be enough to point out that the lawyers of this country are really not inefficient, and that all of them, whether educated with Harvard case-books or other case-books or treatises, have been trained according to the theory that American law is essentially one science and that the peculiarities of local decision are not to be emphasized for students. Nor has this view been adopted thoughtlessly. In 1803 appeared Tucker's Virginia Blackstone, and in 1831 Reed's Pennsylvania Blackstone; and these have not been the only elementary books on local law; but the books named, and all similar treatises, have long been superseded by works of a national scope. There are many local books on Pleading and Practice, and a few on topics in the substantive law; but the local

books are in the hands of practitioners and not of students. It is unquestionable that the successful practitioner must be acquainted with local law; but it is impossible to agree with Professor Kales' allegation of the inefficiency of persons who have failed- as almost all have failed to gain this useful knowledge

as part of their elementary course of study. Further, one must be permitted to believe that Professor Kales has overestimated the departures of local courts from the doctrines generally recognized. His specifications as to Illinois doctrines on Property do not seem to require a law school, even in Illinois, to make Illinois peculiarities the basis of the regular course of instruction. Doubtless, to some persons local peculiarities seem more numerous and more serious than to others; but an examination of various treatises and case-books, and of the local law of several states named by Professor Kales as probably having important peculiarities, makes it not unreasonable to believe that as to each branch of the law the gap between Harvard and Illinois or any other state - may be bridged, for students' purposes, by a very few pages.

Again, that gap, such as it is, seems likely to be narrowed in Illinois, as in all other jurisdictions, by the desire for uniformity and by the growing knowledge of outside decisions. Professor Kales gives in a footnote instances wherein the courts of several states, and especially of Illinois, have ignored their own former decisions and have followed the decisions of other jurisdictions. Thanks to publishers, vast encouragement is given to the desire of practical lawyers to bring to the knowledge of courts the decisions of other jurisdictions and to discuss questions in the light of general law. Indeed, Professor Kales' proofs of the scanty respect which the Illinois Supreme Court gives to its own peculiar decisions, seem to show that when a lawyer wishes to know how that court will decide in the future, which, of course, is really the problem that the practical lawyer encounters, — his attention should not be directed to peculiar Illinois cases, but should be directed to general treatises and to general collections of

cases.

Finally, to condense two practical considerations into one sentence, - the student really cannot predict where he will spend his professional life, and he knows that if he has appreciable success he will deal with business in all parts of the United States.

There are other practical reasons opposed to Professor Kales' suggestion that local law should be made the basis of the law school's regular work; but by this time it ought to be apparent that the real difficulty is the conflict of Professor Kales' suggestion with the history of law and with its probable future. Nor does Professor Kales' suggestion gain weight from his conception that, as all other persons concede the necessity of gaining acquaintance with local law, his plan differs in emphasis only. In his presentation of the educational value of local law he goes to such an extreme that he has no common ground, even by way of compromise, with those who hold the usual belief that, though local law should not be wholly ignored, the ordinary instruction in the law school should be based upon general law, and that the student's systematic work with local statutes and local decisions should be undertaken merely by way of a supplement upon completing each subject, or by way of a comprehensive review of the whole law just before or just after admission to the bar. Eugene Wambaugh.

THE RELATION OF JUDICIAL DECISIONS TO THE LAW.

JUD

UDGE-MADE law has been for centuries a fruitful topic for discussion and a subject of much controversy. Usually the expression is employed as a term of disapprobation to characterize a judicial decision or series of decisions which appears not to be properly or adequately based upon precedent, or which presents some new or unusual conception of legal rights and duties under particular circumstances. Indeed the idea quite generally prevails that such judge-made law is not properly law at all, but merely an erroneous interpretation of the existing law.

The commonly accepted view of the law, or the common law, as an abstract ideal, is that it is a complete body, existing from time immemorial, and therefore the same in every jurisdiction except in so far as it is altered by statute. This law is known or discovered by the judges. They interpret the law, and the reports of their decisions are authoritative evidence of it.

This doctrine was proclaimed by Blackstone.1 It is upheld by Professor Beale, who says in his Summary of the Conflict of Laws: 2 "Wherever, therefore, there is a political society, there must be some complete body of law, which shall cover every event there happening;" and again,3 "Law once established continues until changed by some competent legislative power." It has been adopted by the Supreme Court of the United States in the case of Swift v. Tyson, followed by Baltimore & Ohio R. R. Co. v. Baugh.5 In the former case Mr. Justice Story expresses the opinion that:

"In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not of themselves laws. They are often reexamined, reversed, and qualified by the courts themselves, whenever they are found to be either defective or ill-founded, or otherwise incorrect."

As a corollary to this doctrine it follows that judges do not properly, in the exercise of their judicial functions, make new con

11 Bl. Comm., 68. 416 Pet. (U. S.) 1.

$89.

2 § 7.
149 U. S. 368.

• P. 18.

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