Page:The Green Bag (1889–1914), Volume 19.pdf/139

 THE GREEN BAG sion wrong on principle is, like a statute wrong on principle, nevertheless law for him and re mains law until overruled, exactly as the stat ute remains law until repealed. He finds the federal courts inconsistent in saying they will accept the state decisions in certain matters, notably "settled" rules as to land. "Why select from the vast mass of titles, and rights, rights and titles to things having a permanent locality, to land? Are we to under stand that a state's common law concerning the sale, devise, inheritance of land, is to be respected, and that concerning the sale or be quest of cotton, or wheat, or a horse, or a piano, not? Is a state common law concerning per sons, the status of children and married women, to be held not ' law ' in the congressional sense?" Similar comment is made on the other cases where state rules are recognized. "If the courts of a state had shown a pur pose to enforce a given principle merely be cause they supposed it, mistakenly, to be the principle adopted in England, or in a majority of the common law jurisdictions, and a federal court sitting in it, should believe that the state court had propounded it under this mistake, there might be a justification for its rejection of the erroneous inference. The state court would really have adopted two propositions, (a) that which is law in England upon this point shall be law in this state, (6) this is the law in England. The federal court would not be without warrant for its position that the first proposition was the one that was really enacted into the law by the court, and might then, discovering the error in the second pro position, rectify it. But it is on no such ground that it has assumed the right to re pudiate the law as declared by the state courts." The article, however, accepts the fact that this practice is a settled one and makes this interesting prophecy. "The constitutional lawyer who surveys the Constitution and the decisions of the court dis covers a vast as yet unused power in Congress and the federal courts whose existence is not generally suspected. The ratio of the litiga tion that is drawn to the federal courts to the entire mass of litigation is steadily increasing and is susceptible of indefinite augmentation.

Over all this litigation Congress has unchal lengeable power. It may prescribe the rules of procedure, the rules of evidence, and the rules which determine the rights and duties of liti gants. It can, if it chooses, build up a real estate law, an inheritance law, a law of con tracts, a law of torts. It has chosen thus far in common law matters for the most part to adopt state legislation. But, in some cases, it has overridden state legislation. There can be no doubt that it may, if it will, override it alto gether. In equity proceedings the law of the state is more fully ignored. "Congress, thus far, has only very partially invaded the sphere of the state law. In thus refraining, it has given scope for the initiative of the federal courts. They are building up a body of law to be administered within the states, which is a real federal common law, and which is capable of indefinite expansion at the cost of the peculiar law of the respective states. Thus far they have repudiated im portant elements of the states' law of torts, of contracts, of evidence. There is no power capable of imposing limits on the growth of this indirect legislation, save their own ' com ity and good sense.' This process which will prove to be secular, is constant and silent and is but a part of a vast and resistless movement towards the reduction of the importance of the States and the greater coarctation of their powers. The reduced importance of the States, however, will not, we may hope, be wholly without compensation." LAW MERCHANT. " The ' Law Merchant' of A. D., 1906," by W. N. Ponton, Canadian Law Times (V. xxvi, p. 783). LEGAL ETHICS. " The Lawyers' Methods of Advertising," by Mitchell D. Follansbee, The Brief (V. vi, p. 276). LIMITATIONS. " When is an Action Be gun so as to Stop the Running of the Statute of Limitations? " by H. Claude Pobst, Virginia Law Register (V. xii, p. 675). MONOPOLIES. "The Legal Aspect of Monopoly," by Herbert Pope, in the January Harvard Law Review (V. xx, p. 167), considers these questions: "Does the law object to size, control of the market in itself, or only to particular methods