Page:The Green Bag (1889–1914), Volume 21.pdf/427

 Review of Periodicals Articles on Topics of Legal Science and Related Subjects Bankruptcy. "Bankruptcy Law and the Peaceable Settlements of Business Failures." By Harold Remington. 18 Yale Law Journal 590 (June). "The Bankruptcy Law has been in quiet but efficient operation all the time in the midst of the commercial failures of the last year, staying the hand of the creditor from the effort to gain advantage over his fellows and bringing about a rational and business like settlement of affairs between the debtor and his creditors; yet, during all that time the courts have not been called upon materially to increase their operation on this account, so certain and well recognized are the prohibi tions of the Bankruptcy Law. "The true place of National Bankruptcy Law in the community has been little under stood by the people at large; although it is true that the different associations of business men of the country have been most widely awake and keenly appreciative of its influence and operation, through whom a more ade quate conception of its benefits to the com mercial world is gradually being developed." Bill of Bights. "The Anthracite Coal In dustry, and the Business Affected with a Public Interest." By Prof. Andrew Alexander Bruce. 7 Michigan Law Review 627 (June). "To what extent does American indi vidualism extend? Is there any legal founda tion for the statement so often made by the business man, that his business is his own and he has the right to run it as he pleases? Is the right of the laboring man to strike a right which is inalienable? Prior to the year 1892 there was in America but one answer to these questions. It was to be found in the case of Godcharles v. Wigeman (113 Pa. St. 431, 6 Atl. 354; decided in 1886) and in a long line of decisions which followed its rea soning. ... It was not until 1892 and 1899 respectively, that the supreme courts of West Virginia and Tennessee made a complete change of front and took a radically different position, and not until 1901 that the Supreme Court of the United States sustained them in so doing. ( Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S. W. 955; Dayton Coal & Iron Co. v. Barton, 103 Tenn. 604, 53 S. W. 970; Knoxville Iron Co. v. Harbison, 183 U. S., 13, 22 Sup. Ct. 1; Dayton Coal Co. v. Barton, 183 U. S. 23, 22 Sup. Ct. 5.). . . "The matters which were in dispute in the coal fields of West Virginia and Tennessee were, to all intents and purposes, the same matters as those which were in dispute in the recent anthracite coal strike in Pennsylvania, and in the strike which is now threatened. They were disputes over the method of weigh

ing coal, the method of paying wages and the paying of such wages in orders on the company's stores or truck-shops. In the opinions the courts take the broad position that every business man and every man who seeks the protection of society in order that he may live and do business, and who calls upon that society for protection from physi cal harm and upon its courts for the enforce ment of his contracts, must be willing to yield to that society some measure of regula tion and control when that control is neces sary for the preservation of the public peace and the public welfare." Prof. Bruce adds the comment, with which not every one will agree, that "This is social ism no doubt—or looks like it." "The Supreme Court and the Fourteenth Amendment." By Edward S. Corwin. 7 Michigan Law Review 643 (June) . "The alleged issue between state power and federal power is largely imaginative, and in this connection at least quite pointless. The real issue is far different and traverses both state and federal governments. It is the issue between two theories of government, one of which, centering around the notion of sovereignty, regards government as the agent of society; the other of which, centering around the notion of natural rights, regards government as somewhat extrinsic to society. It is the issue also between two theories of law, the one of which regards law as an emanation from authority and as vested with a reformative function, the other of which holds that law ought to be conservative and ought to represent no more than a ratifica tion of the custom of the community. . . . "The Court in its early fear for the federal balance denied the Fourteenth Amendment practically all efficacy as a limitation upon state power, save in the interest of racial equality before the law. Subsequently, how ever, the Court found reason to abandon its early conservative position and in the interest of private and particularly of property rights to take a greatly enlarged view of its super visory powers over state legislation. As we have seen, the history of this change is the history particularly of the development of the phrase 'due »process of law.' But now an interesting thing is to be noted. The Berea College decision makes it perfectly plain that the enlarged view of 'due process of law' is not available against legislative classifications based on racial differences, such classifications being deemed prima facie reasonable. Thus it comes about that property, or, calling to mind the Santa Clara case (118 U. S. 394), the corporations, succeed to the rights which those who framed the Fourteenth Amend ment thought they were bestowing upon the negro. This outcome is not entirely devoid of irony, but neither on the other hand, as I have above emphazized, is it devoid of his