Page:The Green Bag (1889–1914), Volume 23.pdf/459

 Index to Periodicals

ss L' My; mil‘:

learn: his:

under the will to make the sale in question. This question is frequently of extreme difﬁculty, and the law in Pennsylvania on some of the points involved is in a most unsatisfactory con dition. The particular point for discussion will be the question whether the executor can confer a good title on the purchaser." Federal and State Powers. See Waters.

I *1}

Mr; iii-lb: ass: .‘e'ml

we inn: la 11

Federal Courts and Jurisdiction. “The Genesis of the Supreme Court." By Hon. Hannis Taylor. 18 Case and Comment 3 (June). “The unique creation, without a prototy in history, known as the Supreme Court of t e United States, is the joint product of Pelatiah Webster and John Marshall par nubile fratrum." "The Reorganization of the Federal Judicial System." By Ben. Reuben 0. Moon. 18 Case and Comment 13 (June). "The reorganization of the courts as provided by the new act substitutes for the present cumbersome, impracticable, confusing and ex pensive judicial system a simple, concrete, elastic and logical one; it eliminates a court of original jurisdiction wholly unnecessary and in tactical operation long since fallen into disuse. t does not displace a sin is judge or change the present general practice 0 the courts. It simp iﬁes the proceedings by consolidating juris dictions and by having all cases in courts of ﬁrst instance and all pleadings ﬁled therein brought and ﬁled in the district court, and preserves the same plan of judicature originally designed by the framers of the Constitution and adopted by most of the states, to wit, one court of original jurisdiction, an inter mediate court of appellate jurisdiction—ﬁnal in many cases — and the Supreme Court as the court of last resort." "When Does a Case ‘Arise’ under Federal Laws?" By Charles A. Willard. 45 American Law Review 373 (May-June). "The Constitution declares (art. 3, sec. 2),

that the judicial power shall extend ‘to all cases in law and equit arising under this Constitution, the lawsof the nited States,’etc. When doesa case arise under the Constitution and laws, as

those words are here used?" See Court of Claims. Forensic Oratory. "Forensic Eloquence." By Hon. A. W. Wilkinson. 20 YaleLaw Journal 620 (June). "If you don't love a ﬁght. you will be very apt not to love the law. The shrinking from entering upon trial, the dread of its responsi bilities, the apprehension for its results have been, with many practitioners, suﬁcient to render their calling positively distasteful and odious; and among the number of these might be counted many whose bearing in the court room and whose success as advocates were such that none would suspect their inward reluctance at entering on its controversies." General Jurisprudence. "The Scope and Purpose of Sociological Jurisprudence; 1, Schools

425

of Jurists and Methods of Jurisprudence." By Professor Roscoe Pound. 24 Harvard Law Re view 591 (June). The first of what promises to be a noteworthy series of papers, in which we shall look for an exposition of the tendencies now visible in the scientiﬁc investigation of fundamental problems, and of the present status of legal science in its higher forms.

In this introductory portion, the

schools heretofore existing are divided into three principal groups, each of which is discussed. These are the Analytical, the Historical and the Philosophical schools. Of late there have been many indications of an approach to a new posi tion, and of the rise of a so-called Sociological school. The Analytical school at ﬁrst adhered to the analytical method exclusively, but later its method became historical as well as analytical. "The analytical jurist pursues a comparative study of the purposes, methods and ideas com mon to developed systems of law by analysis of such systems and of their doctrines and institu tions in their matured forms." This school considers developed systems only, it regards the law as something consciously made, not found, it lays emphasis on the sanction of judicial enforcement, and it is usually utilitarian

or

teleological in its philosophical views. The imperative theory overlooks the need of squar ing the law with the demands of reason and exigencies of conduct on one hand, and with the demands of social progress on the other. It is a doctrine well suited to the administration and exercise of legal functions, l‘but it is not

expedient that law-makers adhere to and be governed by it." The Historical school really began with Savigny. Both the historical and the philo sophical jurist agree that law is found, not made. The Historical school considers the past rather than the present of law, it sees chieﬂy the social pressure behind legal rules, its type of law is custom, and its philosophical views have mainly been Hegelian. Like the Analytical school, it is open to the objection of working a prion’. It is a theory which tends to re-action and stag nation in the actual process of law-making. The movement, however, led naturally into what

Kohler styles universal legal history, and it was not ion "in assuming the name and something of the c aracter of a sociological jurisprudence. ' "The philosophical jurist studies the philo sophical and ethical bases of law, legal systems, and particular doctrines and institutions, and criticizes them with respect to such bases." This school has held very diverse philosophical views. First came an eighteenth century law of nature school, which was followed in the ﬁrst half of the nineteenth century by a metaphysical school which has prejudiced contemporary lawyers ainst philosophical jurisprudence in any form. "t is," however, “as unfair to identif the philosophical method absolutely with rause or Ahrens or Roder or Lorimer as to identify anal ical jurisprudence absolutely with the text of ustin." We are not bound to accept Naturrecht as the philosophy of law. Thus has arisen a Social-Philosophical school, of which