¹ (1911) 24 H.L.R. 591, (1912) 25 id. 140, 489.

² (1960) 28 U. of Chicago L.R. 174–182, at 179–181.

³ See as to Pound's work on theory Stone, Review of Pound's magnum opus, Juris prudence (5 vols. 1959) in (1962) 75 H.L.R. 1240; Stone, “The Golden Age of Pound” (1962) 4 Syd. L.R. 1–25, at 2.

⁴ (1963) 10 U.C.L.A.L.R. 729–738.

⁵ We do not take up, since they have already received much well-deserved eulogy, his particular forays into problems of legal reform such as his “Causes of Dissatisfaction with the Administration of Justice” (1906) 29 A.B.A. Rep. 595 or his survey “Criminal Justice in an American City” in Pound, R. and Frankfurter, F. (eds.), Criminal Justice in Cleveland (1922)Google Scholar, or his “Liberty of Contract” (1909) 18 Yale L.J. 454. For a stocktaking on the first area above, see Vanderbilt, A. T., Improving the Administration of Justice… (1957, Marx Lectures, Univ. of Cincinnati)Google Scholar.

⁶ R. Pound, “Scope and Purpose of Sociological Jurisprudence” (1912) 25 H.L.R. 489, 513, 516. Pound felt able still to state it as a programme in 1943 (Outlines (5 ed. 1943) 32–35). And cf. in 1953 A.M. Rose, “Problems in the Sociology of Law and Law Enforcement” 6 J. Leg. Ed. 191.

⁷ See Stone, , The Province and Function of Law (1946) cxviiGoogle Scholar.

⁸ As we write, the entry of Gerald Gardiner, Q.C., into the office of Lord Chancellor suggests the likelihood (political circumstances permitting) of a great intensification of British concern.

⁹ See Conference on Law and the Behavioral Sciences, held at the Center for Advanced Study in the Behavioral Sciences, Palo Alto, August 7–11, 1956, Mimeographed Report, Session of August 7.

¹⁰ See id., August 9, 1956.

¹¹ This is probably a part (though a misdirected one) of the drive behind attempts to establish that there is an autonomous “sociology” or “social science” of law, as with Timasheff, Cairns, and Gurvitch, discussed in J. Stone, Social Dimensions of Law and Justice (forthcoming, 1965, and here referred to as “Stone, Social Dimensions”), Ch. 1, §§7–8.

¹² We refer, of course, to the early work of Ehrlich whose “seminar of living law” at Czernowitz had yielded fruitful results in the field of contracts, and matrimonial property regimes. See his Sociology, passim, esp. cxxi, 489–93, for numerous examples. And see Stone, Social Dimensions Chs. 11 ff. passim. For recent Italian work in this field see Nirchio, G., “Il Diritto Vivente” (1960) 37 Riv. Int. di Fil. del Dir. 194, esp. 198–206Google ScholarCf. Rose, A.M., “The Use of Law to Induce Social Change” (1956) 6 Transactions of 3rd World Congress of Sociology 52–62Google Scholar; id., article cited supra n. 16.

¹³ See Pound, R., “Law in Books and Law in Action” (1910) 44 Am. L. Rev. 12Google Scholar; and cf. more recently in England Harvey, C.P., “A Job for Jurisprudence” (1943) 7 M.L.R. 42CrossRefGoogle Scholar. Among the problems studied see, e.g.: (1) Effect on workmen's compensation remedies of the fact that claims are usually opposed by powerful private insurance companies: Jones, A. Russell, “Workmen's Compensation…” (1943) 7 M.L.R. 13, 18–19Google Scholar; SirWilson, A. and Levy, H., Workmen's Compensation (1939) 225Google Scholar; Chambers, R. C., “Some Aspects of Workmen's Compensation” (1941) 5 M.L.R. 113, 115–16CrossRefGoogle Scholar. What is the relation of this to the vast proliferation of reported cases on the interpretation of a statute aimed to be simplicity itself? (2) The large-scale use of the hire-purchase device and the finance company in motor car sales, as contrasted with the theoretical position in Mclntyre v. Crossley [1895] A.C. 457, well raised by C. P. Harvey, article cited. And cf. Gower, L.C.B., “Building Societies and Pooling Agreements” (1939) 3 M.L.R. 22.CrossRefGoogle Scholar (3) The effect on the law of motor car accidents of “knock for knock” arrangements between insurance companies (raised in Groom v. Crocker [1939] 1 K.B. 194). Cf. the debate around Hughes, H., “The Position of the Injured Third Party” (1939) 2 M.L.R. 295 passim, esp. 297–98, 300Google Scholar. R. S. T. Chorley and A. M. Finlay, Notes (1938) 2 id. 36, 38. (4) The actual operation of theoretical legal control over trading companies with respect to issue of shares at a discount and the overvaluation of purchased assets. Cf. Kahn-Freund, O., “Some Reflections on Company Law Reform” (1943) 7 M.L.R. 54–56CrossRefGoogle Scholar, and see now U.K. Companies Act, 1948, ss. 53 ff., esp. s. 57. Among many related problems of company law cf. esp. that of “lifting the corporate veil”; see recently Jones v. Lipman [1962] 1 W.L.R. 832. And see O. Kahn-Freund, Note (1940) 3 M.L.R. 226–28, and the valuable comparative study by Cohn, E. J. and Simitis, C., “‘Lifting the Veil’ in the Company Laws of the European Continent” (1963) 12 Int. and Comp. L.Q. 188–225Google Scholar. In the U.S. this problem is much less troublesome because of judicial willingness to “look through the forms to the realities of the relations” (U.S. v. Reading Co. (1920) 253 U.S. 26, 63) “whenever the facts make it just and equitable to deal with the case in that way” (Pennington, R. R., The Principles of Company Law (1959) 36n.Google Scholar; cf. Hahlo, H. R., “The Bodies behind the Veil” (1959) 76 S. Afr. L.J. 89)Google Scholar. U.S. courts are then able to come to grips with many problems, notably that of the “thin corporation”, which remain largely inaccessible to British courts. See E. B. Benjamin, “Thin Corporations—Whose ‘Substance over Form?’” (1959) 34 Tulane L.R. 99–136, and literature there cited. (5) The operation of the law as to execution of judgments. Cf. Turner, R. W., “Our Archaic Forms of Execution” (1941) 4 M.L.R. 21Google Scholar. (6) Effect of the changing structure of industry on the scope of the common employment doctrine: see Unger, J., “Common Employment” (1938) 2 id. 43Google Scholar. (7) Effect of third party insurance on the leve) of damages awarded: H. Hughes, cit. supra under (3) at 297–98. (8) The operation in action of the law as to child-killing; see Seaborne-Davies, D., “Child-Killing in English Law” (1937) 1 M.L.R. 203, 269CrossRefGoogle Scholar. (9) Occasionally the law-fact incongruity has to be faced by courts themselves, as with the contrast of the legal and de facto roles of Magistrates' Clerks in their judicial functions. See R. v. Barry (Glamorgan) Justices [1953] 1 W.L.R. 1320 and R. v. East Kerrier Justices [1952] 2 Q.B. 719. See the statement by the L.C.J. with the concurrence of the L.C. and other judges in [1953] 1 W.L.R. 1416. (10) The English jury is in fact really “a combination of judge and jury”, on which see SirDevlin, Patrick, Trial by Jury (1956), lect. 1–3Google Scholar. The U.S. jury may thus have to be seen, due to lesser control by the judge, as not quite the same institution as the English. And see Stone, Social Dimensions, Ch. 14, §32. (11) The judicial assessment by Murphy J. of the value in action of the remedy of civil damages for unlawful searches and seizures, as contrasted with the rule in the Weeks Case (1914) 232 U.S. 383, excluding evidence thereby obtained. See Wolf v. Colorado (1949) 338 U.S. 25, 42–44, 69 Sup. Ct. Rep. 1359, 1370. (12) The relation of commercial law to businessmen's practice, on which see the able general sketch by Gower, L. C. B., “Business” in Ginsberg, , 20th Century 143–172Google Scholar. (13) The great volume of work on administrative law and processes, on which see Stone, J., “The Twentieth Century Administrative Explosion and after” (1964) 52 Cal. L.R. 513–542CrossRefGoogle Scholar (Walter Perry Johnson Lecture, 1964) Stone, Social Dimensions Ch. 14, §§15 ff.

¹⁴ Cf. for the general texture of a leading approach to the U.S. Constitution Powell, T. R., Vagaries and Varieties in Constitutional Interpretation (1956)Google Scholar.

¹⁵ See Harper, F. V., “Myth of the Void Divorce” (1935) 2 L. and C. Prob. 335Google Scholar; Marshall, L. C. and May, G., The Divorce Court—Maryland (1932)Google Scholar, Ohio (1933).

¹⁶ Cf. C. P. Harvey, cited supra n. 13.

¹⁷ See infra n. 47.

¹⁸ See the striking English incident as to this infra n. 47 (4).

¹⁹ On this “loan-shark” problem see, e.g., F. B. Hubachek, R. Nugent, R. W. Kelso, J. R. Collins, W. H. Simpson, and W. T. Foster, in (1941) 8 L. and C. Prob. 108, 259, 14, 54, 73, and 155 resp., on background, regulation, evasion and social costs. Cf. on instalment selling the articles in (1935) 2 id. 139, esp. N. Isaacs at 41, M. W. Adelson at 218, M. H. Risk at 269, N. T. Foster and L. R. Foster at 188.

²⁰ See, e.g., recently, Franklin, A., Chanin, H. and Mark, I., “Accidents, Money, and the Law: A study of the Economics of Personal Injury Litigation” (1961) 61 Columbia L.R. 1CrossRefGoogle Scholar; Hunting, R. B. and Neuwirth, G. S., Who Sues in New York City?—A Study of Automobile Accident Claims (1962)Google Scholar; Morris, C. and Paul, J. C. N., “The Financial Impact of Automobile Accidents” (1962) 110 Univ. of Pa. L.R. 913CrossRefGoogle Scholar. And see Stone, Social Dimensions Ch. 6, §2, and works there cited.

²¹ Cf. the work leading to the U.K. Legal Aid and Advice Act, 1949, on which see Thompson, C. S., “…The British Legal Aid Experiment” (1953) 53 Columbia L.R. 789–803CrossRefGoogle Scholar. On the concern among U.S. lawyers that their achievement lags behind the British in this respect, see Jenkins, A. H., “Equal Justice?” in Machinists Monthly Journal (Mar., 1951) 72Google Scholar; and see infra n. 47. On the problem of delays in court see Rosenberg, M. and Chanin, R. H., “Auditors in Massachusetts as Antidotes for Delayed Civil Courts” (1961) 110 Univ. of Pa. L.R. 27Google Scholar. And see infra n. 47, and Stone, Social Dimensions, Ch. 6 §12.

²² See Cleary, E. W., “Res Judicata Re-examined” (1948) 57 Yale L.J. 330Google Scholar. And see the related problems discussed Coutts, J. A., “Effect of a Criminal Judgment on a Civil Action” (1955) 18 M.L.R. 231CrossRefGoogle Scholar; Helton v. Allen (1940) 63 C.L.R. 691.

²³ Used according to Williams, J. E. Hall, Note (1957) 20 M.L.R. 502–505Google Scholar in no less than 93% of all non-indictable convictions in 1955. See conversely on the effects of the more stringent imprisonment Sykes, G. M., The Society of Captives (1958)Google Scholar (a 3-year study of the State Maximum Security Prison at Trenton). So the Royal Commission on Capital Punishment found no rational ground for distinguishing between the sexes on that matter. Yet only one in ten of the 135 women condemned to death in the United Kingdom from 1900 to 1949 were executed.

²⁴ Thus, the Walter E. Meyer Research Institute of Law (see Report 1960–62 pp. 20–23) is sponsoring studies of English and American judicial administration; discovery practice under federal law; disciplinary powers in the integrated California Bar; adjudication procedures in Children's Courts; freedom of association; and rent control in Hawaii, see, e.g., Newman, F. C., “The Process of Prescribing ‘Due Process’” (1961) 49 Cal. L.R. 215CrossRefGoogle Scholar; id., “Some Facts on Fact-Finding by an Investigatory Commission” (1961) 13 Admin. L.R. 120; id., “Due Process Investigations, and Civil Rights” (1961) 8 U.C.L.A.L.R. 735; Rosenberg, M. and Schubin, M., “Trial by Lawyer: Compulsory Arbitration of Small Claims in Pennsylvania” (1961) 74 H.L.R. 448CrossRefGoogle Scholar. There are also standing projects on “Effective Justice” at Columbia University, and on Judicial Administration at New York University. See infra n. 179.

²⁵ An indirect (but surely reliable) guide to this is in such books as Cutler, A. S. and Hart, H. A., Negligence Cases: Winning Strategy (1957)Google Scholar.

Some of the Chicago jury studies of the 'fifties show not only that juries shaded damages down when they had doubts as to liability, and up when defendant was thought to be insured, but that damages tended to be highest when the fact of insurance was disclosed, and the judge instructed the jury to duregard it. Judges, on the other hand, while they gave largest damages when insurance was disclosed without comment, gave the lowest damages when the disclosure was ordered by the judge to be disregarded. These studies also suggested, by the rarity of cases of a single dissentient juryman, that in fact juries work by majority, despite the legal requirement of unanimity. The studies proceeded both by opinion surveys as well as interviews (with court co-operation) with serving jurymen, by questionnaires to 1,900 judges on 2,000 criminal and 3,000 civil cases as to how far the sitting judges would have found differently from the juries in cases before them; and by experiments in which specially devised case records were played to a jury from tape, with a judge sitting and with varying presentations and instructions. Yet data was often still not available even on simple matters such as the relative cost in time of judge with jury, as compared with judge alone. And see H. Kalven's Report, Behavioral Sciences Law Conference, 1956 (supra n. 9), Aug. 10-11 Session; Zeisel, H., Kalven, H. Jr. et al. , Delays in the Court (1959)Google Scholar. Kalven, H., “The Jury, the Law and the Personal Injury Damage Award” (1958) 17 Ohio St. L.J. 158Google Scholar; Zeisel, H., “Social Research on the Law”, in Evan, W. M. (ed.) Law and Sociology (1962) at 138Google Scholar; Strodtbeck, F., “Social Process, the Law…” in Evan, W. M. (ed.) id. 152Google Scholar; Strodtbeck, F. et al. , “Social Status in Jury Deliberations” (1957) 22 Am. Soc. Rev. 713CrossRefGoogle Scholar. A number of volumes are still (late 1964) projected arising out of the Chicago studies from various of these and other authors, e.g., on the current image of the jury system, and the backgrounds of jurors in relation to their decisions, and various related survey reports.

²⁶ See for the point arising judicially, Collier Garland…v. Hotchkiss (1957) 97 C.L.R. 475. The question whether the legislator's formulae are intra vires merely because the executive practice is restrained to what an intra vires formula would permit, is a distinct one. It depends not on the Court's attitude to the contrast between legally supposed fact and the real facts, but to the policies involved in the court's tolerating or (per contra) exposing the discrepancy in relation to the matter before it. Contrast the court's attitude in the above case with that expressed obiter in R. v. Foster ex p. Cwlth. Life … Assurances Ltd. (1952) 85 C.L.R. 138.

²⁷ What Ehrlich in his pioneering work termed “legal propositions” and “rules for official decision”. See his Sociology passim esp. ccviii and ccix.

²⁸ What Ehrlich (id. 38–39 and ccii, cciii and ccxiv, and esp. ccxxi) termed “the living law”, “the legal command reduced to practice, as it obtains in a deénite association…even without any formulation of words,” together with other “social norms” arising as the inner order of stable non-State associations. As was to be expected, later work has brought differentation into this broad early formulation of the problem. So cf. the paradox that businessmen seem less concerned than lawyers with reform of commercial law, while lawyers are “remote from commercial realities,” on which see Gower, L. G. B., “Business” in Ginsberg, , 20th Century 143, 167–172.Google Scholar

The plea for more concern about the effects of first instance decisions is renewed in Freund, Supreme Court 90. And see for examples of such work, Dash, S., “Cracks in the Foundation of Criminal Justice” (1951) 46 III. L.R. 385–406Google Scholar; and many aspects of Frank, Courts.

A subdivision of this type much stressed by Ehrlich, and which has a rich common law literature surrounding it, should here be mentioned; namely, the divergence which arises from terms regularly inserted by parties in legal transactions, which even if formally permitted by the law, as in most cases of contract, may produce an actual rule in society far different from what would be gleaned from a technical legal work. See his Sociology ccxvi and ccxxi, esp. 493–98, on the techniques of the use of “business documents” for ascertaining the “living law”. His meaning will be obvious to practitioners familiar with the growth of “standard conditions”, for instance, in contracts of sale of land, and commercial contracts, before any legislative adoption of them. We ought, he said, to have more monographs on the brewers' supply of beer, or the sale of a physician's practice, than “on the concept of the juristic person” (495). See Prausnitz, O., The Standardisation of Commercial Contracts (1937)Google Scholar and see Stone Social Dimensions, Ch. 14 §3, on the recognition of this sphere of private ordering within facilities provided by general rules of law.

²⁹ See Frank, Courts; Williams, G. L., The Proof of Guilt (1958)Google Scholar; Derham, D. P., “Truth and the … Judicial Process” in Australian Studies in Legal Philosophy 75–89Google Scholar. And see Stone, , Social Dimensions, Ch. 14, ss. 24–26 and ss. 12–13Google Scholar.

³⁰ See, e.g., Sociology 132–36, esp. 135.

³¹ Cohen, , Ethical Systems 240Google Scholar. For leading works with this kind of approach to international law, see de Visscher, C., Theory and Reality in Public International Law (transl. Corbett, P. E., 1957)Google Scholar; Stone, , Legal Controls; id., Aggression and World Order (1958)Google Scholar.

³² For late restatements of this plank of the programme by Pound see id., “The Lawyer and Social Engineer” (1955) 3 Law and Medicine 292–303; Pound, 1 Jurisprudence 352, 3 id. 596–97. Cf. for related general proposals, Simpson-Field, “Social Engineering”; Rose, article cited supra n. 8; Auerbach, C. A., “Law and Social Change in the United States” (1959) 6 U.C.L.A.L.R. 516Google Scholar; Lee, F. P., “The Office of the Legislative Counsel” (1929) 29 Columbia L.R. 381CrossRefGoogle Scholar; Glueck, S., “The Social Sciences…in the Administration of Justice” (1933) 167 Ann. Am. Acad. Pel. Sc. 106CrossRefGoogle Scholar; Luce, R., Legislative Principles (1930)Google Scholar; Oliphant, H., “The Relation of …Current Problems to the Restatement…” (1923) 10 Proc. Am. Acad. Pol. Sc. 323Google Scholar; Selznick, P., “The Sociology of Law” in Merton, R. K. et al. (ed.), Sociology Today (1959) 114–127Google Scholar, which seems still marking time at Pound's basic article cited supra n. 8, esp. 25 H.L.R. 489, 490–91. (The fundamental drive is of course much older than Pound's statement; as to Savigny see infra n. 130 and Stone, Social Dimensions, Ch. 2, §§7–10). See also the symposium in A. F. Conard (ed.), Conference on Aims and Methods of Research (1955). Cf. as to the draftsman's expertise, Macmillan, , Law 27–30Google Scholar; and as to statistical data D. V. Glass, Note (1938) 2 M.L.R. 49, Robinson, H. W., “Law and Economics” (1939) 2 M.L.R. 257, 263CrossRefGoogle Scholar and the U.K. Population (Statistics) Act, 1938. And see infra Section X.

For some notable examples of such work in particular areas (besides Royal Commissions and similar official inquiries, on which see infra n. 34) see Columbia University Council for Research in the Social Sciences, Columbia Report on Compensation for Automobile Accidents (1932); Douglas, W. O., “Wage Earner Bankruptcies” (1933) 42 Yale L.J. 591CrossRefGoogle Scholar; Harris, R. et al. , Hire Purchase in a Free Society (3 ed. 1958) 192Google Scholar. So among current projects on an interdisciplinary basis see that on due process and job rights in modern industries, referred to Selznick, P., in Merton, R.K. et al. (ed.), Sociology Today 122–23Google Scholar.

³³ Cf. the recent assessment in Brown, R. S. Jr., “Legal Research: The Resource Base…” A.B.S., Legal Research 3, 5–6Google Scholar. (That author is Director of the Walter E. Meyer Research Institute of Law, on which see infra n. 182.)

³⁴ Thus the introduction of workmen's compensation acts was facilitated by investigations establishing the high degree of “natural hazard” involved in modern industry. See the account in Ives v. S. Buffalo Rly. Co. (1911) 291 N.Y. 271, 284, There have been subsequent English committees on the working of the Acts in 1903 and 1920 (Holman Gregory Committee). Cf. the early Select Committee on Motor Traffic, 1912. On the role of research in road legislation generally, see Weiss, E. D., “Legislation and Road Accidents” (1938) 2 M.L.R. 139CrossRefGoogle Scholar, esp. 142 Cf. the Inter Departmental Committee on Abortion (1939) to consider means (by more effective enforcement of the law “or otherwise”) to reduce maternal mortality and disease; and the admission by the U.K. Homicide Act, 1957, s. 2(1), of the plea of “diminished responsibility” in deference to the psychiatric standpoint on insanity, adopted by the Royal Commission on Capital Punishment, 1953. See generally the various inquiries on corpora] punishment, capital punishment and marriage and divorce cited supra Section VII, and the pre-legislative work of the U.K. Monopolies Commission, on which see Stone, Social Dimensions Ch. 8 §9. And see on betting and lotteries in England id., Ch. 13, n. 157; and on pure food and drugs the Symposium in (1939) 6 L. and C. Prob., cited id., Ch. 6, § 2. Cf. in the development of the poor law the successive work of the Select Committee on National Provident Insurance, 1887, Royal Commission on the Poor Law, 1909 (Cmd. 4499), Departmental Committee on the Aged Deserving Poor, 1909, and for current work and proposals Titmuss, R. M. et al. , National Superannuation (1957) ciiGoogle Scholar. In education there were five major inquiries in half a century, between the Bryce Commission and the Report on Technical Education, 1956 (Cmd. 9703).

³⁵ On this matter in relation to the courts see S. Glueck, op. cit. supra n. 32; Willcox, W. F., “The Need of Social Statistics as an Aid to the Courts” (1913) 18 Am. J. Soc.CrossRefGoogle Scholar; Yntema, H. E., “The Purview of Research in the Administration of Justice” (1931) 16 Ia. L.R. 337Google Scholar; briefs filed by amici curiae in Adkins v. Children's Hospital (1922) 261 U.S., 539, and Sutherland J. at 559–60, and Holmes J. at 570–71; Baking Co. v. Bryan (1924) 264 U.S. 504, Brandeis J. dissenting at 519, 520, 533–34. Cf. Brandeis's brief when at the bar in Muller v. Oregon (1908) 208 U.S. 412 (abstracted on 419–420), and also his opinion in New State Ice Co. v. Liebmann (1931) 285 U.S. 262, 308–311. The subsequent controversy (see Garfinkel, H., “Social Science Evidence and the School Segregation Cases” (1959) 21 J.C. Pol. 37–59CrossRefGoogle Scholar; Freund, , Supreme Court 120–21, 150 ff.)Google Scholar whether “the Brandeis brief” is apt for use to marshall extra-legal data for use to overturn rather than support a statute's constitutionality as in the Segregation Case (Brown v. Board of Education (1954) 347 U.S. 483), scarcely affects the general jurisprudential point. Riesman's, D. general view in Evan, (ed.), Law and Sociology (1962) 23 at 28Google Scholar, that “the Brandeis brief” shows how “at its lowest level, social science provides new gimmicks to be used in advocacy,” and is a polemic weapon, is more in point, but surely overstated. We incline rather to the view of Patterson, E. W., “Some Reflections on Sociological Jurisprudence” (1958) 44 Va. L.R. 395, 405Google Scholar, that effort at dispassionate use of social science materials tones down polemics, and that in any case the Segregation Case would have had the same issue even without the sociological brief (id. 403–05). The role of social science evidence, e.g., in relation to segregation and in the formulation of the U.S. Draft Penal Code was discussed (rather indecisively) at the Behavioral Sciences Law Conference (supra n. 9), on August 8, 1956. See also McKay, R. B., “Social Science, Segregation and the Law” (1961) 89 School and Society 172Google Scholar; Freund, P. A., “Storm Over the…Supreme Court” (1958) 2 M.L.R. 345CrossRefGoogle Scholar. And see id., Supreme Court 153–54, for the need of a judicial reference service to supplement or replace the Brandeis-type brief.

Cf. for similar stirrings in English judicial opinions Scott L. J. in Bamjord v. Osborne [1940] 2 All E. R. 317; the use of divorce statistics by the majority in Fender v. Mildmay [1938] A.C. 1. And cf. as to the common employment doctrine Unger, J., “Common Employment” (1938) 2 M.L.R. 43, 45CrossRefGoogle Scholar. On the inherent powers of courts to equip themselves for their duties see Ex p. Peterson (1920) 253 U.S. 300, 303, 309 ff. For an account of the very limited role of experts in England see Macmillan Law 254–55, 271, and for a survey in the field of evidence Smith, H. N., “Scientific Proof” (1943) 56 Yale L.J. 586CrossRefGoogle Scholar. On the expert skills involved in the treatment of youth delinquency see Healy, W., “Youth Correction: Diagnosis and Prognosis” (1942) 9 L. and C. Prob. 681Google Scholar; and on insanity issues in criminal trials Overholser, W. “…The Briggs Law” (1935) 2Google Scholarid. 436. On the ill-effects of partisan procedure on expert evidence see id., and H. Weihofen, id., 436; and see generally Richardson, J. R., Modern Scientific Evidence (1961)Google Scholar; Schur, E. M., “Scientific Method and Criminal Trial Decision” (1958) 25 Social Research 173–90Google Scholar. On the Continental position see M. Ploscowe, id. 504. And see Stone, Social Dimensions, Ch. 14 §§24–26.

³⁶ See Freund and Garfinkel, both cited supra n. 35. And see for notable studies focusing sociological data on the legal problems of segregation, Berger, M., Equality by Statute (1952) esp. cvGoogle Scholar; Greenberk, J., Race Relations and American Law (1959)Google Scholar; Groner, I.M. and Helfeld, D.M., “Race Discrimination in Housing” (1948) 57 Yale L.J. 426–458CrossRefGoogle Scholar; Auerbach, C.A., “How Congress Can Speed Integration” New Leader, Dec. 22, 1958, 81Google Scholar.

³⁷ As late as 1927 the Tomiin Committee (Cmd. 2469) anticipated continuance of a shortage of adoptive parents.

³⁸ See Kahn-Freund, O., “Divorce Law Reform” (1956) 19 M.L.R. 572CrossRefGoogle Scholar, esp. at 573, 577–78, 580–85, criticizing the Royal Commission Report, 1956. See Stone, Social Dimensions, Ch. 6, §§9–10. Cf. as to Costs Gower, L.C.B., “The Cost of Litigation” (1954) 17 M.L.R. 1–17CrossRefGoogle Scholar, criticizing the Evershed Committee Report 1953 (Cmd. 8878), with figures supporting the claim that in fact a wide class of the community remained deprived of judicial remedies.

³⁹ Of which, apart from matters of marriage and divorce (supra n. 38) the best known in the U.K. was the Committee on Administrative Tribunals and Enquiries, 1957 (Franks Committee, Cmd. 218), of which many proposals (but not those concerning appointments to tribunals and inspections) were accepted by the Government. See 575 H.C.D. Oct. 31, 1957, cols. 400–519; 206 H.L.D. Nov. 27, 1957, cols. 522–92.

⁴⁰ See e.g., for economic hearings on s. 90 of the Australian Constitution Arndt, H.W., “Judicial Review under s. 90…” (1952) 25 A.L.J. 661Google Scholar; 706. Note: “Psychiatric Assistance…in… Testamentary Capacity” (1953) 66 H.L.R. 1116–24; Baxter, W. T., “British Transport Com. v. Gourley (1956) A.C. 185” (1956) 19 M.L.R. 365–373 (an accountant's study)CrossRefGoogle Scholar; Ehrenzweig, A. E., “A Psychoanalysis of Negligence” (1953) 47 Northw. U.L.R. 858–872Google Scholar; Glueck, S., Law and Psychiatry (1962)Google Scholar; Lasswell, H. D. and Freedman, L. Z., “…Psychiatry and Law” (1960) 117 Am. J. Psych. 490CrossRefGoogle Scholar; Scher, J. M. et al. , “Forensic Psychiatry…” (1962) 57 Northw. U.L.R. 1–28Google Scholar; and the symposium in Nice, R. W. (ed.), Criminal Psychology (1962)Google Scholar. The battle between the disciplines goes on concurrently. See Szasz, T., Law, Liberty and Psychiatry (1963)Google Scholar, Silving, H., “Psychoanalysis and the Criminal Law” (1960) 51 J. Crim. L., Crimin. and Pol. Sc. 19–33CrossRefGoogle Scholar.

⁴¹ It has had an Advisory Council for ad hoc references since 1945. It has a Research Unit doing current analysis on penal matters, with publications from Mannheim and Wilkins, op. cit. infra n. 65 (1955) to Gibson, E. and Klein, S., Murder (1962)Google Scholar (a study of its incidence in relation to victims, motives etc.) and Hammond, W. H. and Chayen, E., Persistent Criminals (1963)Google Scholar. Grünhut, M., Juvénile Offenders before the Courts (1956)Google Scholar was also sponsored by the Home Office; and the notable early study by Goring, C. B., The English Convict… (1913)Google Scholar was inaugurated by the U.K. Prisons Commission.

⁴² And see the tenor of Hall, J., “Revision of the Criminal Law…” (1954) 33 Neb. L.R. 3Google Scholar; id. General Principles of Criminal Law (1947) well summarized by Landon, P. A., Book Review (1948) 64 L.Q.R. 395Google Scholar; Mannheim, N., “Criminal Law and Penology” in Ginsberg, , 20th Century esp. 283–84Google Scholar; Hall, J. and Menninger, K., “Psychiatry and the Law” (1953) 38 la. L.R. 687–714Google Scholar.

⁴³ See citations supra n. 35; and see Friedmann, W., Introduction to the Bibliography in (1961–1962) 10/11 Current Sociology, No. 1, pp. 7–8Google Scholar.

⁴⁴ Cf. Generally Karst, K.L., “Legislative Facts in Constitutional Litigation” (1960) Sup. Ct. Rev. 75Google Scholar; Kadish, M., “Methodology and Criteria in Due Process Adjudication…” (1957) 66 Yale L.J. 319CrossRefGoogle Scholar; Newman, F., “The Process of Prescribing Due Process” (1961) 49 Cal. L.R. 215CrossRefGoogle Scholar; R. Traynor, “No Magic Words…” in id. 615, esp. 626–27, noting the final indeterminacy of limits on p. 628.

⁴⁵ Cf. Griffith, J. A. G., in Ginsberg, , 20th Century 116, 121–22, 133–36, 140–42Google Scholar, who however exaggerates these cautions into an unwarranted overall scepticism. And see for diverse caveats on the value of extra-legal enpertise, the letter by Rabinowitch, I. M. in (1953) 31 Can. B.R. 1069–74Google Scholar (as to scientific tests); Neale, Anti-Trust passim and Stone Social Dimensions, Ch. 8 passim.

⁴⁶ Cf. Pound, R., “The Scope and Purpose of Sociological Jurisprudence” (1911) 24 H.L.R. 591CrossRefGoogle Scholar, (1912) 25 id. 140, 489; Pound, R. “The Need for a Sociological Jurisprudence” (1907) 19 Green Bag 107Google Scholar. id., “Law in Books and Law in Action” (1910) 44 Am. L. Rev., 12; id., “The Enforcement of Law” (1908) 20 Green Bag 401; id., “Limits of Effective Legal Action” (1917) 27 Int. Jo. Ethics 150, also in (1917) 3 A.B.A.J. 55, first publ. (1916) 22 Pa. B.A. Rep. 221; id., The Administration of Justice (1928); Arnold, T., “The Role of Substantive Law and Procedure” (1931) 45 H.L.R. 617CrossRefGoogle Scholar; id. “Law Enforcement: An Attempt at Social Dissection” (1933) 42 Yale L.J. 1; Willoughby, W. F., Principles of Judicial Administration (1929) 91–206Google Scholar.

⁴⁷ For instance: (1) As to aptness of juries for the complex inquiries of anti-trust or fraud cases. (See Stone, Social Dimensions, Ch. 8, §7.) There is a limited recognition of this problem in the English Rules of the Supreme Court, O. 15, r. 19, Ann. Prac. (1944) 1193–94. (2) What is the effect of machinery deficiencies and economic inequalities on substantive rights? Gurney-Champion, F. C. G., Justice and the Poor in England (1926)Google Scholar; Parry, E. A., Law and the Poor (1947) (England)Google Scholar; Smith, R. H., Justice and the Poor (1919) (America)Google Scholar; Mullins, C., In Quest of Justice (1930)Google Scholar; Matthew, T., For Lawyers and Others (1938) 240 ff.Google Scholar; Hart, H., The Way to Justice (1941)Google Scholar; Jackson, R. M., Machinery of Justice in England (1942) 246 ff.Google Scholar; Cohen, E. J., “Legal Aid for the Poor” (1943) 59 L.Q.R. 250, 359Google Scholar (a comparative study). In 1942 (it was asserted) a High Court action for less than £250 and a County Court action for less than £40 were rarely worth fighting. (Harvey, C.P., “Law Reform…” (1942) 6 M.L.R. 39, 40)CrossRefGoogle Scholar. And see the 1949 Legal Aid Act supra n. 21; the Evershed Committee Report (supra n. 38); Gower, L. C. B., “The Cost of Litigation” (1954) 17 M.L.R. 1–23CrossRefGoogle Scholar; and Stone, Social Dimensions Ch. 6, §§12, 23. In the U.S., it was estimated in 1951 that 60% of the defendants in criminal cases were too poor to hire counsel (see Jenkins, cit. supra n. 21, at 73). At that time 14 U.S. cities, led by Los Angeles, had established an office of Public Defender, usually supported by voluntary Legal Aid Societies. Two states—Connecticut and Rhode Island—had laws providing a Public Defender in each county, and in a few other cities Public Defenders were supported by Community Chests and other charitable agencies. See the extensive bibli, in R. H. Smith, cit. infra n. 74, at 551; and see Callagy, M. V., “Legal Aid in Criminal Cases” (1952) 42 J. Crim. L., Crimin. and Pol. Sc. 589–624CrossRefGoogle Scholar. A major stimulus to further progress was Gideon v. Wainwright (1963) 372 U.S. 335, reversing Betts v. Brady (1942) 316 U.S. 455, to establish a contitutional right to counsel in State Courts. Florida, the State involved in the Gideon Case, thereupon introduced 16 Public Defenders throughout the State. Yet in 1964, though the number of indigent defendants had risen to 150,000 a year, only 194 of the 3,100 counties in the U.S. had Public Defenders. The main focus of efforts for a nation-wide defender system is the National Defender Project at Chicago, instituted in 1963 by the National Legal Aid and Defender Association assisted by the Ford Foundation. See generally Beaney, W. M., The Right to Counsel in American Courts (1955)CrossRefGoogle Scholar; Kelley, N., “Legal Ethics, Legal Aid, and the Responsibility of Lawyers…” (1960) 9 J. Publ. L. 188Google Scholar; Marsden, O. S., “Equal Access to Justice…” (1962) 19 Wash. & Lee L.R. 153Google Scholar; and Notes in (1962) 29 Brook. L.R. 121 and (1963) 76 H.L.R. 579. And see Vanderbilt, A. T., “The Municipal Court… in New Jersey…” (1956) 10 Rutg. L.R. 647Google Scholar; and on the Gideon Case Stone, Social Dimensions, Ch. 6, §12. (3) Partly as a special case of (2), cf. the considerable work on environmental conditions in relation to juvenile delinquency, on which in the U.K. see notably Carr-Saunders, A. M., Mannheim, H., and Rhodes, L. C., Young Offenders (1942)Google Scholar; East, N., Stocks, P., and Young, H. T. P., The Adolescent Criminal (1942) (prepared under the auspices of H. M. Prisons Commissioners)Google Scholar; Wilkins, L. T., Delinquent Generations (1960) (under Home Office auspices)Google Scholar; Yablonsky, L., “…Law and Social Science in the Juvenile Court” (1962) 53 J. Crim. L., Crimin. and Pol. Sc. 426–36CrossRefGoogle Scholar. The impressive work of S. and E. Glueck in the United States is well known: see notably their 500 Criminal Careers (1939); Five Hundred Delinquent Women (1934); One Thousand Juvenile Delinquents (1934); Later Criminal Careers (1937); Juvenile Delinquents Grown Up (1940); Criminal Careers in Retrospect (1943). And see Glueck, S. (ed.), The Problem of Delinquency (1959)Google Scholar. Cf. Lewis, H., Deprived Children: The Mershan Experiment (1954)Google Scholar; Virtue, M. B., Family Cases in Court (1956)Google Scholar; Glueck, S., “Theory and Fact in Criminology” (1956) 7 J. Delinq. 29–109Google Scholar. And see Gardiner, G. (now Lord Gardiner, L. C.), “The Purposes of Criminal Punishment” (1958) 21 M.L.R. 222.CrossRefGoogle Scholar For a general censure of research derelictions in this area see Remington, F. J., “Criminal Justice Research” (1960) 51 J. Crim. L., Crimin. and Pol. Sc. 7–18CrossRefGoogle Scholar; and for other literature in relation to delinquents see Stone, Social Dimensions, Ch. 6, §24. (4) Cf. the question of efficiency of corporal punishment as a deterrent for crimes of violence on which the findings of fact of the Departmental Committee on Corporal Punishment in 1938 (Cmd. 5684) disagreed with the unanimous view of the King's Bench judges who believed it of value. On the indecisiveness, even after the Royal Commission of 1953, of the sociological indications as to capital punishment, see Hart, H. L. A., “Murder and…Punishment” (1957) 52 Northw. U.L.R. 433, esp. 457–61Google Scholar. On the U.K. 1957 Homicide Act see Prevezer, S., “The English Homicide Act…” (1957) 57 Columbia L.R. 624CrossRefGoogle Scholar. (5) The question what purposes are served by the law as to certain sex offences. See generally Drummond, I., The Sex Paradox…Sex and the Law (1953)Google Scholar; Radzinowicz, L., Sexual Offences (1957)Google Scholar; Grünhut, M. et al. , Sexual Crime Today (1960)CrossRefGoogle Scholar; Rees, T. and Usili, H.V., They Stand Apart… (1955)Google Scholar; Hammelman, H., Note (1958) 21 M.L.R. 68–72Google Scholar (esp. on the futility of either small fines or short imprisonment). The U.K. Wolf enden Report (Cmd. 247, 1957) recommending the removal of criminality from acts in private has been criticized as based on inadequate research findings. See besides Hammelman, supra, Mannheim, H., “Criminal Law and Penology” in Ginsberg, , 20th Century 264 ff., esp. 273–75Google Scholar. And see Cross, R., “Unmaking Criminal Laws” 1962) 3 Melb. U.L.R. 415–32, esp. 419–32, esp. 424–28Google Scholar (suicide, enthanasia, abortion); (6) similar questions as to other criminal laws touching protection of life: see ibid. and see Williams, Sanctity. (7) Traffic legislation in relation to incidence of injuries, which has been the subject of repeated inquiries since the Select Committee on Motor Traffic, 1912. See E. D. Weiss, cit. supra n. 34, esp. at 142. (8) Bankruptcy law and debtors: MacLachlan, J. A., …Law of Bankruptcy (1956)Google Scholar.

⁴⁸ See, e.g., as to anti-trust legislation Stone, Social Dimensions, Ch. 8, passim and materials there cited; as to privacy id. Ch. 5, §5. The question is of course a wider one than that of the limits of effective judicial action, as to which see Brandeis, J. in the International News Service Case (1918) 248 U.S. 215, 262 ff.Google Scholar

⁴⁹ These limits have become of almost ubiquitous concern in the continuing English debates on reform of the criminal law esp. as to capital punishment, penal flogging, sex offences. See the literature supra n. 47.

⁵⁰ See Pound, , “…Effective Legal Action” (1917) 27 Int. J. Ethics 150CrossRefGoogle Scholar; and cases and other materials collected Simpson-Stone, 2 Law and Society 1519–92, esp. 1523–33 (negligence actions); 1533–35, 1546–59 (emotions and abuse of action ability); 1537–46 (moral duty to act and Good Samaritanship), 1559–70 (stress with prevalent group conviction); 1571–73, 1579–86 (economic conflict); 1575–79 (prohibition problems). Cf. Cohen, B., Law and Tradition in Judaism (1959) 160–61Google Scholar.

^50a See Stone, Human Law and Human Justice (1965, here cited as “Stone, Human Justice”) Ch. 9, id., Social Dimensions, Ch. 4.

⁵¹ See J. Stone, Legal System and Lawyers' Reasonings (1964, here cited as “Stone, Legal System”) Chs. 6, 8.

⁵² Much of the literature is cited and discussed in Stone, Legal System Chs.. 6–8, and will be further examined in Stone, Social Dimensions, Ch. 14. See esp. Pound, “Judicial Decision”; Cardozo, Judicial Process; Isaacs, N., “How Lawyers Think” (1923) 23 Columbia L.R. 555CrossRefGoogle Scholar; Llewellyn, K. N., “Legal Tradition and Social Science Method” in Essays on Research in the Social Sciences (Brookings Institution, 1931) 89Google Scholar; Yntema, H. E., “The Rational Basis of Legal Science” (1931) 31 Columbia L.R. 925CrossRefGoogle Scholar; Patterson, E. W., “Can Law be Scientific” (1930) 25 Ill. L.R. 121Google Scholar; Nelles, W., “Towards Legal Understanding” (1934) 34 Columbia L.R. 862, 1041CrossRefGoogle Scholar; Introduction by Oliphant, H. and Hewitt, A. to Rueff, J., From the Physical to the Social Sciences, (transl. Green, H., 1929)Google Scholar; Allen, C. K., Law in the Making (6 ed. 1958) ciiiGoogle Scholar; Pollock, F., “Judicial Caution and Valour” (1929) 45 L.Q.R. 293, 294, 301–04Google Scholar; Keyser, C. J., “The Nature of the Doctrinal Function…” (1932) 41 Yale L.J. 713CrossRefGoogle Scholar; Cook, W. W., “Scientific Method and the Law” (1927) 13 A.B.A.J. 303Google Scholar; id., “‘Substance’ and ‘Procedure’” (1932) 42 Yale L.J. 333–36 335–38; Green, L., “The Duty Problem…” (1928) 28 Columbia L.R. 1014CrossRefGoogle Scholar; Frank, J., Law and the Modern Mind (1930)Google Scholar; Schroeder, T., “The Psychologic Study of Judicial Opinions” (1918) 6 Cal. L.R. 891Google Scholar; Lasswell, H. D., “Self-Analysis and Judical Thinking” (1930) 40 Int. Jo. Ethics 354CrossRefGoogle Scholar; Haines, C. G., “…In fluences in the Decisions of Judges” (1922) 17 Ill. L.R. 96Google Scholar. See also Stone, Province Ch. 7; Frank, Courtsy; Llewellyn, Tradition; Evershed, “Judicial Process”; and citations supra n. 29. Cf. on the Continent Gény, Science et Technique, id., Méthode, and R. Saleilles, Preface thereto, all discussed in Stone, Legal System Ch. 6, §§6 ff.; Ehrlich, E., Die Juristische Logik (1918)Google Scholar; “Die JurbtUche Logik” (1917) 115 Arch. civ. Pr. 125; “Sociology of Law” (1922) 36 H.L.R. 130. See also Translator's Preface by W. L. Moll in Ehrlich's Sociology vii ff.; Ross, A., Theorie die Rechtsquellen (1929)Google Scholar. And see Stone, Legal Systems Chs. 6–8 generally and the literature there cited. A compact selection from some of the above materials is collected in Simpson-Stone, 2 Law and Society 1386–1437.

⁵³ See Stone, Legal System, 37–41, and Chs. 6–8, and Stone, Social Dimensions Ch. 14. See also Brown, J. R., “Electronic Brains…” (1961) 71 Yale L.J. 236Google Scholar, and Stone, J., “Man and Machine in the Search for Justice” (1964) 16 Stanford L.R. 515–60CrossRefGoogle Scholar, and the mass of work there cited and assessed. And see the remarkable “Handbook of Recommended Procedures for the Trial of Protracted Cases” (1960) 25 F.R.D. 351, adopted by the U.S. Judicial Conference, 1960. And see the discussion in Stone, Social Dimensions, Ch. 14, §14.

⁵⁴ Cf. Ehrlich, Sociology cxxi, esp. 499–501. For notable examples see 1 Wigmore on Evidence §865 (confessions); Hall, J., Theft, Law and Society (1935, 2 ed. 1952)Google Scholar, and the same author's later discussions with bibli, in his “…integrative Jurisprudence” (1964) Univ. of Cin. L.R. at 22–53 (Robert S. Marx Lecture, Univ. of Cincinnati) at 2–20 (adaption of the law of larceny over several centuries to changing social conditions); the monumental 3 volumes of Radzinowicz, Criminal Law; Corwin, E.S., The “Higher Law” Background of American Constitutional Law (1955)Google Scholar; Kauper, P. G., Frontiers of Constitutional Liberty (1956)Google Scholar; Fifoot, Mansfield; and the masterly works of Willard Hurst cited infra next footnote. Cf. the stocktaking of the judicial role in penal reform by G. Gardiner (now Lord Gardiner L.C.) and N. Curtis-Raleigh in (1949) 65 L.Q.R. 196, contrasting the view in Birkett J.'s Clarke Hall lecture Our Criminal Justice (1948) 30. On the Continent, see, e.g., Dohring, D., Geschichte der Deutschen Rechtspflege seit 1500 (1953)Google Scholar; Salvioli, G., Storia del Diritto Italiano (8 ed. 1921)Google Scholar. And cf. Schacht, J., Sociological Aspects of Islamic Law (1963)Google Scholar. And see, e.g., on particular points Fridman, G.H.L., “Waiver of Tort” (1955) 18 M.L.R. 1CrossRefGoogle Scholar; D. Seaborne-Davies, article cited supra n. 13, at 269. See Boorstin, D. J., “Tradition and Method in Legal History” (1941) 54 H.L.R. 424, 433–36CrossRefGoogle Scholar.

⁵⁵ See notably Hurst, J. Willard, The Growth of American Law… (1950)Google Scholar; id., Law and the Conditions of Freedom in the Nineteenth Century United States (1956); id., Law and Social Process in United States History (1960); id., Law and Economic Growth (1964); id., Justice Holmes on Legal History (1964).

⁵⁶ As to Hartz and Brebner, see Stone, Human Justice Ch. 4, § 11; and Stone, Social Dimensions, Ch. 7, §17.

⁵⁷ See the Preface to his Law and Economic Growth (1964) viii-ix. And cf. Ehrlich, , Sociology 495Google Scholar, quoted supra n. 28.

⁵⁸ Op. cit. xi-xii. Cf. the plea of Taubman, J., “Law and Sociology in the Control of Small Groups” (1959) 13 Univ. of Toronto L.J. 23CrossRefGoogle Scholar, for attention by lawyers to the sociologists' analysis of small groups.

⁵⁹ See Ch. 7 of Stone, Province and of id., Legal System, Ch. 7.

⁶⁰ Pound, R., “Individualisation of Justice” (1938) 7 Ford. L.R. 153Google Scholar; id., Philosophy of Law lect. iii; Pound, R., “Enforcement of Law” (1908) 20 Green Bag 401Google Scholar; Pound, R., “Administrative Application of Legal Standards” (1919) 44 A.B.A. Rep. 445Google Scholar; Llewellyn, “Realism” 1240–41; Frank, J., Law and the Modern Mind (1930)Google Scholar on which see Llewellyn, K. N., “Legal Illusion” (1922) 31 Columbia L.R. 82, 87–90CrossRefGoogle Scholar; Isaacs, N., “The Limits of Judicial Discretion” (1923) 32 Yale L.J. 339CrossRefGoogle Scholar. On the moral aspect see Cohen, M. R., “Moral Aspects of the Criminal Law” (1940) 49 Yale L.J. 987CrossRefGoogle Scholar, and the debate on the A.B.A. Draft Youth Correction Act in (1942) 9 L. and C. Prob. For France see Saleilles, R., Individualisation of Punuhment (transl. Jastrow, R. S., 1911, with Intro. by Pound, R.)Google Scholar; Capitani, H. and Lambert, E., Espèces Choisies Empruntées à la Jurisprudence (1927)Google Scholar; Alexeff, , “L'Etat, le Droit, et le Pouvoir Discrétionnaire des Autorités Publiques” (1929) 3 Rev. Int. T. du Droit, 195Google Scholar. On individualization of treatment in English prisons see Radzinowicz, L., “Modern English Prison System” (1939) 3 M.L.R. 121, 127–30CrossRefGoogle Scholar (giving English prison rules and practice); Page, L., Crime and the Community (1939)Google Scholar. It has been suggested that inadequacy of expert knowledge of prisoners explains judicial reluctance to impose preventive detention under the Prevention of Crimes Act, 1908. (See Mannheim, H., Note (1938) 2 M.L.R. 78, 80)Google Scholar. And see Glueck, S., “Psychiatric Examination of Persons Accused of Crime” (1926) 36 Yale L.J. 632, 633.CrossRefGoogle Scholar

⁶¹ See Stone, Social Dimensions, Chs. 14, 15; G. Stone, “The Twentieth Century Administrative Explosion and After” op. cit., supra n. 13. This line of Ihering's thought was carried on in Germany by the so-called Interessenjurisprudenz, on which see Stone, Legal System, Ch. 6, § 16.

⁶² See the Royal Commission on Capital Punishment, 1949–1953, Cmd. 8932, and on this aspect Williams, J. E. Hall, Note (1954) 17 M.L.R. 57, esp. 62–64Google Scholar; id., “Jury Discretion in Murder Trials” (1954) 17 M.L.R. 314–28.

⁶³ See Edwards, J.LI.J., “Automatism and Criminal Responsibility” (1958) 21 M.L.R. 374–86CrossRefGoogle Scholar; Devlin J. in R. v. Kemp [1957] 1 Q.B. 399, and Hill v. Baxter [1958] 1 Q.B. 277; and see U.K. Homicide Act, 1957, s. 2.

⁶⁴ The more flexible insanity rule in Durham v. U.S. (1954) 214 F. 2d 862 (D.C.) still of course remains controversial, and makes its way very slowly. See Krash, A., “Durham Rule and Judicial Administration…” (1961) 70 Yale L.J. 905CrossRefGoogle Scholar; Hall, J., “Mental Disease and Criminal Responsibility…” (1958) 33 Ind. L.J. 212Google Scholar; and the Symposium in (1958) 4 Catholic Lawyer 294, (1959) 5 id. 3 Cf. generally on the impact of psychiatry Karpman, B., “On Reducing Tensions and Bridging Gaps between Psychiatry and the Law” (1957) 48 J. Crim. L., Crimin. and Pol. Sc. 164CrossRefGoogle Scholar; Nice, R. W. (ed.), Crime and Insanity (1958)Google Scholar; and (extending beyond the merely criminal purview) Symposia in (1956) 29 Temp. L.Q. 233–336, (1959) 39 Boston U.L.R. 157–205, and (1960) 9 C.-M.L.R. 399; and see Lasswell, H. D., “Impact of Psychiatry upon Jurisprudence” (1960) 21 Ohio St. L.J. 17Google Scholar. And see Stone, Social Dimensions Gh. 6, § 24.

⁶⁵ See, e.g., Glueck, E. T., “Spotting Juvenile Delinquents: Can it be Done?” Probation Quarterly (Sept. 1956) 7–13Google Scholar; Mannheim, H., and Wilkins, L. T., Prediction Methods in Relation to Borstal Training (1955, sponsored by U.K. Home Office, under Criminal Justice Act, 1948, s. 77)Google Scholar. And even of “future offenders”: see S. and Glueck, E., “Early Detection of Future Offenders” (1956) 47 J. Crim. L., Crimin. and Pol. Sc. 174–82CrossRefGoogle Scholar.

⁶⁶ See, e.g., Ohlin, L. E., Selection for Parole (1951)Google Scholar; Glueck, S., The Sentencing Problem (1956Google Scholar, address to Judicial Conference of Third Circuit (U.S.)).

⁶⁷ See, e.g., the Australian Matrimonial Causes Act, 1959, esp. s. 71, Stone, Social Dimensions, Ch. 6 § 10.

⁶⁸ See Stone, Human Justice Ch. 10, § 7.

⁶⁹ For some current conflicts between expert and legal opinion see Report of the Departmental Committee on Corporal Punishment (1938) Cmd. 5684, 33 (rejecting phychoanalytic evidence of sadistic drive behind agitation), and the psychologist's criticism of the Report of the Royal Commission of Capital Punishment, in E. Glover, 4 Br. J. Delinq. 162–68, id., “Psychiatric Aspects of the Report…” (1954) 17 M.L.R. 328–85 (Dr. Glover is Director of Research, Institute of Psychiatrie Analysis). And see Mannheim, H. in Ginsberg, , 20th Century 277 ff.Google Scholar; Alexander, F. and Staub, H., The Criminal, the Judge and the Public (1956)Google Scholar; and Mannheim, H., Criminal Justice and Social Reconstruction (1946)Google Scholar, notable for its use of economic materials.

⁷⁰ See Stone, Social Dimensions Ch. 6, § 24.

⁷¹ Wootton, , Social Pathology 325 ff. and passimGoogle Scholar.

⁷² See Grünhut, M., Juvenile Offenders before the Courts (1956)Google Scholar.

⁷³ Cf. Stone, Human Justice Ch. 8, § 2.

⁷⁴ Cf. the current survey of the American legal profession, of which see the numerous items listed in Smith, R. H., “Survey of the Legal Profession…” (1953) 39 A.B.A.J. 548Google Scholar. And see Blaustein, A. P., Porter, C. D. and Duncan, C. T., The American Lawyer… (1954)Google Scholar; Porter, C. D., “Surveying the Legal Profession…”(1949) 32 J. Am. J. Soc. 134Google Scholar; Brosman, P., “Bench and Bar:…Objective Appraisal” (1949) 23 Tulane L.R. 499Google Scholar. These last two writers detect the following underlying hypotheses of those responsible for the survey: (1) Every American, rich or poor, is entitled to services of a lawyer. (2) A lawyer's services must be diversified. (3) Lawyers have special aptitudes for politics and administration at all levels. (4) Lawyers must share in selecting judges and making judicial rules. (5)Practitioners before administrative boards should be lawyers. (6) Law school objectives need clarification. (7) Admission requirements in most States require review. (8) The canons of ethics require stricter enforcement. (9) Better organization can improve and cheapen legal services. (10) Competing unauthorized practice, e.g., by banks, or tax bureaux, should be stopped. (11) Professional improvement should proceed through the organized bars.

⁷⁵ On the vast number of corporation “house” counsel, their knowledge of all aspects of the particular enterprise, and the value of this to other lawyers, see Smith, S. G., “The Lawyer in the Business…World” (1963) 36 A.L.J. 385, 368–77Google Scholar. And see Gossett, vW. T., “The Role of the Corporation Counsel,” in 2 Tucker Lectures 190–208Google Scholar.

⁷⁶ See, e.g., in the general spirit of this approach, Rostov, E. V., Planning for Free dom… (1961)Google Scholar; McDougal, M. S. and Lasswell, H. D., “Legal Education and Public Policy” (1943) 52 Yale L.J. 203Google Scholar. A. A. Berle has ventured (review cited infra last n., at 431–32) that if “top-range” corporation lawyers had been consulted before the steel price crisis of 1962 both the incident and the President's intervention would have been avoided.

⁷⁷ See Stone, H. F., “The Public Influence of the Bar” (1934) 48 H.L.R. 1CrossRefGoogle Scholar; Levy, Corporation Lawyer, on which see Berle, A. A., Book Review (1962) 76 H.L.R. 430CrossRefGoogle Scholar. Proposals for fixing specialist qualifications have, however, not so far matured.

⁷⁸ Levy, , Corporation Lawyer 119 ff., 150–51Google Scholar, instances lawyers' achievements in the thirty years since the Wagner Act in using collective bargaining to create and virtually standardize for each different kind of plant a kind of “little constitution” with provisions for rule-making, adjudication and executive enforcement. Cf. in Canada Palmer, E., “The Remedial Authority of Labour Arbitrators” (1960) 1 Curr. L. and S.P. 125Google Scholar.

⁷⁹ Hart-Sacks, , Legal Process 207–209Google Scholar.

⁸⁰ And see generally Brown, L. M., “The Law Office—A Preventive Law Laboratory” (1956) 104 Univ. of Pa. L.R. 940CrossRefGoogle Scholar.

⁸¹ H. F. Stone, cit. supra n. 76, at 9–10.

⁸² In 1958 of the 262,320 lawyers in the U.S. listed in the Martindale-Hubbell census, 188,955 were in private practice, 24,245 were in government positions, 7,910 were in judicial office, 18,911 held salaried positions in private industry, 1,504 were in educational positions. (These figures come from Jeffery, C. R., “The Legal Profession” in Davis, F. J. et al. (ed.), Society and the Law 313 at 317.)Google Scholar In Britain in 1956, central government departments employed only 663 lawyers (309 barristers, 354 solicitors). See Lawyers in the Government Service (1956), quoted J. A. G. Griffith, loc. cit. infra n. 87.

⁸³ Cf. the admirable outline in Gower, L. C. B. and Price, L., “The Profession and Practice of the Law in England and America” (1957) 20 M.L.R. 317CrossRefGoogle Scholarpassim, esp. 326–27.

⁸⁴ Ibid.Cf. Pedrick, W. H., “Tax Practice and the Legal Profession” (1957) 31 A.L.J. 267, 278–79Google Scholar.

⁸⁵ Barwick, G. E., “…Control of Restrictive Trade Practices…” (1963) 36 A.L.J. 363, 375Google Scholar.

⁸⁶ Hart-Sacks, , Legal Process 198–206Google Scholar.

⁸⁷ From the 71st to 75th Congresses lawyers made up between 61% and 75% of Senate Members, and between 56% and 65% of House members, and since 1900 a quarter of all State legislators have been lawyers. In England 128 lawyers were among the 630 M.P.'s elected in October 1959. See A. P. Blaustein, C. D. Porter and C. T. Duncan, cited supra n. 74, at 97; Griffith, J. A. G., “Lawyers in the Public Service” (1961) 14 J. Leg. Ed. 13, at 13–14Google Scholar.

⁸⁸ The latest in its series of international conferences on the subject was in Washington in 1965. And cf. Clark, G. and Sohn, L.B., World Peace through World Law (1958)Google Scholar.

⁸⁹ We refer to the White House Conference of 200 leading lawyers summoned in June 1963. Cf. the earlier reproaches referred to in Stone, , Legal Education and Public Responsibility (1959) 21–24Google Scholar (a report and analysis of the Boulder Conference on the Education of Lawyers for their Public Responsibilities, 1956). (Here cited as “Stone, Public Responsibility”.)

⁹⁰ Id. 261–62. Cf. Justice Frankfurter, address to Harvard Society of Illinois, 28 April, 1955, urging support for “theoretical study…in the sense of dealing with a problem…not in an immediate, in a narrow, in a compulsively practical way, but…in the long, long arduous task by which difficult problems have light shed upon them by men who give their lives to understanding the problems.”

⁹¹ See Stone, , Public Responsibility, esp. 15 ff., 359Google Scholar.

⁹² See Stone, , Public Responsibility 112 ff.Google Scholar for a fuller development.

⁹³ We here follow closely id. 19. And see the Boulder Conference Statement id. 356–59; this writer's Epilogue, 281–355; general analysis 47–76, 98–184; and the discussion of the problem of indoctrination 185–203.

⁹⁴ See, following after the Boulder Conference, H. R. Sacks, “Education for Professional Responsibility…” (1960) 46 A.B.A.J. 1110, outlining a 7-year project as sisted by a Ford Foundation grant of $800,000. And see the Reports cited infra n. 103.

⁹⁵ For bibli, see Sullivan, F. C., A Bibliography of Materials on Legal Education (N.Y.U. School of Law) (1960)Google Scholar; Elliott, S. D. and Leflar, R. A., Some Materials on Legal Education (1955)Google Scholar. And see generally, the Journal of Legal Education, published by the Association of American Law Schools (here cited as A.A.L.S.); Griswold, E. N., “The Future of Legal Education” (1953) 5 J. Leg. Ed. 438Google Scholar; id., “Educating Lawyers for a Changing World…” (1951) 37 A.B.A.J. 805; McDougal, M. S., “The Law School of the Future: From Legal Realism to Policy Science in the World Community” (1947) 56 Yale L.J. 1345CrossRefGoogle Scholar; Vanderbilt, A. T., “The Future of Legal Education…” (1957) 43 A.B.A.J. 207Google Scholar; Embree, W. I., “How Far Should Lawyers be Educated? A Report on the Yale Law Curriculum” (1951) 37 A.B.A.J. 655Google Scholar; Sacks, H. R., “Human Relations Training for Law Students and Lawyers” (1959) 11 J. Leg. Ed. 316Google Scholar.

⁹⁶ See Vanderbilt, A. T., “A Report on Pre-Legal Education” (1950) 25 N.Y.U.L.R. 199Google Scholar; Report of the Committee on Pre-Legal Education: A.A.L.S. Proceedings (1952) 99 ff.; “A.A.L.S. Pre-Legal Education: A Statement of Policy” (1953) 39 A.B.A.J. 889.

⁹⁷ See Cavers, D. F., “‘Skill’ and Understanding” (1949) 1 J. Leg. Ed. 295Google Scholar. And see Stone, Social Dimensions Ch. 14, § 32.

⁹⁸ Stone, Public Responsibility 259–64. And see id. 234–356 for a survey of the main kinds of relevant curriculum proposals, and 403–13 for Professor R. E. Matthews' consequentially designed special course.

⁹⁹ See A.A.L.S. Report on Formal or Graduate Continuing Legal Education, Program and Reports (1958) 65, id. (1959) 40; Horowitz, H. W., “Graduate Study for the Practising Lawyer” (1951) 4 J. Leg. Ed. 196Google Scholar.

¹⁰⁰ See Vanderbilt, A. T., “The Responsibilities of our Law Schools…” (1950) 3 J. Leg. Ed. 207Google Scholar.

¹⁰¹ See Stone, Legal System, Ch. 1, §10.

¹⁰² Thus, see Eron, L. D. and Redmount, R. S., “The Effect of Legal Education on Attitudes” (1957) 9 J. Leg. Ed. 431Google Scholar.

¹⁰³ Stone, , Public Responsibility 38Google Scholar. For the continuing concern here see Joint Committee on Continuing Legal Education (Arden House Conference 1958), Report on Continuing Legal Education for Professional Competence and Responsibility (1959), and the Report of the A.A.L.S. Committee, A.A.L.S. Proceedings, 1959, 62.

¹⁰⁴ Stone, , Public Responsibility 163–84.Google Scholar

¹⁰⁵ For discussion of some of the difficulties see id. 24 ff. (as to reaching and communicating on values sought); 30 ff. (as to dogmatic over-generalizations when local conditions vary); 163 ff. (as to priorities); 185–203, 296 ff. (as to indoctrination and freedom of thought and teaching); 286 ff. (as to blockages from emotional involvement); 235–80 (as to conflict in pedagogical objectives); 348–52 (as to corruptions from the environment of practice).

¹⁰⁶ As the present writer already ventured to think in 1946. See Stone, , Province 414–17Google Scholar. We do not here undertake the invidious task of apportioning credit as between work traceable to the realists as a distinct group, a task which in any case seems impossible. Certainly as Garlan (Legal Realism 8) and Llewellyn (“Some Realism about Realism” (1931) 44 H.L.R. 1222) claimed, the realist contribution to concrete problems has been impressive.

¹⁰⁷ Garlan, op. cit., 8. And see the much fuller listing in Tarello, G., Il Realismo Giuridico Americano (1962) 120–22Google Scholar. This work is an admirable study of all aspects of its subject, with good bibli.

¹⁰⁸ See by Llewellyn, K. N., “Across Sales on Horseback” (1939) 52 H.L.R. 725CrossRefGoogle Scholar; “Contract—Institutional Aspects” in 4 Encyc. Soc. Sc. 329–39; “The Rule of Law in…Contract” (1938) 47 Yale L.J. 1243; “Our Case Law of Contract-Offer and Acceptance” (1938) 48 Yale L.J. 497; and by Corbin, A.L., “Contracts for the Benefit of Third Persons” (1930) 46 L.Q.R. 12Google Scholar, and the impressive Corbin on Contracts (8 vols., 1950–51).

¹⁰⁹ Many examples will be found in Stone, Legal System Chs. 7–8 passim.

¹¹⁰ See Arnold, T. W., “Criminal Attempts—the Rise and Fall of an Abstraction” (1929) 40 Yale L.J. 53CrossRefGoogle Scholar; Hall, J., “Criminal Attempt…” (1940) 49 Yale L.J. 788, esp. 814 ff., 828Google Scholar.

¹¹¹ Cook, W. W., “Act Intention and Motive in the Criminal Law” (1916) 26 Yale L.J. 645CrossRefGoogle Scholar.

¹¹² See, e.g., on criminal law generally Hall, op. cit. supra n. 54.

¹¹³ The Cleveland Survey of 1921 directed by Pound and Frankfurter is both a pioneer and a classic of the sociological approach. See Pound, R. and Frankfurter, F. (eds.), Criminal Justice in Cleveland (1922), esp. Pound, R., “Criminal Justice and the American City” at 559–652Google Scholar.

¹¹⁴ Corwin, E., “The Higher Law Background in American Constitutional Law” (1929) 42 H.L.R. 365CrossRefGoogle Scholar; id., The Twilight of the Supreme Court (1934); Hale, R. L., “Our Equivocal Constitutional Guarantees” (1930) 39 Columbia L.R. 563CrossRefGoogle Scholar; Llewellyn, K. N., “The Constitution as an Institution” (1934) 34 Columbia L.R. 1CrossRefGoogle Scholar; McGovney, D. O., “A Supreme Court Fiction—Corporations in the Diverse Citizenship Jurisdiction” (1943) 56 H.L.R. 853CrossRefGoogle Scholar; Hale, R.L., “Does the Ghost of Smyth v. Ames Still Walk?” (1942) 55 H.L.R. 1116CrossRefGoogle Scholar. And see Stone, Human Justice, Ch. 3, §§8 ff.

¹¹⁵ Arnold, T. W., “…Substantive Law and Procedure…” (1932) 45 H.L.R. 617CrossRefGoogle Scholar; Cook, W. W., “Substance and Procedure…” (1932) 42 Yale L. J. 358Google Scholar.

¹¹⁶ Isaacs, N., “Law and Facts” (1922) 22 Columbia L.R. 1CrossRefGoogle Scholar.

¹¹⁷ Llewellyn, K. N., “Behind the Law of Divorce” (1932) 32 Columbia L.R. 1281CrossRefGoogle Scholar, (1933) id. 244 Cf. in England, Herbert, A.P., Holy Deadlock (1934)Google Scholar. Cf. the symposium on alimony in (1939) 6 L. and C. Prob. Cf. on public liability in tort the work surveyed by P. H. French and E. Borchard in (1942) 9 L. and C. Prob. 234 and 282 and Stone, Social Dimensions Ch. 6, § 14.

¹¹⁸ For citations on these and other examples see Stone, Province 408–14 passim.

¹¹⁹ E.g., Stone, J., “Burden of Proof and the Judicial Process” (1944) 60 L.Q.R. 262Google Scholar; id., “Res Gesta Reagitata” (1939) 55 L.Q.R. 66.

¹²⁰ See, e.g., Williams, G. L., “Doctrine of Repugnancy” (1943) 59 L.Q.R. 343Google Scholar.

¹²¹ See, e.g., as to execution of judgments, R. W. Turner, cited supra n. 13.

¹²² See, e.g., Lord Wright cited in Stone, Legal System, Ch. 7, §10.

¹²³ See e.g., Williams, G. L., “Partial Performance of Entire Contracts” (1941) 57 L.Q.R. 373, 490Google Scholar; id., “The End of Chandler v. Webster” (1942) 6 M.L.R. 46; R. G. McElroy and G. L. Williams, “The Coronation Cases” (1941) 4 id. 241, esp. 258–60; 5 id. 1.

¹²⁴ See, e.g., many articles of W. Friedmann and G. L. Williams, cited Stone, Legal System Ch. 7, passim; Havard, J., “Reasonable Foresight of Nervous Shock” (1956) 19 M.L.R. 478–97CrossRefGoogle Scholar.

¹²⁵ See, e.g., J. Stone, “Burden of Proof…” cit. supra n. 119; Jennings, W. I., “The Courts and Administrative Law…” (1935) 49 H.L.R. 426Google Scholar; Jennings, W. I., “Judicial Process at its Worst” (1937) 1 M.L.R. 111CrossRefGoogle Scholar.

¹²⁶ See citations supra n. 13, and cf. SirWilson, Arnold and Levy, H., Industrial Insurance (1938)Google Scholar and Workmen's Compensation (1939).

¹²⁷ See, e.g., Robertson, A. H., Characterisation in the Conflict of Laws (1940)Google Scholar, with which however cf. the powerful critique in Cook, W. W., “Characterisation…” (1941) 51 Yale L.J. 191CrossRefGoogle Scholar. For American work see W. W. Cook's series listed id. 191.

¹²⁸ See the citations supra nn. 41–42, 47, 54–60, 62, 66, 69, 71, and those infra n. 130 on the Cambridge Committee on Criminal Science. And cf. Radzinowicz, L., “Evolution of the Modern English Prison System” (1939) 3 M.L.R. 121CrossRefGoogle Scholar; “International Collaboration and Criminal Science” (1942) 58 L.Q.R. 110; Page, L., Crime and the Community (1938)Google Scholar; Clemmer, D., Prison Community (1930)Google Scholar; Grünhut, M., Penal Reform: A Comparative Study (1948)Google Scholar; Williams, G. L., Criminal Law: The General Part (2 ed. 1961)Google Scholar.

¹²⁹ See generally literature cited Stone, Social Dimensions Ch. 13, §§ 11–13. (“rule of law” and “conventions”), Ch. 14, §§ 15–26 (administrative law). Marsh, N. S., “The Rule of Law as a Supra-National Concept”, in Guest, A. G. (ed.), Oxford Essays in Jurisprudence (1961) 223 at 223Google Scholar suggests that the overhauling of Dicey's doctrine of the rule of law was a “‘rolled-up plea’…in reverse: in so far as the Rule of Law purported to be a statement of fact it was untrue and in so far as it expressed a value-judgment it was unsound.” He thinks that a reaction has now set in. Yet he is also concerned to stress that Dicey himself later modified his doctrine, in his “Droit Administratif in Modern French Law” (1901) 17 L.Q.R. 302 and in his “The Development of Administrative Law in England” (1915) 31 L.Q.R. 148. And see Stone, , “The Twentieth Century Administrative Explosion and After” (1964) 52 Cal. L.R. 513–42CrossRefGoogle Scholar (Walter Perry Johnson Lecture, 1964).

¹³⁰ First Report (Cmd. 4540, Mch. 1934) on the actio personalis maxim; Second Report (Cmd. 4546, Mch. 1934) on recovery of interest in civil proceedings; Third Report (Cmd. 4637, July 1934) on contribution between joint tortfeasors; Fourth Report (Cmd. 4770, Dec. 1934) on liability of husband and wife for the wife'storts; Fifth Report (Cmd. 5334, Dec. 1936) on statutes of limitations; Sixth Report (Cmd. 5449, May 1937) on the Statute of Frauds and the doctrine of consideration; Seventh Report (Cmd. 6009, May 1939) on the rule in Chandler v. Webster [1904] 1 K.B. 493; Eighth Report (Cmd. 6032, June 1939) on contributory negligence. For an authoritative brief analysis of the first four reports see Wright, Essays 351. Such criticisms of the Committee's work as have been made (see, e.g., G. L. Williams' articles cited supra n. 123; Editorial Board (1937) 1 M.L.R. 1), are best understood in the light of Savigny's analysis of the prerequisites of long continued and deep research over generations as a basis for good legislation. They re-emphasize the heavy stress on the urgency of legal research development in the Report of the Legal Education Committee (Chairman Lord Atkin) (Cmd. 4663, 1934) 13–15, 16–17.

¹³¹ Tarello, G., Il Realismo Giuridico Americano (1962), 69–116Google Scholar.

¹³² Id. 117–50.

¹³³ Id. 151–220. On Frank's work on “fact-uncertainty” see Stone, Social Dimensions Ch. 14, §§ 12–13, 24–26.

¹³⁴ See Llewellyn, , Tradition 508Google Scholar; Cf. at 510. So cf. with the present view that apart from mood the specific features of realism were a transient feature of the ,30's, Arnold, T., “Judge Jerome Frank” (1958) 24 Univ. of Chic. L.R. 633Google Scholar, 634 (referring to Frank's Law and the Modern Mind (1930) 252): “Realistic Jurisprudence is a good medium for a sick and troubled society. The America of the early 1930's was such a society.” It is true that the main stream of “American realist” work becomes only a trickle after the middle, thirties. But see Friedmann, cit. supra n. 43, at 7, suggesting that this is because the “essential postulates” of realism have in the U.S.A. become “part and parcel of common legal practice and writing.” For other general assessments of American realism see Sharp, M. R. “Realism…” (1953) 20 Univ. of Chic. L.R. 648Google Scholar; Horvath, B., “…Legal Realism and Idealism” 1954) 48 Northw. U.L.R. 693–713Google Scholar; Friedrich, G. J., “Remarks on Llewellyn's View of Law…” (1935) 50 Pol. Sc. Qu. 419–31CrossRefGoogle Scholar; Gilmore, G., “Legal Realism: Its Cause and Cure” (1961) 70 Yale L.J. 1057CrossRefGoogle Scholar. And see on the untenability of the early exaggerated anti-conceptualism, Lloyd, Jurisprudence 242.

¹³⁵ Pockets of last-ditch resistance to the invasion of extralegal concerns are of course still found. But it has been a distinguished civil lawyer who has written the book of The Resistance. See G. Ripert, Les Forces Créatrices du Droit (1955). Professor Ripert sees as only seduction the offer of sociologists to welcome lawyers to the ranks of scientists, if only they will become analysts of les moeurs rather than guides of men (29–30). Lawyers must reject this, for laws are necessary for social life, which are not a changeable product of morals and customs (48–49). And see on what he means by “creative forces,” 84–86, reading this with 30, n. 12. This is very different from the analysis of “Factors of Resistance to the Resources of the Behavioral Sciences” as seen by J. Cohen, (1959) 12 J. Leg. Ed. 67. He points rather to (1) the inadaptability of their general theorems to specific practical problems; (2) their tentativeness in relation to predication; (3) fears concerning the lawyer's ability to use the ideas and mass of material for his particular needs.

¹³⁶ In addition to the works elsewhere cited (esp. supra n. 34), see Cardozo, B. N., “A Ministry of Justice” (1921) 35 H.L.R. 113CrossRefGoogle Scholar; Glueck, S., “The Ministry of Justice and the Problem of Crime” (1926) 4 Amer. Rev. 139Google Scholar; Note, “The Ministry of Justice and the Statute Law Commission” (1858) 5 Law Mag. and R. (2 ser.) 352; Yntema, H. E., “Legal Science and Reform” (1934) 34 Columbia L.R. 207, 215–30CrossRefGoogle Scholar; W. F. Willoughby, op. cit. supra n. 46, at 264–80; Shientag, B., “A Ministry of Justice in Action…N.Y. State Law Revision Commission” (1937) 22 Cornell L.Q. 183Google Scholar; Symposium, “A Ministry of Justice” (1930) 8 N. Car. L.R. 328, esp. J. G. Edwards, “Ministry of Justice in France” at 328–34; Bacon, H. S., “On a Ministry of Justice” (1935) 22 Va. L.R. 175CrossRefGoogle Scholar. And see the key works of Pound discussed infra passim, esp. article cited infra n. 173, and Vanderbilt, A. T., The Idea of a Ministry of Justice Considered and its Functions Distributed 1955 at 32Google Scholar; also printed in (1955) 78 N.Y. St. Bar A. Rep. 152). Cf. in England, Report of the Committee on the Machinery of Government (Lord Haldane's Committee), 1918 (Cmd. 9230), 6, 16, 63, 74; Laski, , Politics 382, 572–82Google Scholar; Birkenhead, Lord, 1 Points of View (1922) 92–130Google Scholar; and works cited supra n. 41 (under (2)), esp. of Mullins, C., Hart, H., and Jackson, R. M.. On the related “Judicial Council” movement for continuing oversight of procedural and judicial organization questions see Note (1929) 42 H.L.R. 817Google Scholar; bibli. by Moylan, H. S. in (1940) 2 Annual Handbook, National Conference of Judicial Councils 48Google Scholar; and articles by J. W. McClendon, id. 25, J. A. Finch (1941) 3 id. 25, Sunderland, E. R. (1941) 35 Am. Pol. Sc. R. 925CrossRefGoogle Scholar, and L. S. Saxe, id. 933.

¹³⁷ Birkenhead, Lord, 1 Points of View (1922) 108 ff.Google Scholar; Hewart, Lord, The New Despotism (1929) 110–11Google Scholar; Schuster, Lord, “Problems of Legal Administration” (1937) 2 Politica 239, 354–55Google Scholar.

¹³⁸ Gardiner, G. (now Lord Gardiner L.C.), “The Machinery of Law Reform…” (1953) 69 L.Q.R. 46Google Scholar.

¹³⁹ They are sometimes constrained to make a virtue of the fact that despite its “il logicality” the Lord Chancellor's office works. See, e.g., Goodhart, A. L., Law Reform (1952, Holdsworth Club Lecture)Google Scholar.

¹⁴⁰ Nash, T. A., 1 Life of Lord Westbury (1888) 190Google Scholar, quoted A. T. Vanderbilt, op. cit. supra n. 136, 10.

¹⁴¹ Cmd. 9230, 1918, p. 4. And see on the miscellany of the L.C.'s functions id. 64 ff.; Schuster, Lord, “The Office of the Lord Chancellor” (1949) 10 Cambr. L.J. 175CrossRefGoogle Scholar, id., “Problems of Legal Administration” (1937) 2 Politica 239; Johnson, K. M., “The Lord Chancellor…”(1929) 13 J. Am. J. Soc. 52Google Scholar.

¹⁴² Cf. the discouragement in the 2 ed. of Jackson, R. M., The Machinery of Justice in England (1953) 348, 353Google Scholar.

¹⁴³ On the compounding of the problem in terms of sheer bulk of reports, statutes etc. see the statistics collected in Stone, Legal System Ch. 1 13, 39–40. For a survey of post-World War II problems see Williams, G. L., The Reform of the Law (1951)Google Scholar.

¹⁴⁴ See infra Section XIII. On the use of public opinion polls in this connection see E. Noelle et. al. in International Social Science Journal, Communication 283 esp. 290.

¹⁴⁵ The Hawaiian Legislative Reference Bureau created in 1943 employs 14 lawyers and social scientists for legislative fact-finding, drafting, and advising. It reports, in order to minimize political pressures, to the President of the (State) University of Hawaii, differing in this from most State Legislative Councils. Hawaii also has an Office of Reviser of Statutes, and from 1941 to 1959 had a Commission to Promote Uniform State Laws. There are Legislative Councils in about 30 American States. See Davey, H. H., “The Legislative Council Movement, 1933–1953” (1953) 47 Am. Pol. Sc. R. 785–97CrossRefGoogle Scholar; Guild, F. H., “Legislative Council…” (1949) 22 State Government 217Google Scholar.

¹⁴⁶ And see also infra nn. 178–182.

¹⁴⁷ The best known American Commissions are in N.Y. and Wisconsin. See Vanderbilt, op. cit. 28; Stone, J. F. and Pettee, G. S., “Revision of Private Law” (1940) 54 H.L.R. 221Google Scholar.

¹⁴⁸ See the appreciation of the N.Y. Commission's work in Hart-Sacks, , Legal Process 809–17Google Scholar, esp. in relation to the courts.

¹⁴⁹ See A. T. Vanderbilt, op. cit. 4 ff., for this and other statistics, which are of course already well overtaken by continued growth. See Stone, Legal System Ch. 1 § 10.

¹⁵⁰ See the discouraging account of the earlier Committee by the U.K. Law Revision Committee Secretary, Foster, J., “Law Revision” (1938) 2 M.L.R. 14CrossRefGoogle Scholar. After World War II the U.K. Committee was renamed “Law Reform Committee”. Some of the statutory fruits are the Law Reform (Enforcement of Contracts) Act, 1954 (repealing s. 4 Statute of Frauds); Hotel Proprietors Act, 1956; Occupiers Liability Act, 1957.

¹⁵¹ Cf. Vanderbilt, op. cit. 7.

¹⁵² See A. T. Vanderbilt, op. cit. supra n. 5, at 61-64; Pound, R., “…Rules of Court in Jersey” (1952) 66 H.L.R. 28CrossRefGoogle Scholar; Wigmore, J. H., “Legislature has no Power in the Procedural Field” (1936) 20 J. Am. J. Soc. 159, 160Google Scholar.

¹⁵³ See the literature cited supra n. 136; and for a general account A. T. Vanderbilt, op. cit. supra n. 5, at 65–68; 122–23.

¹⁵⁴ (1953) Cmd. 8878. See for continued criticism after the report Gower, L. C. B. “Cost of Litigation” (1954) 17 M.L.R. 1CrossRefGoogle Scholar; Clark, C. E., “…English Procedural Reform” (1954) 29 N.Y.U.L.R. 1046Google Scholar.

¹⁵⁵ See, e.g., the quick reaction of the Departments concerned with insurance, tort and employment effect of the problems raised by Lister v. Romford Ice Co. Ltd. (1957) A.C. 555, discussed G. Gardiner (now Lord Gardiner L.C.) in (1959) 22 M.L.R. 652–56.

¹⁵⁶ And of course by attention to adequate publication of regulations and rulings. See Griswold, E. N., “Government in Ignorance of the Law” (1934) 48 H.L.R. 198CrossRefGoogle Scholar; Jaffe, L., “Publication of Administrative Rules and Orders” (1938) 24 A.B.A.J. 393Google Scholar.

¹⁵⁷ (The Donoughmore Committee) Cmd. 4060, esp. 64 ff., 115 ff., on the poor implementation of which see Carr, C. T., Concerning English Administrative Law (1941) 175Google Scholar; A. T. Vanderbilt, op. cit. 17, Jaffe, L. L., “Invective and Investigation in Administrative Law” (1939) 52 H.L.R. 1201, esp. 1203–21CrossRefGoogle Scholar.

¹⁵⁸ Report, Cmd. 218.

¹⁵⁹ 60 Stat. 237, c. 324, 5 U.S.C.A. §§1001 ff. And see Stone, Social Dimensions, Ch. 14, §§15 ff.

¹⁶⁰ See the Whyatt (“Justice”) Report, Foreword by Sir Oliver Franks, xi-xii, and 1 ff. The Chairman of the Council is Lord Tenby. On its role in the Chalkpit Farm Case see Griffith, J. A. G., “The Council and the Chalkpit” (1961) 39 Pub. Admin. 369–74CrossRefGoogle Scholar; Note, “The Council on Tribunals” (1962) 40 id. 427–29. In that case the Minister of Housing and Local Government refused to accept the recommendation of his Inspector after an open hearing, relying instead on information obtained from the Minister for Agriculture. Judicial relief was refused on the ground that the plaintiff, having no legal grievance, was not a “person aggrieved” within the Town and Country Planning Act, 1959, s. 31 (Buxton v. Minuter… [1961] 1 Q.B. 278). Assistance was then sought from the Council of Tribunals. Following the Council's investigation, the matter was referred to the Lord Chancellor and subsequently raised in Parliament. After full discussion with the L.C., the Council made two submissions on future conduct in such matters, which were accepted by the Government. See Notes in (1961) 105 Sol. Jo. 120, 821, and N. D. Vandyk, “Watchdog at Work” id. 601.

¹⁶¹ See Schwartz, B., “Administrative Procedure Act in Operation” (1954) 29 N.Y.U.L.R. 1173, 1222Google Scholar; A. T. Vanderbilt, op. cit. 31.

¹⁶² See as to the terms of reference, Franks, loc. cit. supra n. 160.

^{163 163} See Whyatt (“Justice”) Report 5 ff.

¹⁶⁴ Id. 1.

¹⁶⁵ See id. at 1–6, esp. 5–6. And as to what was meant by “misconduct” see id. 34–37, and for the “general tribunal” proposal, id. 79 ff.

¹⁶⁶ Id. 67 ff.

¹⁶⁷ See resp. id. 45–52, 53–60, and 61–66 where the functions and procedures of the Ombudsman are briefly described. See for fuller details Hurwitz, S., “Control of Administration in Denmark…” (1958) 1 J. of I.C.J. 224–43Google Scholar; id., “The Danish Parliamentary Commissioner…” (1958) Pub. L. 236, id., “Denmark's Ombudsman…” (1961) Wis. L.R. 169; Christensen, B., “The Danish Ombudsman” (1961) 109 Univ. of Pa. L.R. 1100CrossRefGoogle Scholar; Petersen, I. M., “The Danish Parliamentary Commissioner in Action” (1959) Pub. L. 115Google Scholar; Jagersköld, S., “The Swedish Ombudsman” (1961) 109 Univ. Pa. L.R. 1077CrossRefGoogle Scholar. For proposals in the U.K. for development beyond the comparatively new Council of Tribunals (which fulfils some of the functions concerned) see Blom-Cooper, L., “An Ombudsman in Britain” (1960) Pub. L. 145Google Scholar; de C. Hunter, A. A., “Ombudsman for Britain” (1962) 4 J. of I.C.J. 150–59Google Scholar; Utley, T. E., Occasion for Ombudsman (1961) 1–5, 135–59Google Scholar, with current cases illustrating the need at 16 ff., 50 ff. The incoming Lord Chancellor (1964) (formerly Gerald Gardiner, Q.C.) has been a strong advocate of the Ombudsman proposal. For U.S. proposals see W. Gellhorn, in Senate Judiciary Committee, Subcommittee on Administrative Practice…, Hearings Pursuant to Senate Res. 234, 86th Congress, 2d Session 116–35, 1960; Davis, K. C., “Ombudsmen in America …” 1961) 109 Univ. of Pa. L.R. 1057–76CrossRefGoogle Scholar. Many “Ombudsman” functions are of course found allocated to more mundanely named officers. K. C. Davis, op. cit. at 1066–72 sees various of them vested in the Subcommittee of Legislative Oversight of the H.R. Committee on Interstate and Foreign Commerce (1957), in the Office of Administrative Procedure within the Office of Legal Counsel of the Department of Justice (1957), in the Senate Judiciary Committee's Subcommittee in Administrative Practice and Procedure (1959), and in the presidentially established (but temporary) Administrative Conference of the U.S. (1961). (The date in each case is that of initiation.) Professor Davis lists also ibid eight other related proposals which have not matured. On the U.K. Council on Tribunals see supra. A number of countries have “State Controllers” with related functions. See, e.g., the 13th Annual Report to the Knesset (1962) of State Controller Nebenzahl of Israel, a substantial part of which deals with arbitrariness and wrong motivation in administrative action. During 1962, 1,500 complaints were received from the public. There are “Anti-Corruption” Bureaux in Malaya and Japan; see Report, Human Rights Seminar (Tokyo 1960) 14, 52. Singapore has a “Central Complaints Bureau”, to receive and take up with the responsible Minister (and also investigate) complaints against public servants. There is an International Convention of Supreme Audit Institutions, which has held a Congress in Vienna in 1962 and met in Israel in 1965.

¹⁶⁸ These were flatly rejected by the U.K. Government in 1962 as unnecessary and likely to impede efficiency in public business. See the acid “Comment” in (1962) Pub. L. 391.

¹⁶⁹ Accounts of his work by the Danish Ombudsman, Stephan Hurwitz, made deep impressions. See the Whyatt (“Justice”) Report xiv, and Davis, A. G., “The Ombudsman in N. Z.” (1962) 4 J. of I.C.J. 51–62Google Scholar, where the N. Z. Act is also analysed and criticized. The Act itself is No. 10 of 1962.

¹⁷⁰ See s. 11, where certain other excluded matters are specified.

¹⁷¹ See ss. 10–20.

¹⁷² The initial report of the N. Z. Ombudsman for period Oct. 1, 1962 to Nov. 5 1962 (Doc. A. 6/1962) showed 142 complaints filed, of which 44 were declined. His second Report of March 31, 1963 showed a great acceleration. There were 780 complaints in the first full year, of which 339 failed by jurisdictional or similar causes, 311 were investigated and the balance pending. Of the 311 investigated 68 were found justified. Of these 68 about one-half were satisfied by the authorities concerned. (Figures from a mimeographed paper of Ombudsman Sir Guy Powles of Nov. 1963.)

^172a K. C. Davis, cited supra n. 167, in particular, places stress on the check on administrative inefficiency and inadvertence to underlying policy. See id. passim esp. at 1062–66, 1075–76. And see in relation to control of police abuses, Z. Chafee, Foreword to Hopkins, Our Lawless Police (1931), xii, quoted in id., at 1074.

¹⁷³ Pound, R., “Anachronisms in Law” (1920), 3 J. Am. J. Soc. 142 ff., 147Google Scholar.

¹⁷⁴ Holmes, “Path of the Law” 461.

¹⁷⁵ Op. cit. supra n. 136, at 226.

¹⁷⁶ See Vanderbilt, A. T., in (1946) 32 A.B.A.J. 525, 528Google Scholar, R. Pound in (1952) 40 id. 951. Cf. Dean E. N. Griswold's address, June 22, 1962, on the Dedication of the Ohio Legal Centre.

¹⁷⁷ Editorial (1946) 32 A.B.A.J. 569. Cf. Nussbaum, A., “…Legal Realism” (1959) 12 J. Leg. Ed. 182, 190–91Google Scholar.

¹⁷⁸ And cf. the ten-year project for a Model Penal Code, directed by Professor Herbert Wechsler. A deliberate effort was there made to use the relevant bodies of knowledge from many relevant social disciplines, by a team of lawyers and social scientists, while bearing in mind the special questions involved in legal responsibility and punishment.

¹⁷⁹ The Berkeley Centre has projects for studies of litigants, the role of lawyers in litigation, and of courts in their social setting. The Columbia Project has made a number of studies of the legal profession and the speed and effect of litigation, e.g., Rosenberg, M. and Sovern, M. L., “Delay and the Dynamics of Personal Injury Litigation” (1959) 59 Columbia L.R. 1115–70CrossRefGoogle Scholar; Rosenberg, M. and Schubin, M., “Trial by Lawyer: Compulsory Arbitration of Small Claims in Pennsylvania” (1961) 74 H.L.R. 448–71CrossRefGoogle Scholar; Franklin, M. A., Chanin, R. H. and Mark, I., “Accidents, Money, and the Law: A Study of the Economics of Personal Injury Litigation” (1961) 61 Columbia L.R. 1–39CrossRefGoogle Scholar; Rosenberg, M. and Chanin, R. H., “Auditors in Massachusetts as Antidotes for Delayed Civil Courts” (1961) 110 Univ. of Pa. L.R. 27–56CrossRefGoogle Scholar. Besides the New York Institute of Judicial Administration above mentioned, there was also established a National College of State Trial Judges at the University of Colorado in 1964, under sponsorship of the American Bar Association, and following activities by way of seminars and national conferences in the preceding six years. Cf. also the University of Chicago Jury Studies, supra n. 25.

¹⁸⁰ For popular account of the U.K. position by distinguished contributors including Goodhart, A. L., Denning, Lord, Williams, G. L., see Hamson, C. J. (ed.), Law Reform and Law-Making (1953)Google Scholar.

¹⁸¹ The subjects of its reports included the administration of N.Y. Courts (1954); children and families in the courts of N.Y.C. (1954); the federal loyalty security programme (1956); impartial medical testimony (1956); freedom to travel (1958); conflict of interest in the federal service (1956); and a study of automobile accident claims (1962). See, e.g., Hunting, R. B., “Payment for Accident Victims; the Claimant's Eye View” (1961) 33 N.Y. St. B.J. 81–96Google Scholar. A current project (1964, Chairman Judge H. Medina) concerns the proper limits of reporting and comment on news, and arises from the circumstances following President Kennedy's assassination. And see on this matter in relation to the integrity of the judicial process Greenberg, B. S. and Parker, E. B. (eds.), The Kennedy Assassination (1964)Google Scholar; Griswold, E. N., “When Newsmen become Newsmakers” (1964) 47 Saturday Review 21–23Google Scholar (Oct. 24, 1964).

¹⁸² The recently established Walter E. Meyer Research Institute of Law (New Haven), devoted to promoting legal research, has sponsored surveys of legal research in procedure (C. Hazard), trusts and trust taxation (T. F. Hogg), anti-trust law, contracts (L. Lipson), criminal law (G. Muller). Its Director, R. S. Brown, Jr., sponsored the notable recent symposium on “Frontiers of Legal Research” (see A.B.S., Legal Research), in an effort to improve inter-disciplinary communication. With related objectives there was in the 'fifties a National Institute of Mental Health Project for participation of psychiatrists in law school teaching of criminal law, family law and the law of evidence, e.g., at the University of Pennsylvania.

¹⁸³ A. T. Vanderbilt, op. cit. supra n. 136, at 32.

¹⁸⁴ For political theory this has now been done by Almond-Coleman, Developing Areas. For a sampling of the special aspects which might need to be taken into account see Stone, Human Justice, Ch. 9, §§9–13; and Stone, Social Dimensions, Ch. 2, §§13, 17 and nn. 22, 38; Ch. 3, §4; and Ch. 4, § 5.

¹⁸⁵ Cf. some main themes of the Brookings Institution's Research and Public Policy (1961), esp. of P. Herring, and M. Grodzins. Dean Griswold, cit. supra n. 176, endorsed these general points from the standpoint of law school research. de Grazia, A. and Ruttenberg, C. L. (A.B.S., Legal Research 48–51)Google Scholar have recently tried to survey the personnel available for innovatory work in the law and society area. They list 254 persons from fields embracing, in addition to law, political science, sociology, philosophy, psychiatry, history, economics, statistics, survey research methods, psychiatry, anthropology and criminology. This list is presumably of U.S. personnel, though it includes also a few British scholars such as M. Gluckman, S. Toulmin, H. L. A. Hart, and the present writer. They are obviously diffident of its value (see p. 50), and regard disorganization and poor communication between workers as even greater problems than lack of personnel. We would add, as to many of the 254 names listed, that just as one swallow does not make a summer, so one tour de force does not make an innovating worker. Moreover, any attempt to designate innovators in the study of legal process on a Gallup poll basis in which the innovators are also the designators (see id. 48–51) is obviously hazardous. To know what is “innovatory” the designator should be aware of the place of his interests in the jurisprudential as well as the behavioural stream of learning. A number of the 254 surely did not, yielding the results which Drs. de Grazia and Ruttenberg rightly find strange, that e.g. the ten individuals voted “most innovative” apparently never read the works of other “innovators.” (See id. 50, 52.)

¹⁸⁶ Pound, R., “The Fourteenth Amendment and the Right of Privacy” (1961) 13 Western Reserve L.R. 34–55Google Scholar.

¹⁸⁷ Article cited supra n. 4.

¹⁸⁸ See on these stresses Stone, Social Dimensions, Ch. 14, §§11 ff.