Review of Periodicals eluded under the general designation o£ bank ruptcy laws, and therefore are suspended altogether, if the view here contended for is sound; or are at least partially suspended, if the view upheld by the courts of California and Maryland is to be accepted? . . . "There is no reason to suppose that in this country the mere fact that Congress has passed a bankruptcy law should suspend the ordinary equity powers of state courts to appoint receivers; and such seems to be the generally accepted view. But in much the same fashion that state legislation in some jurisdictions has annexed incidents of bank ruptcy legislation to assignments for the bene fit of creditors, so statutes have been passed regulating receiverships, and in some instances adding rules of law in regard to them appro priate for bankruptcy legislation. Such statutes must be suspended at least to the extent to which they infringe upon the field appropriate for bankruptcy legislation, and it has been held in Maine, Pennsylvania, and Rhode Island, that local statutes of this sort were suspended. It does not follow, how ever, that the ordinary equity jurisdiction to appoint a receiver is lost because a federal bankruptcy statute has been passed." "The Law Concerning Foreign Receivers." By Albert S. Bolles. 18 Yale Law Journal 488 (May). The author views his subject in broad perspective and throws much light on its various phases. Basis of Law. "A Recent Development in Political Theory." By J. M. Matthews. Political Science Quarterly, v. 24, p. 284 (June). The writer of this most interesting review tends to over-emphasize the divergencies of Duguit's theories from those of the analytical school, but admits: "Perhaps, after all, the conflict between the Duguitian theory and analytical jurisprudence is more apparent than real. . . Both are perhaps necessary in order to obtain a complete and well-rounded view of the main concepts of political science." Bill of Rights. See Socialism. Bill of Rights. "Liberty of Contract." By Prof. Roscoe Pound. 18 Yale Law Journal 454 (May). That liberty of contract is a principle widely misinterpreted, and that it means not simply the juridical capacity of one citizen to make his contracts upon the same terms as every other citizen, but rather his social or economic capacity to enjoy an equality of his physical opportunities and facilities for contract, wholly apart from an equality of legal right, seems to be the radical contention of Professor Roscoe Pound in this thoughtful and striking article. He condemns the position of the courts as illustrated in the Julow case (129 Mo. 163), People v. Marcus (1906; 185 N. Y. 257), and the Adair case (1908; 208 U. S. 161), as perniciously ex pounding the doctrine that—
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"The public have no interest in bringing aoout a real equality in labor-bargainings, even though thereby strikes and disorders may be obviated, and have no concern with contracts for labor except where the safety, health or morals of the public at large may be concerned!" This is probably the most strikingly radical proposition advanced in this article. Another position, closely allied to the first, is that con stitutionality is often a question purely of fact. The courts often make mistakes in pronouncing upon the question of constitu tionality, for— "The court has no machinery for getting at the facts. It must decide on the basis of matters of general knowledge and on ac cepted principles of uniform application. It cannot have the advantage of legislative reference bureaus, of hearings before com mittees, of the testimony of specialists who have conducted detailed investigations, as the legislature can and does. The court is driven to deal with the problem artifically or not at all, unless it is willing to assume that the legislature did its duty and to keep its hands off on that ground. More than anything else, ignorance of the actual situa tions of fact for which legislation was pro vided and supposed lack of legal warrant for knowing them, have been responsible for the judicial overthrowing of so much social legis lation." It will be observed that this writer has chiefly in mind, in the foregoing, "social leg islation," legislation, in other words, de signed to improve the physical, as opposed to the legal status, of certain classes in the com munity, and that he deems it the province of the courts to sustain the constitutionality of legislation promoting such physical equality —a duty which if it did rest upon them, would limit their inquiry to questions of fact almost wholly, and would often require a searching investigation under competent expert assistance. Apart from these dubious positions, Pro fessor Pound has some good things to say about that extinct theory of natural rights which still influences, to a great extent, many judicial opinions. Freedom of contract, as a natural right, is bound up with the "indi vidualistic ethics and economics" with whose high tide "the growing period of American law coincided":— "As a result of our legal history, we exag gerate the importance of property and of contract, as an incident thereof. A leader of the bar, opposing the income tax, argues that a fundamental object of our polity is 'preservation of the rights of private prop erty.' Text writers tell us of the divine origin of property. The Supreme Court of Wisconsin tells us that the right to take prop erty by will is an absolute and inherent right, not depending upon legislation. The abso lute certainty which is one of our legal ideals, an ideal responsible for much that is irritatingly mechanical in our legal system, is demanded chiefly to protect property. And
