Showing papers in "Harvard Law Review in 1932"

For Whom are Corporate Managers Trustees

Abstract: Directors and managers of modern large corporations are granted all sorts of novel powers by corporation statutes and charters, and are free from any substantial supervision by stockholders by reason of the difficulty which the modern stockholder has in discovering what is going on and taking effective measures even if he has discovered it. If the unity of the corporate body is real, then there is reality and not simply legal fiction in the proposition that the managers of the unit are fiduciaries for it and not merely for its individual members, in Mr. Young's phrase, trustees for an institution rather than attorneys for the stockholders. It may well be that any substantial assumption of social responsibility by incorporated business through voluntary action on the part of its managers cannot reasonably be expected.

The History of Comparative Law

Abstract: ^COMPARATIVE law, as Professor Wigmore has said,\" is a ^^ convenient but loose term. It serves to embrace all those studies which, characteristically, do not confine their attention to domestic law. These, however, vary in purpose and method. All of them are not really comparative, even today; there is still a tendency to comprehend the mere study of foreign laws in the term \" comparative law.\" Studies which are truly comparative fall into several categories. They may compare foreign systems with the domestic system with a view toward ascertaining likenesses and differences, or analyze objectively and systematically the solutions which the various systems offer for any given legal problem. They may investigate the causal relation between different systems of law or compare the several stages of various legal systems. In addition, those studies which endeavor to ascertain the evolution of specific legal institutions in various legal systems or to examine legal evolution generally according to periods and systems are included in the term \" comparative law.\" ^

Judicial Relief for Peril and Insecurity

Abstract: N the United States, we are not accustomed to consider the theory of procedure as of profound importance. Possibly the extraordinary technicality of American procedure by reason of which substantive issues are so often relegated to practical oblivion by procedural tactics is in part responsible. At all events, the unsystematic and empirical method of embarking upon and concluding litigation seems to have developed a frame of mind somewhat indifferent to the theoretical function of the judicial process. For example, down to very recent days Justices of the United States Supreme Court gave expression to the view, now happily repudiated, that the award of execution was an essential element of a judicial judgment.' Notwithstanding the fact that judicial precedents and opinions have greater weight in the complex structure of American law than they do in any other system -utterances good, bad, and indifferent being seized upon with equal avidity by an undiscriminating bar and bench the fact is that the theory of the judicial function and of judgments has been largely neglected, in striking contrast with experience abroad. Defective theory, in turn, impairs practice. It is submitted that the inadequate analysis of such fundamental concepts as justiciability, judicial power, and cause of action is largely responsible for misconceptions prevailing in important circles concerning the nature of judgments, and in particular of declaratory judgments. The somewhat antiquated view of Blackstone that the \" redress of private injuries\" is the sole function of courts of justice is partly accountable for the erroneous view occasionally expressed that the commission of wrong, public or private, is an essential condition for invoking the judicial arm of the state.2 It is over-