Book Review: Ehrenzweig, Treatise

8/3/2019 Book Review: Ehrenzweig, Treatise

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1544 COLUMBIA LAW REVIEW [Vol. 63NAACP v. Alabama,16 it was not clear that the Supreme Court went muchbeyond the first approachP

As long as freedom of association is tied to the first amendment guar-antees of expression, it is unlikely to move very far. I t can, however, fiy muchhigher if it takes off from the guarantee of due process in the fifth andfourteenth amendments. The "liberty" protected by those clauses, which, itcould be argued, includes the privileges "essential to the orderly pursuit ofhappiness by free men,"18 therefore includes the right to associate with one'sfellows for any purpose.19 With such an approach, even the Sunday picnicwould acquire new constitutional dignity.

Assistant Director, American Jewish CongressCommission on Law and Social Action

JOSEPH B. ROBISON

A TREATISE ON THE CONFLICT OF LAWS. By Albert A. Ehren-zweig. St. Paul, Minn.: West Publishing Co., 1962. Pp. li, 824. $10.00.

1.Stimulating, provocative, and controversial are the trite adjectives which

come first to mind in reading Professor Albert A. Ehrenzweig's Treatise onthe Conflict of Laws, now published complete in one stout volume of 824pages. But such words do not adequately convey the importance and perma-nent value of Professor Ehrenzweig's contribution. He is no gadfly. He isalways erudite, usually perceptive, and decidedly original. Considering thatEnglish is not his native language, his mastery of it is impressive. No otherEnglish or American treatise can compare with this one in its skillful andcopious use of the European legal materials. The book will be read withinterest and with benefit by every serious student of the subject.

I f the ultimate value of this brilliant treatise is not diminished, its toneis adversely affected by Professor Ehrenzweig's arrogant dismissal of themany lawyers of at least equal stature with himself who disagree with him.Few of the greatest modern lawyers escape his contempt or censure. Story,a thoughtful and scholarly man, who modestly offered his treatise in 1834hoping "that other minds of more ability, leisure and learning may be excited to

16. 357 U.S. 449 (1958).17. Early in its opinion, the Court spoke in terms of "freedom to engage inassociation for the advancement of beliefs and ideas" and of "the beliefs sought to beadvanced by association .. [d. at 460. Later, however, it referred more broadly to"the right of the members to pursue their lawful private interests privately and to associatefreely with others in so doing . . . . [d. at 466.18. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).19. A brief discussion of this point by this reviewer appears in Robison, Protectionof Associations from Compulsory Disclosure of Membership, 58 COLUM. L. REV. 614, 621(1958).


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1963] BOOKS 1545explore the paths which I have ventured only to point out"1 is depicted as afountain of error and confusion. Mr. Justice Holmes's views are said to havebeen attributed to "lack of knowledge in the field, traumatic predilection forthe power concept . . . as well as adherence to a rigidity 'innate in thecommon law' .... 2 Nor do Dicey,3 Justice Cardozo ("steeped in ... illu-sion"4), and Judge Learned Hand merit the author's approval; the last-named, it appears, had a "conceptualistic affliction."11

But all these sneers and denunciations pale into insignificance comparedwith Professor Ehrenzweig's assaults upon Professor Joseph H. Beale andthe American Law Institute. These are his bites noires, and hostility towardspractically everything they have ever done or said runs like a Wagnerianleit-motiv through this new treatise. Beale is accused not only of "mistransla-tion"6 but of creating "an ugly barrier"7 to truth in the Restatement, elsewheredescribed as a nightmare and an albatross which has "caused unending con-fusion in the courts and which has misled foreign lawyers . . . :'8 ProfessorEhrenzweig does not limit his scorn to the "failure," "futility," "fatality,"9and meaningless or unsupported character of the first Restatement; he hasapparently had access to tentative and unpublished drafts of the Restatement(Second) and he finds them equally obnoxious.10 It is difficult to reconcilesuch extreme statements with the facts set forth in the ALI's Restatementin the Courts11 and with Professor Ehrenzweig's own reference to the "whole-sale judicial adoption of the Restatement with the virtual effect of a Code."12

The image of Professor Beale projected in this treatise will seem wildlydistorted to anyone who knew him. He is depicted as a dogmatic old fogey,stretching every case upon a Procrustean bed of "Bealism" and rejectingas erroneous everyone that did not fit. Now the fact is that Beale neverhanded down precepts on a transcendental basis; he was, among other things,an eminently practical and sensible lawyer with ample experience in thecourts13 who felt that when a choice of possibly applicable rules of law wasrequired, the choice should be made on the bases of precedent, experience,logic, and public policy. He had no illusions as to the perfection or inevitabilityor immutability of his conclusions. As he once wrote to me, "Lawyers' truthsare always provisional and must be periodically retested and perhaps restatedin the light of experience."

1. STORY, CONFLICT OF LAWS xiii (8th ed. 1883).2. 4, at 11 n.1S.3. 107, at 324.4. 120, at 344.5. 174, at 461.6. 106, at 318.7. 107, at 325.8. 123, at 351.9. Ibid.10. Ibid.11. (1945 & 1948, 1954 Supps.).12. 10, at 34 n.7.13. See, e.g., James v. Gray, 131 Fed. 401 (lst Cir. 1904).


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1546 COLUMBIA LAW REVIEW [Vol. 63Professor Ehrenzweig's heroes are Cook and Lorenzen and, apparently,

to a somewhat lesser extent, Yntema, Rabel, and Currie-all very distinguished academic lawyers with little or no experience on the bench or inpractice. Indeed, Professor Ehrenzweig commits himself to the astoundingstatement that "those great scholars, Cook and Lorenzen, had to spend mostof their life work on the destruction of the Institute's first product."14 Didthese eminent savants really have to do this job of demolition and did they,in fact, do it? (Professor Cook, at least, seems to have found ample time forcombat with others!) And if Professor Ehrenzweig's statement were accurate, would it be necessary for him to fight the battle so strenuously today?The truth appears to be that the American Law Institute is very muchalive; that it is, like most lawyers, learning from experience and that outsideof certain academic circles its work has been generally accepted. The factthat restatement of the law is required after the lapse of thirty-five yearsproves, not Beale's failure, but rather the inevitable changes brought aboutby a protean society and by new insights developed by thought and experience.Kilberg,15 Pearson,16 and McAuliffe17 were not current problems and not apart of our intellectual furniture in 1929.

Consistency may be a jewel or merely the hobgoblin of little minds but,whatever it is, Professor Ehrenzweig has not got it. He objects to codes,systems, and analyses, but he has his own. He calls the differentiation ofsubstance and procedure "analytically meaningless"18 and offers his treatiseas "a largely new systematic analysis."19 Although he asserts that the traditional approach to conflicts cases produces unsatisfactory results, he admitsthat "anarchy" would ensue if " 'justice' unguided" were the rule of decision.20Elsewhere, however, he appears to recognize that most of the cases areproperly decided,21 and he points to no serious miscarriages of justice attributable to the ordinary techniques. To a considerable extent, the controversyinvolves methodology and terminology and thus it is by no means certainthat, if every American court were to abandon the Restatement and embracethe Gospel according to Ehrenzweig, there would be much difference in theend results.

II .What then is Professor Ehrenzweig's new system? Readers unac

quainted with his previous writings may be amazed to learn that he proposes14. 123, at 351.15. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d133 (1961), 61 COLUM. L. REV. 1497.16. Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (1962), cert. denied, 372 U.S.912 (1963), 63 COLUM. L. REV. 133.17. Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d 944 (1953).18. 114, at 331.19. P. vii.20. 121, at 347.21. 103, at 313.


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1963] BOOKS 1547the lex fori as the basic rule of choice in every case, regardless of the lawunder which the rights of the parties accrued. This proposal is not asrevolutionary as it sounds because, in a great variety of instances, ProfessorEhrenzweig advocates displacing the lex fori by a foreign law which hedeems to be compelling or more appropriate. Thus, if one adopts the Amer-ican Law Institute rule of considering "significant contacts" or the "centerof gravity" in choosing the applicable law-a rule which often leads to thelex fori--he may not, in the end, produce results materially different fromthose of Professor Ehrenzweig, who embraces the lex fori in the beginningand then proceeds to displace it.

Here, again, we are plagued by terminology. Foreign law never prevailsin the forum ex proprio vigore. No court can ever enforce any law exceptits own but, as Lord Mansfield declared in Holman v. Johnson,22 in 1775:"[T] he law of England says that, in a variety of instances, with regard tocontracts legally made abroad, the law of the country where the cause ofaction arose shall govern."

Lord Mansfield was thus also apparently afflicted with "conceptualism" ;and he would seem to have anticipated and projected the "errors" of such con-fused elderly gentlemen as Story, Beale, Holmes, Cardozo, Hand, andGoodrich.Before reading Professor Ehrenzweig I had always supposed that theearly cases considering only the lex fori were motivated by provincial orinsular prejudice, or by the ignorance or laziness of court or counsel. Thenotion that justice and convenience require that the substantial rights ofpersons, especially of those engaged in interstate or international commerce,be not exposed to the hazards of fortuitous foreign laws, does not appeal toProfessor Ehrenzweig. Nor, apparently, is he impressed by the historicaltrend in which, for several centuries, foreign law has been permitted andencouraged steadily to encroach upon the early monopoly of the lex fori.

To Professor Ehrenzweig "application of the lex fori has always beenthe basic principle of conflicts law and was merely temporarily displaced fromtime to time."23 I cannot agree; the effort to discover reasons for tem-porarily displacing the lex fori poses difficulties as great or greater thanany we now have. Nor do I find in Professor Ehrenzweig's treatise adequateanswers to the charges that his system will lead to forum shopping and thatit will often disappoint the reasonable expectations of contracting parties andother litigants. Moreover, his system would enormously enhance the diffi-culties of advising clients and of deciding cases. One really cannot tell aclient that his rights will be determined by the law of any state or nation inwhich he may happen to be sued, subject to many exceptions based upon

22. 1 Cowp. 341, 98 Eng. Rep. 1120 (K.B. 1775).23. 105, at 316.


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1548 COLUMBIA LAW REVIEW [Vol. 63the social, political, economic, and philosophical factors deemed by the judgeto be involved. My verdict upon Professor Ehrenzweig's case is thereforethe Scottish one: "Not proven."It should be added that Professor Ehrenzweig's new system is alsocuriously inconsistent with the views of his acknowledged master, Cook. Cooksought to diminish the role of the lex fori, whereas Ehrenzweig wouldexpand it. Cook was shocked by the injustice of emasculating or denyingforeign rights by application of the lex fori while professing to recognizesuch rights. I do not doubt that Cook would consider his disciple a heretic.Cook was dogmatically anti-systematic.

III.It would be unfair and ungracious to conclude this review, which rejects

the author's central thesis, without saying that the book is a cornucopia ofgood things, the fruit of vast reading and profitable reflection.

Although many lawyers of my generation will take exception to theauthor's pro-plaintiff bias in tort actions and to his comparative indifferenceto the fate of contract plaintiffs, and will be shocked by his averment thatcompensation of the plaintiff, not justice to the defendant, is now the primaryobject of tort actions,24 there can be no doubt that he is accurately reflectingcontemporary trends.25

Professor Ehrenzweig is on firm ground in insisting upon the superfluityof "characterization"26 and upon the "hornet's nest" of renvoi.27 He is shrewdand realistic in pointing out how often courts have used these concepts, plusthe "unruly horse of public policy," to achieve desired results to which theirsystems did not logically conduce.28 He is persuasive in opposing currentrestrictions upon the right of foreign fiduciaries and receivers to sue.29 Andhe is undoubtedly right in saying that "fairness to the parties has increasinglybecome the determining factor in the development of the law of jurisdiction,"30although it is distressingly apparent that there will be no ready agreementas to what is fair.

More arguable would seem to be his flat contradiction of Holmes's famousdictum that jurisdiction is based upon physical power ;31 his statement that"it is clearly of no concern to any sovereign whether his law is or is not

24. 211, at 545.25. E.g., serious writers who equate social progress with the endless multiplicationand proliferation of crimes, torts, and taxable events, and ever-increasing liability inrespect of torts, even without fault on the part of the defendant.26. 110.27. 116-17.28. 120.29. 14.30. 25, at 78.3l. Ibid.


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1963] BOOKS 1549applied in foreign litigation between private parties" ;32 his objection to aNew Jersey case that applied the lex fori to admit New York hospital recordsthat were inadmissible in New York ;33 his statement that contracts shouldbe governed by "any law whose application the parties can reasonably beassumed to have taken into account" ;84 and his dismissal of Holmes's opinionin the Banana case as discredited.35

More generally, Professor Ehrenzweig's treatise and the whole "Enlightenment," of which it is a manifestation, do not seem to accord sufficient weightto the practical necessities of litigants, lawyers, and judges. The approach ofthe new realists is essentially negative; they have sought to extinguish thelantern (which sometimes does shed a feeble light) and leave us without anyguide at all. Professor Ehrenzweig's heroes are eminent scholars and keenthinkers, but they hardly seem to deserve all the proffered incense. We must,nevertheless, be grateful to them for their iconoclasm, their brilliant writing,and their compulsion to re-examine and restate our premises and our conclusions in respect of choice of law.

There can, of course, be no final answer to these problems. Law, likelife of which it is one expression, tends to escape formulation. The workersin this field must offer provisional solutions, not eternal truths. The eternaltruths about law are few and of little value in deciding concrete cases.Maitland was right in calling the law a seamless web and Vareilles-Sommiereswas wrong in holding that truth in law is always simple, clear, and restful.Both comments emphasize the difficulty of our task and make it certain thatthe conflict of laws will continue to disturb, perplex, astonish, and delightus as long as we live.

EDGAR H. AILESMember of the Michigan Bar,

Advisor of the Restatement (Second), Conflict of Laws32. 106, at 321.33. 125, at 356.34. 174, at 464. After thirty-five years of daily experience in the law courts, Iventure the opinion that not more than once in a hundred times do contracting partiestake into account or rely upon the law of any particular state or nation.35. 211, at S44 n.19.

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Book Review: Ehrenzweig, Treatise