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NAACP v. Alabama,16 it was not clear that the Supreme Court went much beyond the first approachP As long as freedom of association is tied to the first amendment guarantees of expression, it is unlikely to move very far. It can, however, fiy much higher if it takes off from the guarantee of due process in the fifth and fourteenth amendments. The "liberty" protected by those clauses, which, it could be argued, includes the privileges "essential to the orderly pursuit of happiness by free men,"18 therefore includes the right to associate with one's fellows for any purpose. 19 With such an approach, even the Sunday picnic would acquire new constitutional dignity. JOSEPH B. ROBISON Assistant Director, American Jewish Congress Commission on Law and Social Action

A TREATISE ON THE CONFLICT OF LAWS. By Albert A. Ehrenzweig. 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 on the Conflict of Laws, now published complete in one stout volume of 824 pages. But such words do not adequately convey the importance and permanent value of Professor Ehrenzweig's contribution. He is no gadfly. He is always erudite, usually perceptive, and decidedly original. Considering that English is not his native language, his mastery of it is impressive. No other English or American treatise can compare with this one in its skillful and copious use of the European legal materials. The book will be read with interest and with benefit by every serious student of the subject. If the ultimate value of this brilliant treatise is not diminished, its tone is adversely affected by Professor Ehrenzweig's arrogant dismissal of the many 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 1834 hoping "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 in association for the advancement of beliefs and ideas" and of "the beliefs sought to be advanced 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 associate freely 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, Protection of Associations from Compulsory Disclosure of Membership, 58 COLUM. L. REV. 614, 621 (1958).

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explore the paths which I have ventured only to point out"1 is depicted as a fountain of error and confusion. Mr. Justice Holmes's views are said to have been attributed to "lack of knowledge in the field, traumatic predilection for the power concept . . . as well as adherence to a rigidity 'innate in the common law' ...."2 Nor do Dicey,3 Justice Cardozo ("steeped in ... illusion"4), and Judge Learned Hand merit the author's approval; the lastnamed, it appears, had a "conceptualistic affliction."11 But all these sneers and denunciations pale into insignificance compared with Professor Ehrenzweig's assaults upon Professor Joseph H. Beale and the American Law Institute. These are his bites noires, and hostility towards practically everything they have ever done or said runs like a Wagnerian leit-motiv through this new treatise. Beale is accused not only of "mistranslation"6 but of creating "an ugly barrier"7 to truth in the Restatement, elsewhere described as a nightmare and an albatross which has "caused unending confusion in the courts and which has misled foreign lawyers . . . :'8 Professor Ehrenzweig does not limit his scorn to the "failure," "futility," "fatality,"9 and meaningless or unsupported character of the first Restatement; he has apparently had access to tentative and unpublished drafts of the Restatement (Second) and he finds them equally obnoxious. 10 It is difficult to reconcile such extreme statements with the facts set forth in the ALI's Restatement in the Courts11 and with Professor Ehrenzweig's own reference to the "wholesale judicial adoption of the Restatement with the virtual effect of a Code."12 The image of Professor Beale projected in this treatise will seem wildly distorted to anyone who knew him. He is depicted as a dogmatic old fogey, stretching every case upon a Procrustean bed of "Bealism" and rejecting as erroneous everyone that did not fit. Now the fact is that Beale never handed down precepts on a transcendental basis; he was, among other things, an eminently practical and sensible lawyer with ample experience in the courts13 who felt that when a choice of possibly applicable rules of law was required, the choice should be made on the bases of precedent, experience, logic, and public policy. He had no illusions as to the perfection or inevitability or immutability of his conclusions. As he once wrote to me, "Lawyers' truths are always provisional and must be periodically retested and perhaps restated in the light of experience."
2. 4, at 11 n.1S.
1. STORY, CONFLICT OF LAWS xiii (8th ed. 1883).

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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Professor 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 in practice. Indeed, Professor Ehrenzweig commits himself to the astounding statement that "those great scholars, Cook and Lorenzen, had to spend most of their life work on the destruction of the Institute's first product."14 Did these 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 for combat 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 much alive; that it is, like most lawyers, learning from experience and that outside of certain academic circles its work has been generally accepted. The fact that restatement of the law is required after the lapse of thirty-five years proves, not Beale's failure, but rather the inevitable changes brought about by a protean society and by new insights developed by thought and experience. Kilberg,15 Pearson,16 and McAuliffe 17 were not current problems and not a part 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 of substance and procedure "analytically meaningless"18 and offers his treatise as "a largely new systematic analysis."19 Although he asserts that the traditional approach to conflicts cases produces unsatisfactory results, he admits that "anarchy" would ensue if " 'justice' unguided" were the rule of decision. 20 Elsewhere, however, he appears to recognize that most of the cases are properly decided,21 and he points to no serious miscarriages of justice attributable to the ordinary techniques. To a considerable extent, the controversy involves methodology and terminology and thus it is by no means certain that, if every American court were to abandon the Restatement and embrace the Gospel according to Ehrenzweig, there would be much difference in the end results.

II.
What then is Professor Ehrenzweig's new system? Readers unacquainted with his previous writings may be amazed to learn that he proposes
14. 123, at 351. 15. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133 (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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the lex fori as the basic rule of choice in every case, regardless of the law under which the rights of the parties accrued. This proposal is not as revolutionary as it sounds because, in a great variety of instances, Professor Ehrenzweig advocates displacing the lex fori by a foreign law which he deems to be compelling or more appropriate. Thus, if one adopts the American Law Institute rule of considering "significant contacts" or the "center of gravity" in choosing the applicable law-a rule which often leads to the lex fori--he may not, in the end, produce results materially different from those of Professor Ehrenzweig, who embraces the lex fori in the beginning and then proceeds to displace it. Here, again, we are plagued by terminology. Foreign law never prevails in the forum ex proprio vigore. No court can ever enforce any law except its 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 to contracts legally made abroad, the law of the country where the cause of action 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 confused elderly gentlemen as Story, Beale, Holmes, Cardozo, Hand, and Goodrich. Before reading Professor Ehrenzweig I had always supposed that the early cases considering only the lex fori were motivated by provincial or insular prejudice, or by the ignorance or laziness of court or counsel. The notion that justice and convenience require that the substantial rights of persons, especially of those engaged in interstate or international commerce, be not exposed to the hazards of fortuitous foreign laws, does not appeal to Professor Ehrenzweig. Nor, apparently, is he impressed by the historical trend in which, for several centuries, foreign law has been permitted and encouraged steadily to encroach upon the early monopoly of the lex fori. To Professor Ehrenzweig "application of the lex fori has always been the basic principle of conflicts law and was merely temporarily displaced from time to time."23 I cannot agree; the effort to discover reasons for temporarily displacing the lex fori poses difficulties as great or greater than any we now have. Nor do I find in Professor Ehrenzweig's treatise adequate answers to the charges that his system will lead to forum shopping and that it will often disappoint the reasonable expectations of contracting parties and other litigants. Moreover, his system would enormously enhance the difficulties of advising clients and of deciding cases. One really cannot tell a client that his rights will be determined by the law of any state or nation in which 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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the social, political, economic, and philosophical factors deemed by the judge to be involved. My verdict upon Professor Ehrenzweig's case is therefore the Scottish one: "Not proven." It should be added that Professor Ehrenzweig's new system is also curiously inconsistent with the views of his acknowledged master, Cook. Cook sought to diminish the role of the lex fori, whereas Ehrenzweig would expand it. Cook was shocked by the injustice of emasculating or denying foreign rights by application of the lex fori while professing to recognize such 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 of good things, the fruit of vast reading and profitable reflection. Although many lawyers of my generation will take exception to the author's pro-plaintiff bias in tort actions and to his comparative indifference to the fate of contract plaintiffs, and will be shocked by his averment that compensation of the plaintiff, not justice to the defendant, is now the primary object of tort actions,24 there can be no doubt that he is accurately reflecting contemporary trends. 25 Professor Ehrenzweig is on firm ground in insisting upon the superfluity of "characterization"26 and upon the "hornet's nest" of renvoi.27 He is shrewd and realistic in pointing out how often courts have used these concepts, plus the "unruly horse of public policy," to achieve desired results to which their systems did not logically conduce.28 He is persuasive in opposing current restrictions upon the right of foreign fiduciaries and receivers to sue. 29 And he is undoubtedly right in saying that "fairness to the parties has increasingly become the determining factor in the development of the law of jurisdiction,"30 although it is distressingly apparent that there will be no ready agreement as to what is fair. More arguable would seem to be his flat contradiction of Holmes's famous dictum 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 multiplication and proliferation of crimes, torts, and taxable events, and ever-increasing liability in respect 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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applied in foreign litigation between private parties" ;32 his objection to a New Jersey case that applied the lex fori to admit New York hospital records that were inadmissible in New York ;33 his statement that contracts should be governed by "any law whose application the parties can reasonably be assumed to have taken into account" ;84 and his dismissal of Holmes's opinion in 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 weight to the practical necessities of litigants, lawyers, and judges. The approach of the new realists is essentially negative; they have sought to extinguish the lantern (which sometimes does shed a feeble light) and leave us without any guide at all. Professor Ehrenzweig's heroes are eminent scholars and keen thinkers, 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, like life of which it is one expression, tends to escape formulation. The workers in this field must offer provisional solutions, not eternal truths. The eternal truths about law are few and of little value in deciding concrete cases. Maitland was right in calling the law a seamless web and Vareilles-Sommieres was 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 that the conflict of laws will continue to disturb, perplex, astonish, and delight us as long as we live.
EDGAR

H.

AILES

Member of the Michigan Bar, Advisor of the Restatement (Second), Conflict of Laws
32. 106, at 321. 33. 125, at 356.
34. 174, at 464. After thirty-five years of daily experience in the law courts, I venture the opinion that not more than once in a hundred times do contracting parties take into account or rely upon the law of any particular state or nation. 35. 211, at S44 n.19.

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