The Basis of the Immunity of an Employer of an Independent Contractor

Between the specious and often artificial legalistic concepts in which opinions of courts are couched and the plausible rationalizations devised by ingenious law professors, it is often difficult to determine the actual forces which have made the law, at any given time, what we find it to be. Man is a rational creature in one sense, but a thoroughly irrational one in another and by far the more important sense. He is adept in fashioning logical and even practical ratiocinations for his conduct to make it appear proper if not inevitable. But, on the whole, he has not developed the capacity for following a course of planned conduct according to blue prints prepared by the most competent social engineers. Thus, a rule of law is found in the reports to be based upon one or more supposed Blackstonean reasons . In the juristic literature, the principle is based upon a pyramid of premises and inferences or upon an array of actual or fictitious social and economic considerations which are supposed to furnish an adequate social policy for the principle. It is seldom that a rule is frankly stated to be the law because a complex conjury of popular notions make the principle appropriate. And still less often is such a reason offered as an adequate justification for a rule of law. Nevertheless, these vague and nebulous popular notions variously branded as public opinion , common sense , the general feeling of mankind and the like are probably responsible for more rules of law than any other single factor and, it is submitted, such a basis for a legal principle is probably the soundest and most adequate that can be found. The fact that such a basis frequently defies accurate analysis because of the impossibility of attributing the exact effect of the myriad of considerations of the experience and heritage of a given generation which constitute the motive power behind social forces, makes it none the less important. By overlooking such forces, we are apt the more easily to be misled in making predictions as to what courts will hold in a given situation. Accordingly, a consideration of the basis for the curious rules and exceptions thereto with respect to the liability of an employer of an independent contractor, must not ignore these variable and illusory factors

The Duty to Control the Conduct of Another

Whether a person is under a duty to make any effort to control the conduct of another to avoid harm to a third person presents a problem in the law of Torts which is generally treated as one of affirmative obligation. The distinction between misfeasance and mere non-feasance is an old one and, while the line is recognized as shadowy in places, it still affords a practical basis for analysis. Whether given conduct is to be described as the improper performance of proper acts or a failure to perform acts which should have been performed is the orthodox touchstone for deciding many tort cases. To be sure, this formula is capable of manipulation, and any given set of facts can be compressed to come within the concept of non-feasance or expanded to fit the mould of misfeasance. The trick is a simple one of selecting that point in the series of happenings from which the analysis is to start. An accident at a level crossing, for example, may logically be regarded as the result of the mere failure of the engineer to sound a warning or make timely application of his brakes; or it can be regarded as the improper operation of the locomotive. But although the formula is thus superficial and inexact, the basic principles for determining duty are the same in all cases. A sounder basis for analysis is the relationship of the parties. If the conduct of the actor has brought him into a human relationship with another, of such character that sound social policy requires either some affirmative action or some precaution on his part to avoid harm, the duty to act or take the precaution is imposed by law. Given a relation, says Judge Cardozo with characteristic insight, involving in its existence a duty of care . .. , a tort may result as well from acts of omission as of commission in the fulfillment of the duty thus recognized by law. What we need to know is not so much the conduct to be avoided when the relation and its attendant duty are established as existing. What we need to know is the conduct that engenders the relation. It is here that the formula, however incomplete, has its value and significance

Lobbyists Before the Court

Many persons and groups do not hesitate to use their influence to persuade agencies of government to make decisions which they like. Of course, if reasonably regulated and ethically done, this is not only proper but often desirable even if the parties have axes of their own to grind. Lobbying before Congress and the bureaucracy was never on such a widespread scale as in the period since the war. It has been a time of great public confusion on both national and international issues, and great economic and social values have been at stake. The astronomical federal budget and the post-war tensions in our foreign affairs have brought the lobbyists to Washington by the thousands. Vast sums and powerful organizations are behind them and whether they utilize mink coats and deep-freezers or employ more ethical methods, they are effective forces in molding our post-war nation

Book Review: The Business of the Supreme Court

This book is avowedly an attempt to reveal the story of political and economic strife which lies hidden beneath the technicalities which govern the jurisdiction of the federal courts. It first appeared in the Harvard Law Review in serial form. The method is historical and the plan chronological. The scholarship is of the highest order and the text is illuminated with extensive notes. Infinite pains have been expended in going to original documentary sources, with a corresponding presumption of accuracy

Final Determination of Domicil in the United States

The death in 1930 of Dr. John T. Dorrance, Campbell Soup magnate, has raised a question of the utmost importance to persons who desire their estates to be subjected to but one inheritance tax and to states desirous of replenishing diminished treasuries by collecting a tax upon every possible estate. Upon the death of Dr. Dorrance, both New Jersey and Pennsylvania assessed an inheritance tax against that part of the estate which consisted of shares of stock in the Campbell Soup Co. which was valued in excess of a hundred and fifteen million dollars. Before any litigation arose out of this situation, those most interested in the estate obviously preferred to pay the New Jersey inheritance tax rather than the Pennsylvania tax, the difference between the two amounting to five million dollars. Indeed, this was clearly the desire of the decedent before his death, as he had taken every precaution known to the legal profession at that time to insure that his estate would be subjected only to the New Jersey tax. Plans of the decedent, however, were upset when the Supreme Court of Pennsylvania in 1932 found that Dr. Dorrance had been domiciled at his death in Pennsylvania and that the estate was thus subject to the death duties of that state. The estate petitioned the Supreme Court of the United States for a writ of certiorari to the Supreme Court of Pennsylvania. The writ was denied without opinion

The Equilibrium Distribution of Gas Molecules Adsorbed on an Active Surface

We evaluate the exact equilibrium distribution of gas molecules adsorbed on an active surface with an infinite number of attachment sites. Our result is a Poisson distribution having mean $X = {\mu P P_s \over P_e}$, with $\mu$ the mean gas density, $P_s$ the sticking probability, $P_e$ the evaporation probability in a time interval $\tau$, and $P$ Smoluchowski's exit probability in time interval $\tau$ for the surface in question. We then solve for the case of a finite number of attachment sites using the mean field approximation, recovering in this case the Langmuir isotherm.Comment: 14 pages done in late