Beutel, Frederick K.

English

Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 1972 Issue 4 January 1972 Review of “Justice Joseph Story and the Rise of the Supreme Court,” By Gerald T. Dunne Frederick K. Beutel Saint Louis University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Judges Commons Recommended Citation Frederick K. Beutel, Review of “Justice Joseph Story and the Rise of the Supreme Court,” By Gerald T. Dunne, 1972 WASH. U. L. Q. 827 (1972). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1972/iss4/14 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWSJUSTICE JOSEPH STORY AND THE RISE OF THE SUPREME COURT. ByGerald T. Dunne. New York: Simon and Shuster, 1970. Pp. 459.$12.95.This book is a compilation of a long series of studies on the life andtimes of Justice Story together with many additions which appear forthe first time in this volume (p. 5 acknowledgements) giving us amuch-needed biography of Mr. Justice Story.It is, in a sense, a parallel to Beveridge's Life of John Marshall butwritten on a totally different level. It compresses the life of this com-plicated lawyer, statesman, business man, philosopher and legal schol-ar, whose influence on the law of the United States is more widespreadthan that of Marshall, into about one-fourth the volume of Beveridge'swork. It is a lawyer's and historian's book which requires broad, de-tailed knowledge of the contemporary discussions and political trendsfor full understanding of the author's exposition. In fact, so great isthe author's intimate knowledge of the cases and of the historical andcommercial conditions of the times in which Story lived and workedthat he often becomes almost completely subjective. This makes thebook an excellent introduction to further study of the historical mate-rial with which the author is obviously intimately acquainted, butwhich a non-professional reader or even a lawyer may have difficultyunderstanding.Throughout the entire work there emerges a picture of Mr. JusticeStory's view of American national law based on the Constitution andnot on English precedents (pp. 98 ff.; pp. 129 ff.); his brief fightagainst grievous conditions of the early Federal union (ch. IX); hisloyalty to stated constitutional precepts even when that involved legal-izing slavery (pp. 240 ff.); and his broad scholarship and acquaintancewith the law and philosophy of civil law countries as well as the Eng-lish precedents, which he decided properly to ignore when dealing withquestions of admiralty (pp. 99 ff.), bankruptcy (pp. 145-47; pp. 384ff.: p. 403), corporations (p. 142, pp. 266 ff.) and state laws. Story's827Washington University Open Scholarship828 WASHINGTON UNIVERSITY LAW QUARTERLYcontribution to the development of American law through his numer-ous treatises and his reorganization of the Harvard Law School isbrought out in a summary but forceful fashion.Mr. Dunne touches upon the legal technicalities, the political issuesof the times, and the complicated social problems like a harpist scan-ning his strings. This leads to interesting chords but may cast somesuperficial doubt on the basic soundness of some of the conclusions tobe derived from his inferences. No place is this better illustrated thanin the author's discussion of the great Justice's philosophy on the natureof law itself, which resulted in the decision of Swift v. Tyson' and itssubsequent overruling by Erie Railroad v. Tompkins. 2 This is coveredin approximately twelve pages (pp. 403-14) wherein Mr. Dunne suc-ceeds in touching upon most of the arguments of constitutionality,statutory interpretation and legal philosophy which have surroundedthese two cases over the last thirty years.Swift v. Tyson, it will be recalled, was the case in which the SupremeCourt unanimously held that, under section 34 of the Judiciary Act, itwas not bound in a diversity of citizenship case arising from New Yorkto follow the decisions of the Supreme Court of New York as to wheth-er a pre-existing debt constituted value so as to make one a holder indue course of negotiable paper, which decision Mr. Dunne, with tonguein cheek, concedes is unconstitutional (pp. 403-04).Section 34 of the Judiciary Act provided "that the laws of the severalstates . . . shall be regarded as rules of decision" in such cases. Thecourts of New York having decided, contrary to the Law Merchantand most court decisions, that a pre-existing debt was not "value,"the simple question before the court was whether or not such decisionswere "law." In other words, whether or not the doctrine of stare de-cisis was part of the law of New York. The whole controversy sur-rounding these cases has overlooked the constitutional provision thatjudicial decisions, under article III, with the exception of equity, lookwholly to the past, and laws are regulations looking to the future.Therefore, if courts' decisions can become "rules of law," courts arelegislating. This is impossible for the federal courts because, by arti-cle I, section 1 of the Constitution, "all legislative power" is vested inthe Congress, so without congressional delegation no federal court canmake rules for the future.1. 41 U.S. (16 Peters) 1 (1842).2. 304 U.S. 64 (1938).[Vol. 1972:827https://openscholarship.wustl.edu/law_lawreview/vol1972/iss4/14Vol. 1972:827 BOOK REVIEWSInsofar as the doctrine of stare decisis attempts to do this, it is notfound in the definitions of law in the Constitution of the United States.'It is strictly an English common law anomaly based on the illogical andunscientific argument that the law should grow from the particularcase to general rules. Thus courts, by making decisions in single cases,can bind the future. It has been outlawed in civil law countries sinceJustinian4 and was not part of the definition of law contained in theConstitution of New York of 1821,- under which Swift v. Tyson wasdecided. Story, being fully acquainted with the civil law and with theconstitutions of the United States and of New York, of course found nodifficulty in writing the opinion excluding the doctrine of stare decisisfrom the definition of "laws" in section 34 of the Judiciary Act. It isonly muddle-headed, traditional thinking which has caused Americanlawyers to apply the doctrine of stare decisis in discussing the implica-tions of the term "laws" in the "rule" of Swift v. Tyson.Mr. Warren's attempt to read stare decisis into the Judiciary Act6is not one of his better achievements because it begs the question3. U.S. CONST. art. VI:This constitution, and the Laws of the United States which shall be made inPursuance thereof; and all Treaties made, or which shall be made, under theAuthority of the United States, shall be the supreme Law of the Land....Nowhere are court decisions or stare decisis ever mentioned. Contra, and plainlywrong if taken out of context, see Mr. Chief Justice Warren and the whole Court,Cooper v. Aaron, 358 U.S. 1, 18 (1958): "It follows that the interpretation of theFourteenth Amendment enunciated by this Court in the Brown case is the supreme lawof the land."4. JUSnrNUN CODE, VII-45, 13; see C. CIrv. art. 5, nn. 107-10 (Dalloz); R. POUND,READINGS IN ROMAN LAW 11-12 (2d ed. 1914); B. WRIGHT, FRENCH CIvIL CODE 2 n.c(1908).5. N.Y. CONsT. art. VII, § 13 (1821) defined "law" as follows:Such parts of the common law, and of the acts of the legislature of thecolony of New York, as together did form the law of the said colony, on thenineteenth day of April, one thousand seven hundred and seventy-five, and theresolutions of the congress of the said colony, and of the convention of thestate of New York, in force on the twentieth day of April, one thousandseven hundred and seventy-seven, which have not since expired, or been re-pealed, or altered; and such acts of the legislature of this state, as are nowin force, shall be and continue the law of this state, subject to such altera-tions, as the legislature shall make concerning the same. But all such parts ofthe common law, and such of the said acts, or parts thereof, as are repug-nant to this constitution, are hereby abrogated.That stare decisis was no "part of the common law" of New York at that time isclearly demonstrated by Mr. Justice Story's citation of New York decisions on value,41 U.S. (16 Peters) at 16, 17.6. Warren, New Light on the Federal Judiciary Act, 37 HMAv. L. REv. 49, 86 ff.(1923). Cited by Dunne at 406 n.6.Washington University Open Scholarship830 WASHINGTON UNIVERSITY LAW QUARTERLYwhether court decisions are "law" by assuming that the doctrine ofstare decisis as law was in the minds of the Congress when it passedthe Judiciary Act, the very question he is attempting to prove. Onlya person obsessed with the idea that stare decisis is law could reach theconclusion on Warren's evidence that the Congress in section 34 in-tended to include state court decisions in the term "laws" binding onthe federal courts. The fact that the words "unwritten common law"were stricken out by amendment equally supports an opposite infer-ence. Stare decisis for two hundred years has dulled the wits of Anglo-American lawyers and impeded the development of a just Americanlegal system. 7 Mr. Justice Brandeis's citation of Warren's article inErie" and his subsequent strictures on constitutionality go far beyondanything that can be found in Warren's thesis.9 It is undoubtedly true,as Mr. Dunne himself points out so effectively (p. 404), that as a con-temporary, Story knew far better the meaning of section 34 of the Judi-ciary Act than did Warren or Brandeis with their vision clouded bymodem ideas of stare decisis.The fact that Mr. Dunne indicates this conclusion in such a sum-mary manner without even discussing stare decisis and without evenbothering to question Mr. Justice Brandeis's abortive attempt to putthe case of Erie v. Tompkins on constitutional grounds0 is typical ofthe manner in which the author cuts his way through the underbrush oflegal technicalities to reach these conclusions without even botheringto state or discuss the premises.It must be said that, in spite of its briefness and subjectivity, thisbook gives a much needed picture of one of the greatest American le-gal minds. Though you will not find it easy to read, it is well worththe effort.FREDERICK K. BEUTEL*7. See F. BEuTrL, EXPUMEmNTAL JURISPRUDENCE 70 ff (1957).8. 304 U.S. at 73.9. On this point, see Mr. Justice Reed's concurring opinion rejecting stare decisis,304 U.S. at 91, cited with approval by Dunne at 403 n.l.10. 304 U.S. at 78 ff. The learned justice overlooks U.S. CONST. art. III, sec. 2,pars. 1 & 2; art. I, see. 8, pars. 9 & 18, which clearly give Congress the power to createfederal courts and to prescribe their rules of law in places where they have jurisdiction,of which this is one. Mr. Justice Butler and Mr. Justice Reed in their opinions makethis too clear for argument. See 304 U.S. at 80.* Visiting Professor of Law, St. Louis University School of Law.[Vol. 1972:827https://openscholarship.wustl.edu/law_lawreview/vol1972/iss4/14

Review of “Justice Joseph Story and the Rise of the Supreme Court,” By Gerald T. Dunne

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Review of “Justice Joseph Story and the Rise of the Supreme Court,” By Gerald T. Dunne

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