Tefft, Sheldon

University of Chicago Law School: Chicago Unbound

THE UNIVERSITY OF CHICAGO LAW REVIEWtenary of Story's treatise, to salute that work as the beginning of a new era in thetreatment of conflict of laws. It is to be regretted that the present volume does notcontain Professor Lorenzen's essays on the French and German conflict of laws,3which would no doubt have extended the length of the book unduly unless othersacrifices were made. It is also to be regretted that the volume does not include ashort piece published in i941 on unification between Latin America and the UnitedStates in the rules of private international law relating to commercial contracts. 4 Thatessay, though brief and not fully documented, is a suggestive study in the possibilityof securing greater harmony between conflicting systems of conflict of laws by piercingthe crust of absolute rules to reach the core of objectives.While a collection of essays lacks something of the coherence of a systematic treatise,it has one distinctive merit. It constitutes a kind of intellectual autobiography. Itwould be surprising if a mind as searching as Professor Lorenzen's had failed to takenew ground as reflection mounted. Such a movement is best revealed in his essays onthe renvoi and the theory of qualifications. Starting out with a rather stiff disapprovalof the renvoi and a rather staid insistence that qualification or characterization mustbe made according to the law of the forum, he shifted to a more qualified position inboth these fields. This is not the place for a discussion of these subtleties, howeverrare it is for a writer on the conflict of laws to resist them. It may perhaps suffice tosay that the later position adopted by Professor Lorenzen is one in which commonsense is not displaced by the momentum of abstract logic, as is the besetting dangerwhen one turns to these subjects.This work will continue to leave its mark on the minds of those who are called uponto deal with one of the most elusive and at the same time fundamental areas of thelaw. Like all important works in the realm of ideas, it represents not a final positionbut a marker on the road to the accommodation of views. Even those who do not agreewith all of Professor Lorenzen's formulations would undoubtedly accept this estimate.For, to change the figure, in the creation of pearls in the life of ideas, it falls to the lotof the same scholar to be now the bivalve, now the grains of sand.PAUL A. FnzuND*Real Covenants and Other Interests Which "Run with Land". By Charles E. ClarkChicago: Callaghan & Co., 1947. Second edition. Pp. lv, 310.In reviewing the first edition of Clark on Real Covenants and Other Interests Which"Ru with Land" for the readers of the Harvard Law Review, Professor Chafee, afterpredicting that the monograph would be of great value to practitioners and lawteachers, emphasized the confusion in the law which Judge Clark's monograph had re-vealed and concluded with the suggestion that reform would not be possible until astatute agreeable to a considerable number of legal thinkers was drafted. He proposed336 Yale L.J. 731 (1927); 37 Yale L.J. 849 (1928); 38 Yale L.J. x65 (1928); 39 Yale L.J.804 (1930).4 Uniformity between Latin America and the United States in the Rules of Private Inter-national Law Relating to Commercial Contracts, iS Tulane L. Rev. 165 (I94i).* Professor of Law, Harvard University.BOOK REVIEWSthe American Law Institute as the agency most likely to solve the difficulties whichJudge Clark had so ably brought to light.!The second edition of Judge Clark's monograph, which has now become a classic,demonstrates that confusion, if not chaos, continues to dominate the American law ofcovenants. The text of the first edition has been reprinted with few changes for, asJudge Clark reports, "thoughtful reconsideration .... afforded conviction that nochanges of substance should be made in those conclusions."2 In addition to the 1929text, the second edition contains a seventy-five page appendix entitled "Exceptions tothe Restatement of the Law of Real Covenants." This, which is largely a reprint ofarticles by Judge Clark and by Mr. Henry Upson Sims which originally appeared inrecent volumes of the Yale Law Journal and the Corimll Law Quarterly, is a vigorousand spirited, if not heated, attack upon the American Law Institute's Restatemmit ofthe Law of Covenants and its Reporter, Professor Rundell. Whether one agrees withJudge Clark or with Professor Rundell as to what are the rules which the Americancourts have developed, it must be evident that, in this instance, the attempt to restatethe law has not yet served to clarify it. The failure of stare decisis, even though thecases have been subjected to the searching analysis of the American Law Institute, toafford a reasonably clear set of rules indicates, as Professor Chafee suggested in 1929,that comprehensive legislation is essential. In 1941, Judge Clark made a start by pro-posing legislation to limit the duration of covenants and related interests to thirtyyears.3 In the second edition of Covenants he has continued his efforts toward thisgoal by the addition of a new chapter entitled "Legislative Restriction of RunningInterests." None of the drafts thus far formulated covers the entire field of covenantsand hence the need for a comprehensive statute to preserve the advantages and toavoid the defects of the common law remains unsatisfied. So long as this continues,many programs for the development of land will either be blocked or seriously impededby antiquated restrictions or by doubt and uncertainty as to the rules of law whichare applicable. It is to be hoped, therefore, that agencies which are both influentialand enlightened will undertake the task of drafting a model comprehensive code ofthe law of covenants and related interests in land.SHELDON TEEFT*Right To Fly, The. By John C. Cooper. New York: Henry Holt & Co., 1947. Pp. x,380. $5.oo.The principal theme of Mr. Cooper's book is that air power is the sum of militaryand civil aviation, and not military force alone. This seems to be a simple enough con-cept, and it would be surprising if anyone could be found to deny it. We can be surethat a true-or-false test on this'issue would produce an almost unanimous answer of"true" from the militarist, the statesman, and the ordinary citizen. The difficulty isthat too many of those in authority act as though it were not true. Mr. Cooper has donea real service in developing this point, since the future well-being of the world may de-pend upon a course of action that recognizes the inseparability of civil and militaryair power.143 Harv. L. Rev. 334 (1929). 2 Preface.3 Clark, Limiting Land Restrictions, 27 A.B.A.J. 737 (1941).* Professor of Law, University of Chicago.

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Review of \u3ci\u3eReal Covenants and Other Interests Which  Run with Land \u3c/i\u3e by Charles E. Clark

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Review of \u3ci\u3eReal Covenants and Other Interests Which Run with Land \u3c/i\u3e by Charles E. Clark

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