Westerfield, H. Bradford

English

Yale Law School Legal Scholarship Repository

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it is too much to hope that representation of such quality will be achieved
always, or even usually, in the mass of relatively small cases which are the
only contacts of most citizens with the litigation process. To reach a sound
appraisal of the adversary system, it must be considered in comparison with
other possibilities. The alternative most often suggested is that we depend
more upon impartial judges and experts to do the fact-finding without benefit
or interference of advocates appearing on behalf of the parties. Declared
advocates might thus be eliminated or relegated to a smaller role, but not
advocacy. Advocacy would be in the hands of judges and experts and would
be expressed in such ways as their choice of lines of inquiry and of witnesses,
and their penchant for acceptance of their own first thoughts and for resistance
to other ideas. Impartiality of the fact-finder would not insure equality of
advocacy of the competing points of view. On the whole, something respect-
ably near to equality of advocacy and sound fact-findings is more likely to be
achieved within the adversary system than within a system not making use
of persons frankly designated as advocates.
I do not mean to say that the book's author appears ready to scrap the ad-
versary system. But I am concerned that his foreword contributes to a
popular confusion (not exclusively among laymen) which treats every imper-
fection of the adversary system as a ground for condemnation, without distinc-
tion between imperfections which are avoidable and others which are inevitable
in any system of human judgment.
The how-to-do-it book is currently as popular among lawyers as the do-it-
yourself kit among householders. Each is useful. But even painstaking use
of the householder's kit rarely produces anything like the picture on the
package. Kits and books are best supplemented with some frank consideration
of how to live with divergence between the picture and the product, which,
despite its shortcomings, may be a bargain. The worth of the adversary system
is seen in comparison with other possible systems, not in comparison with the
unattainable ideal of completely closing the gap between raw fact and forensic
fact.
ROBERT E. KEETONt
CHARLES EVANS HUGHES AND A.MERICAN DEMOCRATIC STATESMANSHIP. By
Dexter Perkins. Boston: Little Brown & Co., 1956. Pp. xxiv, 200. $3.50.
PROFESSOR Dexter Perkins, leading American diplomatic historian and au-
thority on the Monroe Doctrine, has undertaken a brief survey of the public
life of Charles Evans Hughes. Unfortuqately the study adds little to our com-
prehension of the statesman 'beyond what has already been provided in the
works of Merlo Pusey and Samuel Hendel. 1 In his final paragraph Mr. Per-
tProfessor of Law, Harvard Law School.
1. PUSEY, CHARLES EVANS HUGHES (1951); HENDEL, CHARLES EVANS HUGHES AND
THE SUPREME COURT (1951).
19571
THE YALE LAW JOURNAL
kins warns his readers that "it is easy for the scholar to take his scalpel and
dissect, but it is more important to understand and to appreciate a great man
when he appears."'2 One sympathizes with Mr. Perkins's hesitation to see the
bits and pieces of an eminent career scattered beyond reassembly by the im-
pact of the learned knife of critical analysis; but this reader doubts that under-
standing of a figure as austere as Hughes can be communicated-or perhaps
even acquired-without a more precise and penetrating set of interpretive con-
cepts than Mr. Perkins has evidently employed for his task.
The rather loose framework of analysis in which the biography is set is in-
dicated in the title and amplified with a definition of "democratic statesman-
ship" which puts prime value on governmental adaptability to a changing
social scene. "Conservative" American leaders, to Mr. Perkins, include those
who have tended to emphasize sound administration, the entrepreneurial spirit,
checks and balances (particularly judicial power), and a cautious attitude
toward change; "liberals" have been more ready to embrace change, strongly
humanitarian, and concerned with freedoms of the mind. Various aspects of
Hughes's public career can be shown to have fitted every one of these cate-
gories; thus considered, not even a clear succession of stages can be found. So
Mr. Perkins is content to conclude that Hughes's "mind did not operate in
terms of fixed theory; it was singularly practical." 3 But at least it was adapt-
able; it adjusted to new times and played a part in the achievement of new
concepts of government in America. And therefore "in the largest sense
Hughes was a statesman."'4
Considering the copious debate in intellectual circles which the meaning of
liberalism and conservatism (with the emergence of the New Conservatism)
has provoked in recent years, one cannot help but wish that Mr. Perkins had
refined his own definitions somewhat further. The author deserves credit for
his willingness to use the terms with many of their peculiarly American con-
notations and not to twist the conservatism of the United States into that of
Edmund Burke. But if the terms so used fail to help us to comprehend the
style of Hughes's thought exactly and leave us simply calling a man of his
intellect and achievement "singularly practical," then a different set of analy-
tical concepts is needed. Doubtless Hughes was indeed a liberal, conservative,
practical, adaptable, great American statesman. So described, perhaps we can
intuitively come to appreciate the man, but not to understand him.
Mr. Perkins's specialty is American diplomacy, and consequently it may not
be surprising that he seems weak in interpreting the role Hughes played in the
judiciary, as Associate Justice of the Supreme Court from 1910-16 and as
Chief Justice from 1930-41. Even the layman audience to which this book is
mainly directed deserves a fuller explanation of the meaning of particular judi-
cial opinions and a less simplified discussion of the significance of judicial
2. P. 190.
3. P. xxii.
4. P. xxiv.
[Vol. 66
REVIEWS
review and the inner working of the Court than are found in this biography.
One is left with sentences like these: "Many of these cases [during Hughes's
Associate Justiceship] dealt [liberally] with the position of the worker. In
several of them Hughes spoke for all nine justices, and the fact that he wrote
the decisions is significant." 5 Of what? Mr. Perkins does not say.
E:cessive mystery is left to shroud the high point of Hughes's judicial
career, the years 1936-37. Concerning the "switch in time" we are told that
Hughes in his autobiographical notes "certainly implies that he himself was not
influenced by the threat to the integrity of the bench."0 Mr. Perkins, for his
own part, barely hints that he cannot quite believe Hughes in this, but refuses
to commit himself as to probabilities and fails even to organize the evidence
on this aspect of Hughes's claim to "democratic statesmanship" so that readers
can carefully evaluate it for themselves. "Whether [Roosevelt's smashing re-
election and court-packing proposal] had or had not anything to do with the
shift in Hughes's attitude is, in the case of a man so discreet as Hughes, a
matter on which it is distinctly unwise to be dogmatic."'7 Granted, certainly.
But an interpretive biography, as contrasted with a mere chronicle, at least
owes the reader a careful statement, duly qualified, of the author's own best
judgment regarding the most crucial episodes in the life of the subject-and
in Hughes's life only the Washington Naval Conference (if that) ranks higher
in importance than his conduct in 1936-37.
There are cracks in the marble curtain surrounding the Court in those years
through which at least a little more light can be glimpsed than is evident in
Mr. Perkins's appraisal. Even the meaning of public evidence in this period is
clouded by a loosely topical arrangement of the key cases, which fails to illus-
trate how marked was the change in mood in Hughes's opinions over the
years 1934 (the Minnesota moratorium cases),8 1935 (Schechter),9 1936
(Butler and Carter Coal),1° and 1937 (the Wagner Act cases).1 A chrono-
logical approach to this period would have afforded a more sensitive awareness
of the currents of social and political strife through which Hughes sought to
steer the Court, and of how much he was himself buffeted by them. As it is,
Mr. Perkins conveys an impression that Hughes's own record was more con-
sistent than it truly was. The Minnesota moratorium and Bvttler cases are
noted as ex:ceptions (in opposite directions), but the crucial shift on labor
relations between Hughes's opinion in Carter Coal (1936) and his decision in
5. Pp. 39-40.
6. P. 183.
7. P. 150.
8. Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).
9. A.L.A. Schechter Corp. v. United States, 295 U.S. 495 (1935).
10. United States v. Butler, 297 U.S. 1 (1936) ; Carter v. Carter Coal Co., 298 U.S.
238 (1936).
11. NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937); NLRB v.
Fruehauf Trailer Co., 301 U.S. 49 (1937); NLRB v. Jones & Laughlin Steel Co., 301
U.S. 1 (1937).
1957]
THE YALE LAW JOURNAL
the Wagner Act cases (1937) is minimized: "Hughes's opinion in this
[NLRB] case was by no means inconsistent with much of his previous judicial
thinking. But what of Justice Roberts ?-12 Thus, to Mr. Perkins, the "switch
in time" was a switch by Roberts, to which Hughes's persuasion may have
contributed. That it was also in important respects a switch (some might
argue a switch back) on the part of Hughes himself is a view which Mr.
Perkins appears to slight in his failure to state systematically his own estimate
of the 1936-37 maneuvers.
In chapters dealing with Hughes as a politician and as a diplomat Mr. Per-
kins finds himself on surer footing. The contribution Hughes made to Ameri-
can insurance regulation as counsel of the 1905 investigation in New York and
his later progressive activities as governor of the state (including support to
public power-generating in 1910) are set forth succinctly, and due recognition
is also given to Hughes's relative ineffectiveness in dealing with regular party
organizations. Mr. Perkins likewise shows how intraparty difficulties hampered
Hughes again when he was campaigning for the Presidency. The effects of the
earlier battles between Old Guard and Progressive Republicans were further
complicated in 1916 by the difficulty of bringing the gap between the pacificism
and isolationism that were widespread in the nation at large, and the desire of
many Easterners, including Hughes himself, to censure Wilson for an exces-
sively weak policy toward Germany. Hughes was not effective in re-uniting
the GOP for victory, despite the advantage his party held as the basic national
majority from 1896 to 1932.
Hughes's greatest success was scored as Secretary of State in the Harding
Administration. TMost diplomatic historians would rank him with John Quincy
Adams and William H. Seward among the most eminent holders of that office.
Mr. Perkins, here in his own field of special competence, presents a compact
and balanced survey of Hughes's diplomacy. The Secretary is rightly given
high marks for executive ability within the department, for public relations
skills and for genuine idealism-above all for success in marshalling talents
and resources to achieve carefully chosen diplomatic objectives. "Almost every-
thing that Hughes tried to do he did, and did well."1 3 But later events super-
seded his policies. "There is less left today of his work than of some Secretaries
less worthy than he."1 4 Ten years of relative peace in the Pacific can largely
be credited to Hughes's efforts, but in the end the Washington Settlement
broke down disastrously-and in part because Hughes himself, like his Re-
publican contemporaries generally, had failed to link the nation's trade, tariff
and immigration policies with its general foreign policies.
Clearly Charles Evans Hughes played a remarkable variety of prominent
roles, but all of them, interestingly, were among the roles most closely asso-
ciated with the tradition of American Conservatism (in its evolutionary, non-
12. P. 182.
13. P. 140.
14. Ibid.
[Vol. ¢6
REVIEWS
reactionary aspect). The family and professional background which prepared
Hughes for these tasks and the spirit in which he performed them were like-
wise suggestive of a recurrent type of American that has strongly shaped our
history. The weaknesses as well as the strengths of this tradition could be
illuminated by an interpretive biography of Hughes which would be more
sharply focused than is Mr. Perkins's. Other approaches might also prove
revealing; Oscar Handlin in his Editor's Preface suggests a "corporation law-
yer in politics" theme. The available biographies of Hughes still leave much
room for further insight into the remarkable career of an elusively austere
American statesman.
H. BRADFORD WESTERFIELDt
MONOPOLIES AND RESTRICTIvE TRADE PRACTICES. By Michael Alberry, Q.C.
and C. F. Fletcher-Cooke, M.P. London: Stevens & Sons Ltd., 1956. Pp.
xvi, 185. $4.65.
To lawyers and students interested in the development of antitrust laws
outside the United States, the British Restrictive Trade Practices Act, 1956,
which became law on August 2, 1956,1 is a significant landmark. In contrast
to the laissez-faire approach of the common law, the British Parliament has
produced a tough, well-balanced, tightly drafted piece of legislation, which has
as its basic theme the presumption that restrictive trade practices are contrary
to the public interest. The act is set out in full in an appendix to this book,
and its provisions are summarized and explained in detail by the authors.
The subject matter of the law falls into three parts. In Part I are set out
the requirements for registration of restrictive agreements, the procedure for
review by a new Restrictive Practices Court, and the substantive grounds
upon which parties may overcome the presumption that all registrable restric-
tions are contrary to the public interest. In Part II are set out prohibitions
against collective resale price maintenance and provisions for the enforcement
of resale price conditions by suppliers against persons acquiring with notice.
In Part III the 1948 Act (The Monopolies and Restrictive Practices [Inquiry
and Control] Act, 1948)2 is amended to exclude from the sphere of the Mo-
nopolies Commission the restrictive arrangements covered by the 1956 Act.
This Part also includes requirements for registration of export agreements
with the Board of Trade.
There are a number of features of this law which distinguish it from the
American type of legislation. There are no criminal penalties except for fail-
ing to comply with notices given by the Registrar to furnish particulars,
information and documents relating to registrable agreements or for knowingly
tAssistant Professor of Political Science, University of Chicago.
1. 4 & 5 ELIz. 2, c. 68.
2. 11 & 12 GEo. 6, c. 66.
19571


Perkins: Charles Evans Hughes and American Democratic Statesmanship

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Perkins: Charles Evans Hughes and American Democratic Statesmanship

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