Slesinger, Donald

English

University of Chicago Law School: Chicago Unbound

BOOK REVIEWSCases and Other Materials on Domestic Relations. By Albert C. Jacobs. Chicago:The Foundation Press, Inc., 1933. PP. 994. S6.5o.It is the function of a casebook in law to make accessible the materials necessary forlegal generalizations in a given branch of the subject. Since the student is not expectedto be an independent worker, and an instructor is assumed somewhere in the teachingprocess, the materials in a casebook can be definitely and intelligently limited. Whatconstitutes a branch of the subject may be logically determined, but more often thisdetermination is the result of an historic accident and the doctrine of stare decisiswhich somehow makes every compiler try to include all the cases and divisions used byall of his predecessors. Because of this filial piety and a tendency on the part of thecompiler to forget the function of his book, case books are frequently too long, and in-dude more cases, and fewer other materials than are desirable.The virtue of the case book as contrasted with the ordinary text or hornbook isthat it reveals the judicial process and introduces the student to the type of reasoninghe will spend the rest of his life trying to confound or justify. The vice of the ordinarycasebook as contrasted with the text is that it fails to include many relevant data.What is summed up in the opinion is there, but the political, social, and economic con-text is absent as are the dramatic personal factors of the trial. The assumption thatthese will be supplied by the teacher implies a broader background than is had bymost instructors who go into teaching after brilliant careers in the law school, ratherthan in practice or in the other social sciences.Although Mr. Jacobs, in his "Cases and Materials on Domestic Relations," was de-termined to supply some of the relevant social data he was not willing to go far in otherdirections. He writes in the preface (p. vii) that "wherever possible an attempt hasbeen made to continue the main portions of the material covered in the older courseson Domestic Relations." True there is new material, and a rearrangement of the usualdivisions of the subject; there are in both text and footnotes extracts and abstracts ofsocial studies; but there is not the much needed fresh attack on family law and familyrelations. He apparently tried to build on to the revered older courses. A genuine con-tribution will not be made until someone starts his compilation not by asking "whatcan be added to what we have to make it a little bit more"; but "what background isessential for a practicing lawyer or research worker in this important field?"The major divisions and subdivisions of the book give it a specious sociologicalframework. On close examination they turn out to be merely new names and not newclassifications. Such divisions as "Family Organizations," "Relations among theMembers of an Organized Family," and "Family Disorganization" provide perhaps abetter filing system, but they throw no new light on the problem of family law andfamily relations. The re-grouping may indicate to the law student where the appropri-ate sociological material can be found, but that is hardly enough to justify a new vol-ume of almost a thousand pages. The inclusion of cases such as those on the testimonyof one spouse for or against another which are conventionally covered in books on evi-THE UNIVERSITY OF CHICAGO LAW REVIEWdence seems to be based on the mere fact that mention of the family relationship oc-curs in the cases. The same principle, or lack of it, might have justified the inclusionof much more on wills, for example.The non-legal material, mainly sociological, is uneven, and badly co-ordinated withthe cases. Much of what is presented is common-sense and historical interpretationwith relatively few concrete data. Thus we have a pleasant introductory section ondefinition of the family, on the Roman, contemporary American, and Russian families,that gives the legal student an entirely erroneous idea of the way a social science expertin family relations attacks his problem. A statement of sociological conclusions, with-out the data on which they are based, in a book containing legal cases supported bysome of the materials necessary for the formation of opinion is likely to make the toughminded legal student a little contemptuous of the tender minded sociologist. That Mr.Jacobs shows some of this entirely unjustifiable contempt is evident from the type ofsocial question he asks at the conclusion of various setions. "'What would be the socialconsequences flowing from the adoption of one or the other view?" (p. 205, n. 2). "Whatis the fundamental aversion everywhere found to the marriage of near relatives otherthan the physical question?" (p. 254, n. 2). "How effective are the laws of the type setforth above?" "Do they to any extent act as a deterrent in the prevention of cases ofdesertion?" "How effective could legislation be in keeping the mother with her chil-dren during their early years?" (pp. 788, 799, n. 1, 2, 5). The sociologist called to mindby these questions is a genial judge in a study mulling over the opinions of earlier socialscientists, or figuring out answers on a purely common-sense basis. The law student isgiven no hint of the arduous process of rational analysis, the search for relevant data,and the complicated statistical techniques that enter into the solution of any of theabove problems.Sometimes, of course, in the interest of economy, and after their method of researchhas been made clear, "opinions" of sociologists may be set down for what they areworth. Then, however, Mr. Jacobs could economize still further by abandoning thegeneral form of the casebook as far as the opinions are concerned, and adopting thetextwriter's method of clarification and summary. He is so buffaloed by the casebookform that he even includes quotations from himself giving them the specious au-thority of a footnote reference.On the few occasions where data instead of conclusions are presented the value of asocial science casebook is suggested. On page 862 divorce statistics from 1924 to 1931are summarized, and on page 899 the legal causes of divorce taken from "Lichtenber-ger, Divorce a Social Interpretation" are given, and the student immediately has some-thing to bite into. The questions raised by these data will be answered by analysis andadditional data and not by ad hoc speculation or appeal to authority. If Mr. Jacobshad included more concrete social material; if he had defined his field, and then rigor-ously limited his choice of cases to those which threw light on it; if he had taken theintellectual responsibility of co-ordination and interpretation; if he had included in his"social materials" some of the highly important trial court statistics, and materials onadministrative problems, such as those of the juvenile court, he could have produced asmall book that might have contained a genuine contribution. As it is, it is just anothercompilation making a bow toward the demand for co-ordination, but achieving noneof it.DONALD SLESINGER** Professor of Law, University of Chicago Law School.

Review of \u3ci\u3eCases and Other Materials on Domestic Relations\u3c/i\u3e by Albert C. Jacobs

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1153&amp;context=uclrev

Review of \u3ci\u3eCases and Other Materials on Domestic Relations\u3c/i\u3e by Albert C. Jacobs

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