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Judicial Relief For Peril And Insecurity, 45 Harvard Law Review 793 (1932)


In the United States, we are not accustomed to consider the theory of procedure as of profound importance. Possibly the extraordinary technicality of American procedure by reason of which substantive issues are so often relegated to practical oblivion by procedural tactics is in part responsible. At all events, the unsystematic and empirical method of embarking upon and concluding litigation seems to have developed a frame of mind somewhat indifferent to the theoretical function of the judicial process. For example, down to very recent days Justices of the United States Supreme Court gave expression to the view, now happily repudiated, that the award of execution was as essential element of a judicial judgment. Notwithstanding the fact that judicial precedents and opinions have greater weight in the complex structure of American law than they do in any other system - utterances good, bad, and indifferent being seized upon with equal avidity by an undiscriminating bar and bench the fact is that the theory of the judicial function and of judgments has been largely neglected, in striking contrast with experience abroad. Defective theory, in turn, impairs practice.

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theory, Blackstone, private rights, liability