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The American Law Institute has undertaken to "restate" the common law of the United States. Mr. Justice Holmes, the Nestor of American legal scholarship, has recently said that there is no such common law. He thinks that it is "an unconstitutional assumption of powers" for the courts of the United States to attempt to establish such a common law in a state whose courts have declared a different law. His statement has much logical and practical force. There is no such "unconstitutional assumption of powers," however, on the part of the American Law Institute. The reason for this is that it assumes to have no power whatever, except the power that is derived from influence on the minds of men. Its work represents an effort on the part of men throughout the entire country to create a common law in place of
variation and conflict. No doubt the effort has presented itself to many minds as merely an attempt to state an already existing universal system of rules. This may indeed explain why it has been dubbed a "Restatement." But even though we must admit that these United States possess no august corpus juris, it seems certain that the fallacy of its existence is accompanied also by a strong general desire for its existence. No doubt, with our present
political organization it is impossible to attain the object of this desire. It is not impossible, however, for the American Law Institute, if supported by the sentiment of the bench and bar throughout the country, to make very substantial progress toward the establishment of a common law, especially by clarifying certain portions of the law that are now most confused and
productive of unnecessary litigation, and by definitely chooseing one rule
out of a number of competing rules in cases where there is now conflict of decisions.
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