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Professor Rundell confines himself to some policy generalizations and eschews the cases. Initially, such restriction of subject matter might have been permissible; I, for one, have always considered policy more important than mere precedent. But it is the Institute which makes case law its god and even cites this very Restatement as a demonstration of its "fundamental policy" to accept existing law,"not to make it"; and Mr. Rundell himself has continuously rested upon the compulsion of the cases. Since my own case study pointed to other conclusions and since I had seen no convincing grouping of cases marshalled behind the Restatement, I took the initiative of making a collection of cases so complete that the reader could draw his own conclusions. The drudgery of this documentation is now turned off with the statement that this is "excellent source material for a study of section 82"--no reference being made to section 85, which, it is true, I believe to be wholly unsupported by precedent; and then my conclusions as to the specific cases are assailed by unannotated characterizations of my supporting authority as "negligible in number and the converse authority overwhelming," with "such an amount and such a unanimity of American authority" for 82 as to make it mandatory, irrespective of history and social desirability, and with "authority and good sense" for 85. I do not believe Mr. Rundell expects to rebut the citation of specific cases by such daring generalizations, and think the key to his proffered rebuttal is found in his statement that he approaches discussion of this, to my mind, purely intellectual disagreement "with reluctance." Had I not already experienced the Institute's unwillingness, nay, rather inability, to be even aware of, much less to consider, opposing viewpoints, I should have supposed that such intellectual jousting would have been approached with a measure of joy and eagerness.

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A Note on Professor Rundell’s Comment, 53 Yale Law Journal 327 (1944)

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