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Mr. Justice Holmes has referred to a "noble instinct of scientific curiosity to understand why we maintain what now is." "But," he adds, "most even of the enlightened reformers that I hear or read seem to me . . . to become rhetorical just where I want figures."

It is the purpose of this paper, first: to raise the question why, in the light of facts and figures, we have certain common law rules that affect the activity of marketing goods, and second: to ascertain to what extent these rules are, and may continue to be, what Professor Commons calls actual "working rules" in the business community.

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