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TOP CLIPPING Jk 7 " palbecy peace / Wha eae ve on MARRED FILE AND INITIALED {E23 - ae * ' ~ = a OF r ‘THESE DAYS: vane 4, az Pe oh ‘Court Guilty of. Uns; fe Practice : By GEOROE E. SOKOLSKY ©. 2 4 ~~ oF awe - Be — weir eee hee THE ‘CONTROVERSY that is arising over the a me Court, Representative Wright Patmay of _ Texad fias raise pertinent question, namely, that “Instead of basing decislons upon briefs submitted by litigants, the court briefs itself, using, at times; mate-_ » Hal mot submitted to it by either party, but selected - by the justice himself or “by his law clerk who may - « §ntroduce matter which, Sccording to Patman, is okie Tecognized ahd non-authoritative,” <n N aR Td Bont: “ Patman said concerning thiss -Eo lt. ny * ae ». Formerly; we had every reason to ‘expect “that” . fectsions by our Supreme Court woyld be controlled: | : , by. the standards outlined by the conaution the law,/ . the facts of the case and By the s reasoning of the *,' = Justices’ In the past ever\though we felt the court, 7 had decided a case wrongly we nevertheless felt that’ i" =We could understand that the court had a basis In the" ; record of the hearing in the case for ita decision, rags a sine ‘difficulty now sriaes trom the ‘fact that text ka, law reviews, propagandistic. material from: t presse groups ang all sorts of ontside factors ental ‘into ihe formation of a Mecision. Patmsn . say, ong ‘this’ that if the court in preparing lta decisions used, ‘material without’ notifying ‘¢otinsal on. both “ sid neither side has the o por fanlty. hes meet. tnents of ft these t " crise and a a oe *, baad 7 -2ISSE FY. NOT RECORDED 141 OCT 11 1957 — —————— a ‘ alluted heavily. with | extranéous ‘miscellaneous ‘matte designed to overcome the vario “the lobhylate posifig as legal au eran However, whatever the Supreme -Cot comes authorithtive, Therefore an article published in ‘a law review could become the basis for the law o! the land once a Supreme Court justice’ adopted it- foi & majority opinion, everi though the article in quéstiot . be written by a second’year law student mho has ho _ yet cut his eye-teeth. *.2, Fert » ae: waa $e ., + The problem here, it seems ‘to me, is noe 36 mud ” what material the justices employ to form their opin: jons, as that ‘counsel ahould’ know. what It is so tha they may argue a point, Otherwise, it would seem futil to prepare a case, recognizing that a third brief wouk he sulinitted by an anonymous researchér employed bj _ the court and against whose views and arguments n. ‘phe would have a chance “to gay anything. Fatman made an interesting observation in this connection: i . “ResearcR ‘cenducted” by. the Library of Congrési ” regarding all of’ the decisions made by the Supreme - Court of the United States in antitrust cases from 189 . to. 1957 discloses that in no antitrust case prior to 1941 ? had the Supremie,Court cited’as.an authority a law- - Feview article on the ‘point.4n issue and upon which _ dt telted*tor decikion in the tase. However, the study - has shpwn that commencing in 1940 the influence oi daw-review articles and of other publications has grown “steadily with the Supreme Court of the United States in its consideration and decision in antitrust castg..; X ee ae ‘Element of. Surprise: om: re *¢. , % - asa, prt : * Do the fustlees always know who wrote the articles in the Jaw reviews? Are these articles always signed? Do the justices study the backgrounds of the men who wrote those articles to determine whether what they ‘say ig based non &nund echolerehin ar le nenns onde aT SEM SE STUER Whee ed AD eer ‘ . for a cause? Representative Patman makes the point that in two important cases, the citations, one from . ‘the Hatvard Law Review and the other from the Yale Law Journal bore vio signatures,the authors of the material being anonymous. Perhaps the justice of the Supreme Court who used these items in his opinion _ communicated, with the editors of Wese publications _- bo obtain the necessary information. t counsel for “neither side could khow in advance tha} these items _ Would be'cited in a prevailing Supreme Court decision, oe ‘There is an: unnecessary element of surprise which ‘eoiaa “cauke ‘a ‘miscarriage of justice; : gare fae i par Lawyers spending months preparing paring briets, af , enbrmous expense to their clients, are sudd y faced by ah artitle th a law journal which neither | wed be weet FT oe ‘ havé read or noticed of considered worthwhile. . In tact, tép all we khow, the justice, in a Summer mood, may. ‘himbelf:Have written the anortymous article which he 10W w cies as authoritative. It is not a safe aber age ae Wr ir ioe Petare Ritts Sa ES”