Editorial Committee of the Cambridge Law Journal

Criminal Procedure from Arrest to Appeal by Lester Bernhardt OrfieldReview by: R. M. J.The Cambridge Law Journal, Vol. 10, No. 2 (1949), pp. 313-314Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4503859 .

Accessed: 12/06/2014 11:01

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 195.78.108.60 on Thu, 12 Jun 2014 11:01:10 AMAll use subject to JSTOR Terms and Conditions

Book Reviews Book Reviews

constitutional and political machinery. He addresses himself to the general reader and, though much concerned with constitutional law, steers clear of strictly legal problems. Two sections are devoted to the general principles of the Federal Constitution. The Executive (Governor-General and Cabinet), Administration (Civil Service), Legislature and Judiciary are then each treated in turn. A final section gives a lively account of the organisation and activities of the various political parties.

The Federal Government is the author's main concern, and comparatively little space is given to provincial affairs or to dominion-provincial relations. English readers will therefore find that almost the whole book is of comparative interest. Respon- sible government in Canada has been developed out of the same conflicting interests as in England, within the framework of a legal constitution which is silent on the subject. Civil liberties also rest on a mainly tacit foundation-though not, in Professor Dawson's opinion, such a secure one as in England, owing to a relatively less vigorous hostility to encroachments. There is there- fore some feeling in favour of constitutional guarantees on the American model. The rule of law, as transplanted to Canada, is explained with the confidence and accuracy which the subject inspires so readily (and so properly) in all except, alas, constitu- tional lawyers.

Professor Dawson's readers will be grateful for his robust and agreeable style, and for the clarity with which he has arranged his material. His book will be especially useful to English students who wish to be able to refer to a simple and clear statement of the Canadian attitude to the many constitutional questions which both countries have to face.

H. R. W.

Criminal Procedure from Arrest to Appeal. By LESTER BERNHARDT ORFIELD, Professor of Law, Temple University. [New York University Press. London: Geoffrey Cumberlege. 1947. xxxi and 614 pp. 30s. net.]

THIS is one of a series of books on Judicial Administration. 'Each volume in the series aims to trace the history of its subject, to sketch the law as it now is and then to set up sound standards of practical reform for the guidance of the judicial councils of the several States and such other groups, official or private, as may interest themselves in the vital problems of the administration of justice' (Foreword, p. ix). The description of the law requires consideration of both State and federal provisions, with English law and practice for comparison. It is a practical book, aiming at producing a body of rules that ought to be generally acceptable in all jurisdictions. The English reader who is interested in the

constitutional and political machinery. He addresses himself to the general reader and, though much concerned with constitutional law, steers clear of strictly legal problems. Two sections are devoted to the general principles of the Federal Constitution. The Executive (Governor-General and Cabinet), Administration (Civil Service), Legislature and Judiciary are then each treated in turn. A final section gives a lively account of the organisation and activities of the various political parties.

The Federal Government is the author's main concern, and comparatively little space is given to provincial affairs or to dominion-provincial relations. English readers will therefore find that almost the whole book is of comparative interest. Respon- sible government in Canada has been developed out of the same conflicting interests as in England, within the framework of a legal constitution which is silent on the subject. Civil liberties also rest on a mainly tacit foundation-though not, in Professor Dawson's opinion, such a secure one as in England, owing to a relatively less vigorous hostility to encroachments. There is there- fore some feeling in favour of constitutional guarantees on the American model. The rule of law, as transplanted to Canada, is explained with the confidence and accuracy which the subject inspires so readily (and so properly) in all except, alas, constitu- tional lawyers.

Professor Dawson's readers will be grateful for his robust and agreeable style, and for the clarity with which he has arranged his material. His book will be especially useful to English students who wish to be able to refer to a simple and clear statement of the Canadian attitude to the many constitutional questions which both countries have to face.

H. R. W.

Criminal Procedure from Arrest to Appeal. By LESTER BERNHARDT ORFIELD, Professor of Law, Temple University. [New York University Press. London: Geoffrey Cumberlege. 1947. xxxi and 614 pp. 30s. net.]

THIS is one of a series of books on Judicial Administration. 'Each volume in the series aims to trace the history of its subject, to sketch the law as it now is and then to set up sound standards of practical reform for the guidance of the judicial councils of the several States and such other groups, official or private, as may interest themselves in the vital problems of the administration of justice' (Foreword, p. ix). The description of the law requires consideration of both State and federal provisions, with English law and practice for comparison. It is a practical book, aiming at producing a body of rules that ought to be generally acceptable in all jurisdictions. The English reader who is interested in the

No. 2: 1949] No. 2: 1949] 313 313

This content downloaded from 195.78.108.60 on Thu, 12 Jun 2014 11:01:10 AMAll use subject to JSTOR Terms and Conditions

The Cambridge Law Journal The Cambridge Law Journal

administration of criminal law in America will find this book

admirably clear and suitable for his needs. It may however be a somewhat dangerous book for an English lawyer, for it may fill him with conceit. What a fuss and bother there does seem to be: two or more days spent in challenges to the jury (p. 855), whilst in England challenges are so rare that many experienced practi- tioners have never known an instance. Look at p. 491 and see the recommendations of the American Bar Association as to conduct that should not be allowed during a trial, much of it conduct that would here be visited by stiff penalties for contempt of court. The reader must be strong-minded and regard com- placency as the real mark of the devil. The question is the same in both systems: Why are abuses tolerated? The Foreword to this book (by Arthur T. Vanderbilt) suggests that the. public attitude is responsible: criminal lawyers are rated lower than civil lawyers, judges of criminal courts are paid less than judges of civil courts, and law students regard criminal procedure as an inferior subject. He points out in contrast that in England the Lord Chief Justice spends part of his time in taking criminal trials and that leaders of the Bar are as much at home in criminal cases as in civil.

Ought we to teach criminal procedure in our law schools ? I think not as a separate subject. With us it forms part of the history of criminal administration, dovetailed into the substantive law and methods of treatment. The material is more in Parlia- mentary Papers than in law books. Professor Orfield is in a different position; it is comparative law for him, and with this authoritative textbook one can see the various rules of the different jurisdictions expounded with careful scholarship. Surely that is a study which cannot be neglected.

R. M. J.

Lawyers, Law Schools, and the Public Service. By ESTHER LUCILE BROWN. [New York: Russell Sage Foundation. 1948. 258 pp. (no index). $8.00.]

TEE theme of Miss Brown's book may well be summed up in a

quotation on pp. 108-109 from an article by Professors H. D. Lasswell and Myers S. McDougal of the Yale Law School (' Legal Education and Public Policy: Professional Training in the Public Interest' (1948) 52 Y.L.J., p. 206):-

'If legal education in the contemporary world is adequately to serve the needs of a free and productive commonwealth, it must be conscious, efficient, and systematic training for policy- makin '.

After two very interesting surveys of the 'Important Role played by Lawyers in Official Positions ' and the 'Nature of the work done

administration of criminal law in America will find this book

admirably clear and suitable for his needs. It may however be a somewhat dangerous book for an English lawyer, for it may fill him with conceit. What a fuss and bother there does seem to be: two or more days spent in challenges to the jury (p. 855), whilst in England challenges are so rare that many experienced practi- tioners have never known an instance. Look at p. 491 and see the recommendations of the American Bar Association as to conduct that should not be allowed during a trial, much of it conduct that would here be visited by stiff penalties for contempt of court. The reader must be strong-minded and regard com- placency as the real mark of the devil. The question is the same in both systems: Why are abuses tolerated? The Foreword to this book (by Arthur T. Vanderbilt) suggests that the. public attitude is responsible: criminal lawyers are rated lower than civil lawyers, judges of criminal courts are paid less than judges of civil courts, and law students regard criminal procedure as an inferior subject. He points out in contrast that in England the Lord Chief Justice spends part of his time in taking criminal trials and that leaders of the Bar are as much at home in criminal cases as in civil.

Ought we to teach criminal procedure in our law schools ? I think not as a separate subject. With us it forms part of the history of criminal administration, dovetailed into the substantive law and methods of treatment. The material is more in Parlia- mentary Papers than in law books. Professor Orfield is in a different position; it is comparative law for him, and with this authoritative textbook one can see the various rules of the different jurisdictions expounded with careful scholarship. Surely that is a study which cannot be neglected.

R. M. J.

Lawyers, Law Schools, and the Public Service. By ESTHER LUCILE BROWN. [New York: Russell Sage Foundation. 1948. 258 pp. (no index). $8.00.]

TEE theme of Miss Brown's book may well be summed up in a

quotation on pp. 108-109 from an article by Professors H. D. Lasswell and Myers S. McDougal of the Yale Law School (' Legal Education and Public Policy: Professional Training in the Public Interest' (1948) 52 Y.L.J., p. 206):-

'If legal education in the contemporary world is adequately to serve the needs of a free and productive commonwealth, it must be conscious, efficient, and systematic training for policy- makin '.

After two very interesting surveys of the 'Important Role played by Lawyers in Official Positions ' and the 'Nature of the work done

[VOL. 10 [VOL. 10 814 814

This content downloaded from 195.78.108.60 on Thu, 12 Jun 2014 11:01:10 AMAll use subject to JSTOR Terms and Conditions