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Background for Dissensions COPYING V BIG UX FORMS fji/wi.- No L I N E -B Y -L I N E COPYHOLDER Your office get choked up with a deluge of copying at tax tim e? Error-N o helps your p m T1 « » t y p i s t w h i s k th ro u g h lis ts , re- — ports and forms in record time, elim i­nates errors, per­mits your office to handle more work accurately, faster ond at lower cost. A SIZE TO FIT ALL COPY WIDTHS UP TO 36 INCHES ADDRESS; 50 MT. HOPE AVENUE 3mm Background for Dissensions (Continued from page 1095) moral, or unmoral, or immoral at­mosphere of the day. And here was fertile soil for the 4mmm Public Utility Property (Con tin tied from page 1090) in Smyth v. Ames; so, there was no contest on that subject. But Justices Black, Douglas and Murphy raised I he issue in a concurring opinion that attacked not only the Smyth v. Ames rule, but also the doctrine of judicial review of the reasonableness of rates and the eminent domain rule. This case represented the whirl­wind that heralded the approaching storm that broke with all its fury in 1944. Space will not permit quotations from the dissenting opinions and special concurrences cited in this article. Some of them are very in­teresting, not alone for their merit, but also for their vigor, virility and forthrightness. At the date of the decision in the Natural fins Pipeline Company case, it is fair to assert that the following flowering—if flower be the word— of American pragmatism. T h e test of truth was to be found in conse­quences, in workability. Th e accep­tance of this point of view in the light of skepticism meant three things with respect to the Supreme Court. First, as to pragmatic justices, the absence of any common standard for choosing and evaluating’ facts. Second, an absence of any agreement, so far as such agreement might flow from processes of formal logic, to the extent that such logic was to be dis­regarded or discarded. Third, uncer­tainty and unpredictability in the law. Th e pragmatists would be most likely to disagree as to whether a given principle or rule had worked in the past and .thus proved its ‘‘truth” by its workability. As to the future, one man’s idea as to whether the rule would “ work” or the principle prove "true” by its fruits, was likely to differ from an­other’s. Both would be gazing into a crystal and trying to predict the future. Pragmatism meant prophecy. But that, you say, is no more than the legislator does. Maybe so, but here we come to the deepest root rules and prescriptions had been laid down by the Court since 1890, affect­ing public utility law and procedure: 1. Constitutional right of judicial re­view of reasonableness of rates. 2. Applicability of eminent domain rule as to just compensation, in form of rates, to which a public utility is entitled. 3. Valuation requirements as pre- I scribed by the decision in Smyth I v. Ames. W hile the foregoing rules were many times in effect partially ignored, evaded or equivocally treated by the Court, it does not appear o f record, up to 1942, that the Court ever forth­rightly repudiated any of the princi­ples laid down in those rules. Th at much of these judicially erected standards had begun to sick­en and, in effect, die in spots, the decisions of the Court clearly re­vealed. It was a case of the shadow of the matter. And that is that nei­ther skeptical relativism nor prag­matism gives any common answer to the question: What is it all about? Agreement that the test of truth is efficiency, “ workableness", leaves wholly unanswered the primal ques­tion: Work toward what? Accomplish what? Produce what end? I f the pragmatists do not agree upon ends, then they will not agree upon means. I f the pragmatists happen to be justices of the Supreme Court of the United States or of any other court, they will not agree upon the prin­ciples and rules they believe should govern society. T o expect any large measure of agreement among such is to expect the impnssible.1- [ Co p y r ig h t 1948 by B en W . P a l ­m e r ] ft . 12. The skeptical relativism or pragmatism of Holmes is too well known to need elucidation. For significant quotation by Frankfurter of San­tayana, see 29 Harv. L. Rev. 683, 699 (19)6). P. A. Sorokin, The Crisis of O u r A g e (N ew York, 1946), pages 96, 116. See Walter B. Kennedy in 1 My Philosophy of Law, and in 9 M arq. L. Rev. 63 (1925); 5 Ford L. Rev. 272 (1936); 7 Id. 203 (1938); 8 Id. 45 (1939); 29 Georgetown l . Jour. 139 (1940); Paul L. G regg, S. J., 31 Id. 262 (1943); Francis E. Lucey, 30 Id. 493 (1942); 9 Ford L. Rev. 362 (1940). O n realists, see references in E. W . Garlan, Legal Realism a n d Justice (1940), page 135. remaining after considerably of the substance had been swept away. Many regulatory bodies had paid only formal lip service to these standards; arid- the Court had per­mitted them “ to get away with it” , albeit such decisions were usually by a divided Court. W e have seen that a strong minority of the Court was unalterably opposed to these stand­ards and vigorously dissented when they were strictly enforced. Th e situation was one of irrepressible and constant conflict and disagreement. I his was the state of the judicial atmosphere surrounding the Supreme Court at the beginning of its 1943 term. Th e storm that had been brewing over the years came to fruition in Federal Power Commission v. Hope Natural Gas Company, 320 U.S. 591, 1154 American Bar Association Journal