Henry Friendly on “Air Law,” 1964

From the January 1964 issue of the Harvard Law Review, a review by Judge Henry Friendly of a new book on legal issues raised by aviation, titled “Air Law,” by NYU Law Professor DeForest Billyou:

A reviewer of this book must begin by asking what purpose it was intended to serve. Since some two-thirds of its pages are judicial opinions, one at first supposes it to be “Cases and Materials” designed primarily for use in a law school course. But Professor Billyou does not say this is his object; in his short preface he compares his book with unnamed and outdated “volumes on air law” which the cognoscenti will readily identify as treatises. His purpose, he tells us, is to reveal the “challenging problems” of air law “on the frontier where law, politics, economics and accounting meet” and “the immense effect this ever-evolving transport medium has had upon, and the important issues it is raising with, traditional legal concepts” in many areas (p. v). “If James Watt made more law than Lord Coke,” says the author in a moment of unwarranted exhilaration, “then the Wright Brothers outdid James Watt” (p. v); it is hardly convincing proof of this to find the cases on air law referring to such old friends as Gibbons v. Ogden, MacPherson v. Buick Motor Co., Erie R.R. v. Tompkins, and scores of others that scarcely owe their existence to Kitty Hawk. One concludes that the author’s intention was to compile something that would serve both the classroom and the library.

The frequent references in the opinions to old standbys like those just mentioned sharply raise the issue whether there is any such animal as “air law.” Gray laid it down as an a priori truth “that the Law with regard to a natural force cannot exist before the discovery of the force,” a dogma which he reinforced with the witty query, “What was the Law in the time of Richard Coeur de Lion on the liability of a telegraph company . . . ?” Leaving that question to be answered by experts in twelfth-century legal history, I would assert that by the beginning of the twentieth the law of carriers, of torts, and of property had so developed that the airplane no more entered a legal vacuum than it could have flown in a physical one, and that, in the main, “air law” is simply the application of general legal principles and skills to a new industry made possible by technological advance – the equivalent for lawyers of our century of what the railroad, the telephone, and the telegraph demanded of our nineteenth-century forebears.

What is important, however, is not this kind of ontological debate but the pragmatic problem whether it is useful to have a book like Professor Billyou’s. Insofar as the book may have been intended to make possible a law school course on “air law,” I would answer with a resounding no.

The author footnote: “Judge, United States Court of Appeals for the Second Circuit. Judge Friendly was concerned with ‘air law’ problems as a practicing lawyer from 1929 to 1959.” Ouch.