53 Mich. L. Rev. 945 (1954-1955)
Suits against Unincorporated Associations under the Federal Rules of Civil Procedure

handle is hein.journals/mlr53 and id is 959 raw text is: 1955]   Surrs AGAINST UNMCORPORATED AssooloNs       94

John K aplan*
CONCEPTs, Benjamin Cardozo has said, are useful, indeed indis-
%    pensable, if kept within their place. We will press them quite
a distance.... A time comes, however, when the concepts carry us too
far, or farther than we are ready to go with them, and behold, some
other concept, with capacity to serve our needs is waiting at the gate.
'It is a peculiar virtue of our system of law that the process of inclusion
and exclusion, so often employed in developing a rule, is not allowed
to end with its enunciation, and that an expression in an opinion yields
later to the impact of facts unforeseen.' -'
If Justice Cardozo was here setting forth more than a description of
how the philosophical or logical method' ideally should reach its
conclusions, he was guilty of overoptimism. That the law has not yet
escaped the tyranny of concepts is nowhere more clear than in its
treatment of the unincorporated association. On the one hand the un-
incorporated association can be conceived of as an entity, a legal unit
as distinct from the members who make it up as a corporation is from
its stockholders. On the other hand the association can be regarded
as a mere aggregate, a group of individuals similar to a family or a
crowd and having no independent legal existence. For years the entity
and the aggregate concepts struggled for supremacy while many ques-
tions of policy depended upon the outcome. Judges too often neglected
to weigh the practical consequences of a decision, and instead deduced
the outcome from their resolution of the philosophic controversy.,
Despite this, a long process of judicial evolution had determined
for the most part where each concept applied and had given us a rel-
atively definite, though arbitrary and inconsistent treatment of the
unincorporated association. In recent years, however, the class action
concept, brought into prominence by rule 23(a) of the Federal Rules
of Civil Procedure and applied mechanically, without analysis or con-
* Member, District of Columbia and New York Bars.-Ed.
1CA nozo, Thm PAP.ADoxns or LGAL ScmiNcn 62, 63 (1928), quoting Brandeis, J.,
dissenting in Jaybird Mining Co. v. Weir, 271 U.S. 609 at 619, 46 S.Ct. 592 (1926).
2 CAamozo, NAruimu o T  JunicIAL PRocEss 43 (1921).
s Hanley v. American Ry. Express Co., 244 Mass. 248, 138 N.E. 323 (1923). The
court there held that an automobile registered in the name of a labor union became an
outlaw on the highways when there was a change in the membership of the union on
the theory that the ownership of the car had changed thus voiding its registration.
4 Ck~nio, Som PoBnLEms or Egurrr 199 (1950).


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