the press. Several years ago Charles E. Hughes in a public address
said that one reason why courts and lawyers were so unpopular in this
country was the unfamiliarity of the people with what they were doing.
Outside of criminal prosecutions, divorces, and large constitutional
cases, newspapers give very little attention to legal questions, and
even these cases are presented fragmentarily with almost no attempt
to present their historical background and the general principles
at issue. There is nothing to compare with the resumé of trials
and decisions which appears from day to day in the London _Times_,
no popular exposition of legal problems such as Woods Hutchinson
has done for medicine or numerous writers for the achievements of
Einstein. Surely law can be made as intelligible and interesting to
the ordinary educated reader as relativity. It enters so intimately
into human relationships that some knowledge of it is very important,
not as a guide in specific transactions as to which a lawyer ought
to be consulted, but as part of the mental stock-in-trade of the
well-informed citizen. Wider realization of the difficulties of the
work of judges and lawyers would bring about a friendlier and more
helpful popular attitude.
The public might understand, for example, why law does not progress
so conspicuously and rapidly as medicine or engineering. Part of the
blame rests, no doubt, upon lawyers, who have been less active than
other professions in discussing and applying new ideas, but the very
nature of the subject is an obstacle to quick change. In law, progress
requires group action; the individual can accomplish little. The
physician who discovers a new antitoxin, the surgeon who invents a new
method of operating for gastric ulcer, can always, if his reputation be
established, find some patient upon whom to test his conception. Its
excellence or its faults can be rapidly proved to his own mind and
that of any skilled onlooker. And new ideas, if sound, mean a larger
practice and money in his pocket. The lawyer gets no such rewards for
improving the law, and has no such opportunities for experiment. If
he is convinced by observation, wide reading, and long thinking, that
arrest for debt should be abolished, or the property of a spendthrift
protected by law from his creditors, or trial by jury abandoned
except in criminal trials, he cannot try out these theories upon some
client. He must sacrifice days from his regular work to persuade a
whole legislature to test his idea upon thousands of citizens, and if
the idea is a bad one, the experiment will be a widespread disaster.
Consequently law reform always faces an instinctive and discouraging
legislative opposition. Even after every State except two had adopted
the Uniform Negotiable Instruments Law, the Georgia legislature refused
to do so because the Act abolished days of grace, the old custom
allowing a debtor three days beyond the time of payment named in his
note. They said that when a man had promised to pay a debt on May 1,
it was un-American not to let him wait till May 4. Again, a committee
of very able New York lawyers recently drew a short Practice Act
setting forth the main requirements for the conduct of a law-suit, and
leaving the details to the judges, who may be supposed to know more
about their own work than the legislature. Similar laws have long been
in successful operation in England, Massachusetts, and Connecticut,
whereas the existing New York Code of Civil Procedure with its
thousands of sections has been a vexatious source of delay and disputes
in the press of urban litigation. The new measure was an admirable and
thorough piece of work, endorsed by the Bar Associations of New York
City and the State. Yet it was killed by the age-long opposition of the
country to the town. Upstate lawyers, less harassed by the old Code
because of uncrowded rural dockets, objected to throwing over their
knowledge of the existing system and spending time to learn a new and
better one. The legislature hated to give more power to the courts. As
a result, the new bill was scrapped, and nothing has been done after
years of agitation except to renumber the sections of the old Code with
a few improvements.
Another factor in law reform is the existence of fifty legal systems
in one nation. Even if the law is modernized in one State, the
objectionable old rule will remain in the other forty-seven until
their legislatures are persuaded by the same tedious process. On the
other hand, this diversity has its merits. Some of the progressive
Western States serve as experiment stations for testing new legal
and governmental schemes. Still more important, the limitations on
legal experimentation are somewhat offset by the opportunities for
observation of the workings of different legal rules in neighbouring
States. The possibilities of this comparative method for judging the
best solution of a legal problem have not yet been fully utilized. For
example, a dispute has long raged whether it is desirable to compel a
doctor to disclose professional secrets on the witness-stand without
the patient’s consent. About half the States require him to keep
silent. The reasons given are, that patients will seek medical aid
less freely if their confidences may be disclosed; doctors would lie
to shield their patients; some doctors are hired by employers to treat
workmen injured in accidents and will try to get evidence on behalf of
the employers if they are allowed to testify. So far, the discussion
has turned on the probability or improbability that these arguments
represent the facts, and neither side has collected the facts. The
discussion could be brought down to earth by an investigation in New
York which has the privilege, and Massachusetts, where secrecy is
not maintained. Are doctors less consulted in Massachusetts, do they
perjure themselves, do they ingratiate themselves with workmen to
defeat subsequent accident suits? Statistics, personal interviews with
judges and physicians, and examination of the stenographic records of
trials ought to give valuable assistance in determining which half of
the States has the better rule.
Since law reform requires highly organized group action, some
individual should be charged with the responsibility of organization.
At present, it is everybody’s business. Judges are hearing cases
all day and writing opinions at night, and they have no legislative
position as in England, where they can draft bills and present them in
the House of Lords. Individual lawyers carry little weight. The Bar
Associations have accomplished much, but the work of their members
is done without pay in the intervals of practice, and they have no
official standing. The Attorney General is necessarily a partisan,
representing the State’s side in litigation, with neither the time
nor the duty to improve the law in general. The United States and
the larger States badly need a Minister of Justice. All complaints
of legal inefficiency would come to him, and he would be constantly
collecting statistics of the cases in the courts and their social
consequences, observing procedure personally, or through a corps of
expert assistants, conferring with the judges and the Bar Associations,
drafting or examining measures affecting the administration of justice
and giving his opinion about them to the legislature, and charged
with the general duty of ascertaining whether every person can find
a certain remedy from the laws for all injuries or wrongs, obtaining
right and justice freely and without purchase, completely and without
denial, promptly and without delay.
Until we establish such an official, we can rely on three instruments
of legal advance, each of which may be a point of co-operation between
lawyers and laymen. Of the first, the Bar Associations, something has
already been said. The second is the judiciary. Unfortunately, the
tendency of the American antagonism to law to concentrate on personal
topics has warped the prolonged discussion of this branch of our
government during the last ten years, and, indeed, since 1789. Charges
of corruption and incompetency against individual judges, and methods
of getting a bad judge off the bench, have entirely obscured the
problem of getting good judges on the bench. The power of judges to
declare statutes unconstitutional and void makes them the controlling
factor in our government, yet there is no country where less attention
is paid to their selection and training. It is of no use to recall
a poor judge by popular vote if the people are eager to put one of
the same type in his place. Nothing need be added to the estimate in
Bryce’s “Modern Democracies” of the unevenness of judicial personnel.
The most obvious need, if the inferior judges are to be brought up to
the level of the best men, is for higher salaries. But that alone is
not enough to induce leaders of the bar to become judges. No salary
could be so high as the income of successful metropolitan lawyers.
The time has come for greater willingness on their part to retire from
a large practice in middle life and devote their talents to judicial
work. And even this will be useless, unless selection is based on
merit. Our system of an elective judiciary is probably too deeply
rooted to be entirely abandoned, though it is clear that legal talent
is not a quality, like executive ability, readily capable of being
appraised by the electorate. On the other hand, it is not altogether
certain that State governors would appoint judges without regard to
partisan considerations. An interesting compromise plan has been
suggested, that there should be a Chief Justice, elected by the people,
who should be in effect the Minister of Justice already described.
All the other judges would be appointed by him, for life or for long
terms, while his responsibility for wise selections would be secured
by a short term or even by the recall. A governor does so many tasks
that his judicial appointments do not play a large part in the popular
judgment of his record, but the Chief Justice would stand or fall on
the merits of the administration of law under his management.
Moreover, we do not deal fairly by the judges chosen under existing
systems. After they have been selected, they should have more
opportunity to study the special duties of their position before
beginning work, and more leisure amid trials and opinions for general
legal reading and for observation of the complexities of modern
life which are inevitably involved in their decisions, especially
on constitutional questions. Most litigation grows out of urban and
industrial conditions, with which State supreme court judges may easily
get out of touch, if they remain continuously in the State House in a
small upstate city like Springfield, Albany, or Sacramento, with little
opportunity to visit the factories and tenements of Chicago, New York,
and San Francisco. It may also be doubted whether our usual system
which restricts some judges to trials and others to appellate work is
wise; an occasional change from one to the other is both refreshing
and instructive. Judges frequently complain of the monotony of their
work, cooped up with a few associates of similar mental interests, so
that the atmosphere may acquire the irritability of a boarding-house.
It is not generally understood how much judges are cut off from other
men. Close intimacy with their former friends at the bar or with
wealthy business men who may have cases before them, is sure to cause
talk. Graham Wallas’s suggestion of an occasional transfer to active
work of a semi-judicial character, like Judge Sankey’s chairmanship of
the English Coal Commission, seems valuable. Our Interstate Commerce
Commission would provide such an opportunity. Finally, the existing
gulf between courts and law schools might be narrowed by summer
conferences on growing-points in the law, where each side could give
much out of its experience to the other.
The remaining instrument of progress is the law schools. “Legal
education,” says Bryce, “is probably nowhere so thorough as in the
United States.” The chief reasons for this success are two, the
professional law teacher, who has replaced the retired judge and the
practising lawyer who lectured in his spare hours; and the case-system
of instruction. This method is not, as is popularly believed, the
memorization by the students of the facts of innumerable cases.
It imparts legal principles, not on the say-so of a text-book or
a professor, but by study and discussion of the actual sources of
those principles, the decisions of the courts. The same method in the
Continental Law would result in a class-room discussion of codes and
commentators, which are there the sources. One of the most interesting
signs of its success is its spread from law into other sciences such as
medicine. Books based on the study of concrete situations are used in
public schools for the study of geography and hygiene, and charitable
societies work out the general needs of the community from the problems
of individual families. This system has superseded in all the leading
law schools the old methods of lecturing and reading treatises. Its
most conspicuous service is, of course, vocational, the training of
men whose advice a client can safely accept. Already some States
have required a law-school degree as a condition of admission to the
bar, and the old haphazard law-office apprenticeship will eventually
disappear, although the question of how far a man who is earning his
living should be allowed to study law in his spare hours at a night law
school whose standards must usually be lower than a full-time school
remains as a difficult problem in a democratic country. Efficiency
of training conflicts with equality of opportunity. A second service
of the leading law schools is the modernization of the law through
the production of books. A great example of this is the “Treatise on
Evidence,” by John H. Wigmore, dean of Northwestern Law School, which
is every day influencing courts and renovating the most antiquated
portion of the common law.
Of late years, the need for fresh changes in method has become plain.
Christopher Columbus Langdell, the inventor of the case-system, laid
down two fundamental propositions: “First, that law is a science;
second, that all the available materials of that science are contained
in printed books.” Experience has proved that he was right in believing
that attendance in a lawyer’s office or at the proceedings of courts
was not essential to a legal education. But the scope of legal study
must now extend beyond printed books, certainly beyond law books.
Since law is not an isolated department of knowledge, but a system
of rules for the regulation of human life, the truth of those rules
must be tested by many facts outside the past proceedings of courts
and legislatures. Not only law in books but law in action has to be
considered, and after learning the principles evolved by a process of
inclusion and exclusion in the decisions or by intermittent legislative
action, the scholar must find how those principles actually work in
the bank, the factory, the street, and the jail. The problem is still
debated, whether this can better be done in the pre-legal college
course or by the use of non-legal experts in the law schools, or
whether the necessary material should be assimilated and presented by
the law teachers themselves. Yet this widening of the content of legal
study does not in the least impair the validity of Langdell’s method,
the systematic investigation of the sources of law at first hand,
whether those sources be found in the reports and statutes which he had
in mind, or in the economic, social, and psychological facts which have
demanded attention in recent years.
Something must be said in closing of those portions of the law where
change has been most necessary. Of these our criminal law is easily
the most disgraceful. Its complete inability to perform its task has
been exhaustively demonstrated by the opening chapter of Raymond
Fosdick’s “American Police Systems.” The lawyers and judges are
only partly to blame, for their work forms only the middle of three
stages in the suppression of crime. The initial stage of arrest and
the final stage of punishment are in the hands of administrative
officials, beyond the control of the bench and bar. Many criminals
are never caught, and the loss of public confidence in the justice or
effectiveness of prisons makes juries reluctant to convict. Yet the
legal profession is sorely at fault for what takes place while the
prisoner is in the dock. The whole problem calls for that co-operation
between lawyers, other experts, and laymen, of which I have already
spoken. Unless something is soon done, we may find crime ceasing to be
a legal matter at all. Even now, many large department stores have so
little belief in the criminal courts and prisons that they are trying
embezzlers and shoplifters in tribunals of their own, and administering
a private system of probation and restitution. The initial step is a
reformulation of the purpose of punishment. Twenty-five years ago,
Justice Holmes asked, “What have we better than a blind guess to show
that the criminal law in its present form does more good than harm?”
One serious reason for its breakdown has been the creation of
innumerable minor offences, which are repeatedly committed and almost
impossible to suppress. The police are diverted from murders and
burglaries to gambling and sexual delinquencies, while the frequent
winking at such breaches of law destroys the essential popular
conviction that a law ought to be obeyed just because it is law. The
Chief of Police of New Orleans told Raymond Fosdick, “If I should
enforce the law against selling tobacco on Sunday, I would be run out
of office in twenty-four hours. But I am in constant danger of being
run out of office because I don’t enforce it.” So they were hanging
green curtains, which served the double purpose of advertising the
location of the stands and of protecting the virtue of the citizens
from visions of evil.
At the present time we have thrown a new strain on the criminal law by
the enactment of nation-wide prohibition. The future will show whether
the main effect of this measure will be an increase in disrespect and
antagonism for law, or the ultimate removal of one of the chief causes
of lawlessness and waste. Unfortunately, the perpetual discussion
of home-brew receipts and hidden sources of supply has prevented a
general realization that we are witnessing one of the most far-reaching
legislative experiments of all time. What we ought to be talking
about is the consequences of prohibition to health, poverty, crime,
earning-power, and general happiness. It is possible, for instance,
that total abstinence for the working classes coupled with apparently
unlimited supplies of liquor for their employers may have the double
consequence of increasing the resentful desire of the former to wrest
the control of wealth from those who are monopolizing a time-honoured
source of pleasure, and of weakening the ability of the heavy-drinking
sons of our captains of industry to stand up in the struggle against
the sober brains of the labour leaders of the future. Prohibition may
thus bring about a striking shift of economic power.
The delays, expense, and intricacies of legal procedure demand reform.
The possession of a legal right is worthless to a poor man if he cannot
afford to enforce it through the courts. The means of removing such
obstacles have been set forth by Reginald H. Smith in “Justice and
the Poor.” For instance, much has already been accomplished by Small
Claims Courts, where relief is given without lawyers in a very simple
manner. When a Cleveland landlady was sued by a boarder because she
had detained his trunk, she told the judge that he had set fire to
his mattress while smoking in bed and refused to pay her twenty-five
dollars for the damage. The judge, instead of calling expert witnesses
to prove the value of the mattress, telephoned the nearest department
store, found he could buy another for eight dollars, and the parties
agreed to settle on that basis. Again, family troubles are now
scattered through numerous courts. A father deserts, and the mother
goes to work. The neglected children get into the Juvenile Court.
She asks for a separation in the Probate Court. A grocer sues her
husband for food she has bought, before a jury. She prosecutes him
before a criminal court for non-support, and finally secures a divorce
in equity. One Court of Domestic Relations should handle all the
difficulties of the family, which ought to be considered together. Much
of the injustice to the poor has been lessened by legal aid societies,
which have not only conducted litigation for individuals but have also
fought test-cases up to the highest courts, and drafted statutes in
order to protect large groups of victims of injustice. The injury done
to the poor by antiquated legal machinery is receiving wide attention,
but it is also a tax on large business transactions which is ultimately
paid by the consumer. Reform is needed to secure justice to the rich.
The substantive law which determines the scope of rights and duties has
been more completely overhauled, and many great improvements have been
accomplished. Relations between the public and the great corporations
which furnish transportation and other essential services are no longer
left to the arbitrary decisions of corporate officers or the slow
process of isolated litigation. Public service commissions do not yet
operate perfectly, but any one who doubts their desirability should
read a contemporary Commission Report and then turn to the history of
the Erie Railroad under Jim Fiske and Jay Gould as related in “The Book
of Daniel Drew.” The old fellow-servant rule which threw the burden of
an industrial accident upon the victim has been changed by workmen’s
compensation acts which place the risk upon the employer. He pays for
the injured workman as for a broken machine and shifts the expense
to his customers as part of the costs of the business. The burden is
distributed through society and litigation is rapid and inexpensive.
Unfortunately, no such satisfactory solution has been reached in the
law of labour organizations, but its chaotic condition only corresponds
to the general American uncertainty on the proper treatment of such
organizations. It is possible that just as the King, in the Middle
Ages, insisted on dragging the Barons into his courts to fight out
their boundary disputes there, instead of with swords and battleaxes
on the highway, so society which is the victim of every great
industrial dispute will force employers and workmen alike to settle
their differences before a tribunal while production goes on. The
Australian Courts of Conciliation have lately been imitated in Kansas,
an experiment which will be watched with close interest.
Less importance must be attached, however, to the development of
particular branches of the law than to the change in legal attitude.
The difference between the old and the new is exemplified by two
extracts from judicial decisions which were almost contemporaneous.
Judge Werner, in holding the first New York Workmen’s Compensation Act
unconstitutional, limited the scope of law as follows:
“This quoted summary of the report of the commission to the
legislature, which clearly and fairly epitomizes what is more fully set
forth in the body of the report, is based upon a most voluminous array
of statistical tables, extracts from the works of philosophical writers
and the industrial laws of many countries, all of which are designed
to show that our own system of dealing with industrial accidents
is economically, morally, and legally unsound. Under our form of
government, however, courts must regard all economical, philosophical
and moral theories, attractive and desirable though they may be, as
subordinate to the primary question whether they can be moulded into
statutes without infringing upon the letter or spirit of our written
constitutions.... With these considerations in mind we turn to the
purely legal phases of the controversy.” (Ives _v._ South Buffalo Ry.
Co., 201 N. Y. 271, 287, 1911.)