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have been three complete revisions and numerous minor changes since that time.
In California it is customary to secure many legislative proposals by adopting them into the constitution. But even so it is not necessary that the legislature should be ousted entirely from the field of judicial procedure. The duty of making rules should ideally rest first upon the courts and finally be subject to the will of the legislature. Still there is reason for believing that the California plan will be an improvement on the present situation and free experiment should be welcomed.
To enunciate a principle is one thing and to give it successful application another. The rule-making power is not a simple and self-operating thing. It involves not only the establishment of rules for the direction of litigants, but also rules for the guidance and direction of judges, masters, clerks, attorneys and, in fact, all the agencies of justice.
Who Should Make Rules?
A first consideration of the subject often results in the assumption that all that need be done is to direct the supreme court of a state to make rules and then expect complete success. This assumption ignores many of the facts of the situation. In the first place, supreme courts are almost invariably overworked. In a number of states they are already considerably behind. Supreme court judges have not been trained in the exercise of supervisory powers except with respect to the essential juristic function. Some of the supreme court justices have never sat in trial courts. Some have had only limited experience with procedure because they have not participated largely in trial work.
And yet the rules are mainly concerning trials and preparation for trials. In part, they must regulate procedure in special branches and inferior courts concerning which the highest tribunal has little knowledge or interest. They must not only direct litigants, but must also guide and direct judges of all kinds, masters, clerks, attorneys and other agencies. In oper
ation then they are closely allied with the administrative function.
To leave rule-making solely to the supreme court is subject to one of the principal objections to the present legislative monopoly of rule-making, for it separates the power that makes the rule from the power which is responsible for its application and construction. It continues the wall which separates two functions which must be accomplished by co-ordination if substantial efficiency is to result.
Council as Rule-Making Authority
It will be seen that the successful execution of the rule-making power leads again to the need for administrative unification. A judicial system, in order to govern itself and its business properly, must first know itself and all its problems thoroughly. The making of rules should
be confined in the first instance to the judicial council representing the several parts of the judicial system of the state: The supreme court justices exist for a highly specialized form of work. The making of rules is not closely allied with the work of deciding appealed causes. The rules will not only be more practical if made by representatives of the various divisions of the court, but these divisions will more readily assimilate these rules and conform to them if they have part in their making.
Experience in other countries also points to the need for representation on the part of the bar in the rule-making body. This follows from the fact that the bar is vitally interested in many of the rules and it possesses members specially qualified to draft rules by long experience and study.
For these reasons the American Judicature Society's state-wide judicature act provides for vesting the rule-making power primarily in the judicial council, which is empowered to administer all divisions of the state judiciary and has disciplinary powers adequate to the work. This affords lawyers and litigants a place to file complaints concerning administrative
omissions and errors. It is presumed that the assistance of specially expert members of the bar will be invoked in developing rules of pleading and practice.
The Basis of Membership
The American Judicature Society is nothing else than a nation-wide study club for discovering a means for making justice speedier, cheaper, more practical and real. The Society must justify its aims and methods to the widest possible group of citizenship. This should be guaranty enough of its essential democracy.
The Society's work is concerned with no particular State, but with all of them. The few States which have nearly or quite solved the problem of efficient justice should not feel offended because of criticisms which do not apply to their special situations, but should, on the principle of noblesse oblige, contribute from their experience and advantages to the improvement of States less fortunate.
The Directors of the American Judicature Society know of no better present means for encouraging study widely than by submitting proposals based upon the widest information and drafted by those most competent to put these proposals into definite form.
The American Judicature Society has nothing to sell. Up to the present time it has furnished its publications free to several hundred persons who have assisted by offering criticism. Now that it enters upon a wider stage of work with a greatly enlarged membership, it appears necessary to make a small charge for its drafts; this is done merely to insure that they will reach only those who are genuinely interested. It has been decided to charge a uniform price of twenty-five cents for bulletins, not enough to defray the cost of printing, but enough to accomplish the larger purpose.
For the present at least, no charge will be made for membership in the Society or for this JOURNAL. The JOURNAL is made
small so that it will be easily read by busy men. It is proposed to publish it six or eight times a year. This will involve a cost, annually, on the large scale planned, of about twenty cents per member.
It will be seen, therefore, that any attempt to make the JOURNAL self-supporting would defeat its main purpose. would involve a greatly reduced membership and a much higher cost of production. The Society would be a select coterie of persons all thinking alike on these matters. This alternative is not acceptable to the directors, and hence the free membership and free circulation of the JOURNAL as the basis for a real democratic movement.
Recipients of the JOURNAL who object to this plan as paternalistic, and there will doubtless be such, can easily salve their consciences by contributing voluntarily to the support of the Society in any amount required to put their minds at ease.
A WAR TIME ANALOGY There are but two ways of settling controversies-by war or by adjudication. Settling disputes by war will now go out of fashion for the same reason that wager of battle became obsolete. The present world war is rapidly becoming a struggle for the adoption of law in place of force. It is pre-eminently a lawyers' war.
Before the war began there was a considerable body of international law. It had been growing rapidly to keep pace with the needs of civilization. But there was a fatal defect in the absence of machinery for the enforcement of the body of international law. Without administrative machinery, this law, adequate in most respects to determine all rights, was unable to adjudicate controversies and so prevent international anarchy.
There is an analogy in our national substantive law. It, too, has been growing with amazing swiftness in response to commercial and social needs. It has become more vast, more specialized, more detailed in each successive decade. But
the old machinery of justice, adapted to simpler conditions, has persisted, and it has failed in large measure to serve the needs of the vastly developed substantive law. We do not shed blood on this account, because we are one people, but we suffer from the administrative ineffectiveness of our archaic judicial machinery. We suffer from a sense of futility; we grumble over wasted time, money and energy. Where we are pinched hardest, we create special tribunals and commissions to further complicate the situation. It is much easier to patch than to do original work, much easier to complicate than to simplify.
The great war has become every month more universal, more astonishing, more indicative of the birth of a new era. The world is undergoing the pains of partu
rition and it will be no mouse that will be born. Nobody can safely set a limit to the change which will come.
This constitutes the apology for establishing a Journal of justice during war times. Now, if ever before the vast forces set in motion have completed their work, is needed the most thorough study and deliberation. Not all change is good change. Things don't come right through
The Matter of Bar Organization
Not least among the matters coming within the province of the American Judicature Society is the big question of bar organization, especially with respect to the part it plays in the administration of justice.
Until recent years the bar of the typical state has been inchoate. Now we are observing a growing class-consciousness
among lawyers, a disposition to realize the peculiar powers and obligations of the profession. A movement to integrate the profession is apparent in many quarters.
It is high time that there should be such a movement, because disintegrating influences of a most compelling nature have been at work. In commercial centers business has made inroads upon the profession, taking over its functions and buying up its members. The specialization growing out of commercial needs and the vast expansion of substantive law, have resulted in making the allegiance of many of the ablest lawyers stronger to the business world than to the profession.
The bar everywhere needs the support of its strong members. Bar associations are gaining members and functions, but only one lawyer in four is a member of his state bar association. Except in a few cities the local bar associations are alive in name only. The profession will never realize its full powers and accomplish its obligations until it is alive at the roots. Local bar associations must have something to do if they are to develop strength. Finally all associations must be linked together in a workable union with a democratic method of control.
Concerning features of the present highly interesting and rapidly developing situation, this JOURNAL will have considerable to say in future issues. Correspondence containing suggestions and news is cordially invited.
The Long and Short View
In every movement, legislative, social or commercial, there are to be found two temperaments which may, for convenience, be labeled the visionary and the practical. The former sees a distant goal and may be unwilling to tread the rough road that leads to it. A shortcut through the air appeals more to the visionary.
The extremely practical-minded persons, on the other hand, see so much in
the immediate foreground which demands smoothing that they have no time to lift their eyes to any distant goal. They are constantly engaged in road-making, but often with no complete plan. Just so they are at work blasting out rock and applying surface material they seem to care little whether their road leads directly to its destination or whether it winds back upon itself, making a mile where a few rods should suffice.
There is room for both types. There is indeed a necessity for both. But there is no good reason why they should be long at odds.
The simile of the road serves very well for all constructive efforts. But a road implies a goal and a route to that goal which involves as little as possible of cutting and filling, and will furnish eventually as short a route with as little grade as may be had.
The American Judicature Society has been from its inception of sufficient latitude to afford scope to both temperaments. All that is needed to be a member of this Society and co-operate in its work is acceptance of the premise that there is opportunity for improvement in the administration of justice.
Agreement on the precise route to be traveled is not necessary. In fact, this will depend upon local conditions quite as much as in roadbuilding. The variety of conditions is one cause for disagreement between the men of different States, which has contributed to our lack of a concerted program for so long.
There is no doubt we shall know when we have arrived. There will be a sufficient agreement to settle that question. Meanwhile, entire agreement is not necessary or to be expected.
The American Judicature Society has projected a long route. With eyes fixed upon the distant goal, men of every type and temperament can march from all their various positions toward a common ideal without quarreling unduly on the way.
There is need at the same time for plans far in advance, and for detailed sketches showing the place for immediate effort as the movement proceeds.
Among commercial lawyers and trade. associations there is a growing interest in commercial arbitration. In England practically every contract, every lease and every insurance policy contains a provision. for arbitration of controversies which may arise. Probably 100,000 disputes are arbitrated in London every year.
In this manner questions of fact are determined by experts in the various trades more satisfactorily than could possibly be done by juries. There is provided a tribunal expansible to any extent on short notice, thus relieving the courts of much business which they have proved unable to do so capably and promptly.
The best thing about arbitration is that it permits of continuing business relations, whereas court litigation usually disrupts such relations.
Recognizing the need for arbitration to permit American business interests to compete with those of European trade centers, the International High Commission, devoted to Pan-American relations, has established an arbitration bureau. Foreign business interests cannot wait upon our dilatory judicial procedure.
The Chicago Association of Credit Men have also recently established a Bureau of Arbitration, and through their initiative. have secured adoption of a new arbitration act by the Illinois Legislature. In furtherance of the plan the Municipal Court of Chicago has created an Arbitration Branch court to pass upon questions of law.
Mr. Samuel Rosenbaum's Report on Commercial Arbitration in England, Bulletin XII, A. J. S., should be in the hands of all commercial lawyers in the larger cities.
NEWS FROM THE FIELD
Periods of transition are marked by constitutional changes. The States have been undergoing such profound change in the past two or three decades that the rewriting of constitutions is likely to become fairly common in the next few years. Massachusetts, with the oldest constitution of all, dating from 1780, is now at work on a restatement of organic law. Its convention was called for the first Wednesday of June, 1917. The majority in favor of holding a convention was strikingly large, the vote having been 217,293 to 120,979.
The recent Indiana legislature has provided for a convention to assemble next January. Women will vote on candidates for the convention. This State has suffered seriously from the artificial difficulty of amending the constitution. Although the legislature has considerel two hundred separate attempts, only eight amendments have been adopted in the sixty-seven years since the last convention.
In the present call provision is made that upon the demand of forty-five of the one hundred and fifteen delegates any question which is to be submitted may be submitted separately to the voters. This provision is intended to prevent the disaster which attended the draft constitution submitted in New York in 1915.
New Hampshire voters approved of a call for a constitutional convention recently by a substantial majority. It will begin May 14, 1918.
Four States-New York, Colorado, South Dakota and Tennessee-declared against a constitutional convention in
1916. The question has been again submitted in Tennessee for a vote July 28, 1917. The vote last fall was close and is likely to be upset at the coming special election. There is considerable interest in judicial reform in this State. In June, 1914, the unified state court plan was submitted to the Tennessee State Bar Association by Col. Nathan William MacChesney.
Amendment of only one article of the Illinois constitution can be submitted by any Assembly, and the result in recent years has been that competing amendments have jammed the narrow passage. The greater the need for amendment, the less possible it became.
The 1917 Assembly has provided for submission of the convention question at the fall election of 1918. This seems like rather prolonged deliberation, but the time will not be wasted. The fact is that we are in the midst of developing thought concerning the structure of State government and a great present danger is that views may be permitted to crystallize before they have been long enough over the fire.
The common error of attempting to cover prospective administrative needs by inflexible constitutional provisions is well. illustrated by the result in Ohio of the judicial reorganization effected by an amendment of 1912. It increased the number of intermediate appellate courts in order to relieve the Supreme Court, but overshot the mark. In the spring of 1916 the Supreme Court had to take a recess while waiting for new business. The constitution would not permit the Supreme Court justices to reciprocate by helping out the judges of the intermediate court