Page images


over in detail in preparation for submission to the Council. This often involves

efficiency if we, as a people, are fundamentally lacking in these qualities. Sucseveral successive drafts and months of·cess cannot be conferred. It must be

labor before the printing stage is reached. The drafts are put into the hands of the Council in the form of bulletins and criticism is invited. In due time these criticisms are published for the benefit of the directors and sometimes for circulation, also, among those who have submitted


A revision, then undertaken with changes based upon the criticisms received. Again the directors settle the form of the text and again the matter goes to press and is circulated.

The most important work has been the drafting of the model acts for establishing unified city courts and a unified state court system. The legislative form chosen for these drafts not only results in a practical piece of legislation of value to local draftsmen, but also possesses the great virtue of compelling a conciliation of ideas which clamor loudly for exclusive expression. All who have undertaken legislative drafting realize its compulsion toward clear thinking and precise expression.

Draft of Procedural Rules

These model acts are accompanied by a commentary. Other bulletins incidental to the main work have been issued from time to time. The work has taken longer than was expected, owing to the difficulty of commanding the time of the draftsmen. whose services seemed most necessary. At the present time the drafting of procedural rules adapted to the unified court acts is in progress. A tentative draft of about half of the rules is in print (Bulletin XIII) and the remainder will be offered as soon as possible.

It now appears inadvisable to longer defer general publicity and a broad invitation to membership.

The directors conceive of the purpose of the American Judicature Society as being in the main educational. No person and no group of persons can confer upon our government any qualities of

[ocr errors]


There can be no patented scheme for judicial salvation. All proposals for improvement must be founded upon fact. But until this time we have never possessed any organized means for establishing facts. To despair of success before a real effort, a concerted effort with means for co-operation, has been made, is unworthy.

Reform Is Readjustment

We are a new people. In most of the states conditions have been changing so constantly and so swiftly as to keep in advance of needed readjustment. And that is what reform essentially is-readjustment to altered facts.

Our governmental system possesses the great advantage of permitting local experiment. We are clearly entering upon a period of readjustment through experiment. Nothing can stay this movement. What is most needed then, is open-minded study of conditions and a chance for cooperation of both constructive and critical effort to the end that what is best shall survive and become a part of our institutions.

To say that the American Judicature Society is first of all and mainly an educational force is to express its catholicity of purpose and ideal of service. The Society invites the co-operation of all who are interested, but it offers no panacea. There is not now, and probably never will be, finality in respect to the proposals offered. Finality is less a present concern than service based upon the best experience obtainable. It is an evolutionary work which is undertaken.

No price is put upon membership. The Society now invites the assistance and cooperation of all persons, lawyers or laymen, in furtherance of improvement in the administration of justice in order that we may have a social and political system no part of which is unworthy our highest ideals.

Nearly all of the States have a system of courts which varies only in minor details. The system had its origin at a time when conditions were very different from those now prevailing. It was created to meet the needs of a small population scattered over a large area in villages and on farms. There was provided a local court for the trial of causes involving small amounts, a court of general trial jurisdiction sitting at the county seat at intervals of several months, and a central court of


This system was not only adequate for a long time, but it deserves to be said that there is no quarrel with it to day as a fundamental plan. We still need in every state numerous local courts quickly and easily invoked for a wide range of services; we still need in every county the court of general trial jurisdiction; there must be a centralized appellate tribunal.

What is most needed now is unification of all these scattered tribunals so that they will, in fact, as well as in theory, constitute together a single wieldy and responsible machine for administering justice.

In the earlier days the most conspicuous need was for a judicial machine which could develop a consistent and uniform American common law. Case law was exceedingly important for a people separated from their source of law and living under novel conditions. Emphasis naturally rested upon the essential judicial function of declaring the law.

This is still very important. Without detracting from its importance in the least we may yet insist that another factor has attained to great importance. This is the factor of administration, the conduct of the business of the courts as a whole.

Administration was well cared for in the pioneer days. There were comparatively few judges so that responsibility was fairly well fixed. There were not

nearly so many different kinds of causes and proceedings as now, not nearly so much opportunity for inadvertence, neglect, delays and all the confusion which attends complexity of functions.

A great change has come about even within the memory of persons not yet elderly. There are ten times as many judges as formerly. New courts have been spawned to meet the need for specialization. Each new court is an indeThere is

pendent administrative unit.

no arrangement for bringing judges together to consider problems common to officials of their several classes. While many judges are constantly overworked others have not enough business to keep them occupied.

Facts Most Needed

One of the worst features of the present situation is that we have no authoritative body of facts concerning the administrative side of the judicial function. On the essential juristic side our intense interest in case law has resulted in the most thorough system of reports ever known to any system of law. But with respect to the business of justice we have no statistical system. Ours is the only modern nation without data concerning the work of its courts. It would be difficult to exaggerate the extent of our loss in this respect. Precise criticism is impossible, but vague and sketchy accusations are encouraged. It prevents agreement as to the causes for alleged defects. It prevents a common understanding and acceptance among judges of their responsibility. It leaves us without data greatly needed for social, criminal and procedural legislation.

The need for unification of the numerous courts and judges of the typical state is expressed in a principle laid down by the American Bar Association's Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent De

lay and Unnecessary Cost in Litigation in its report in 1909, as follows:

"The whole judicial power of each state (at least for civil causes) should be vested in one great court, of which all tribunals should be branches, departments or divisions. The business, as well as the judicial administration of this court, should be thoroughly organized, so as to prevent not merely waste of judicial power, but all needless clerical work, duplication of papers and records, and the like, thus obviating expense to litigants and cost to the public."

This principle recognizes the vital importance of what may well be called the business management of the judicial machine. If the problem of creating a machine to meet the highly complex conditions of modern life were to be undertaken now, ab initio, without prejudice and without tradition, it is quite impossible that the present complicated and decentralized system could be conceived, much less adopted. It is a formless creation evolved over half a century of evolution thwarted by the rigidity of written constitutions.

The problem which we have inherited is more difficult even than that of creating an ideal system. We must take what we have, eliminate as far as possible its needless complexity and provide a structure favorable to the development of unused judicial power.

Depends on Team Work

The problem is partly one of organization and partly one of procedure. We make no progress by disputing the relative importance of personnel and procedure. It is undoubtedly true that exceptional judges can succeed with very faulty procedure. We need at all times to encourage the selection of judges specially qualified. But in many kinds of litigation no individual judge is responsible. We demand a standardized output and this implies not only expertness on the part of the judges, but also a system which co-ordinates their work so that judicial. time and energy will not be squandered.

There is a fair presumption that when all of the tribunals of a state constitute a single court, or a unified state system,

this political entity will take stock of the volume and character of work to be performed from year to year and will develop an organized method of doing this work according to the best standards and with the least expenditure of time and effort.

There is a fair presumption that this unified court system will develop the organs necessary to diversified functions; that it will work out the specialization needed to afford the best service in various fields of work and give scope to the varying talents of individual judges.

No such unified court would long tolerate the present absence of statistics. Facts above all else are necessary as a foundation for successful administration.

Better Organization Needed

Such unification would imply organization of a more thorough sort than we are used to in the department of justice. The need for a common sharing of duties and responsibilities would be recognized. The need for leadership and direction would become obvious. The entire machine would be integrated.

The historic division between local courts suited to the majority of rural and semi-rural counties, the courts of full trial jurisdiction, and the appellate tribunal will remain. These three fundamental divisions have such different functions that each will require its own organization. In each there is needed a presiding judge charged especially with administrative duties. In the large states. it will be convenient to provide districts for the nisi prius branch and a presiding judge of each district will be needed. The presiding judges of the several divisions and districts will naturally constitute together the governing board or judicial council, presided over by the chief justice of the state.

Concerning the more detailed organization of the three grand divisions of the unified state court there will be discussion from time to time in this JOURNAL. Bulletin VII-A, A. J. S., contains the

draft of an act to establish such a system and a constitutional article to permit of adoption of the act.

There is nothing revolutionary or destructive in these proposals. The organization is a simple one. The plan merely consolidates the various parts of the system as they exist in most of the states with the addition of means for the fulfillment of functions which have been long pressing for recognition.

Nor is the plan merely academic. It is a plan which has been at work for ten years in an American court situated in what is probably the most difficult environment in the country. In various other cities the essentials of this plan have been on trial long enough to prove them beyond all controversy. Instead of being merely theoretic, these ideas had their birth and growth under the most severe practical tests. In attempting to solve Chicago's court problems a business court and a business organization were created. There was no precedent in our legal his

tory; it was a lesson derived wholly from the business world. So far as lawyers and political scientists are concerned, analysis and theory followed in the wake of successful experiment. It was not hard to explain the success of the plan when one saw it in operation. Nor is it now at all difficult to apply the lessons learned in a number of successful organized city courts to the larger situation of the state.

Nor is there any hostility between the idea of the unified state court and the highly specialized court of the large city. The needs of large cities are sufficiently different from those of the average rural and semi-rural county to warrant a more highly developed structure, but this city court is readily adapted as a part of the unified state court. So far as the course of appeals is concerned the court of the large city will be on a par with the courts of other parts of the state; in respect to administration the metropolitan court needs a considerable measure of "home rule."

Wanted-A Chief Judicial


Lately much has been heard of "efficiency." It is a misused, or over-used, or misapplied word. But it has its proper applications. Judicial justice is one field for it.

We have also read much in the Bulletins of the American Judicature Society of

the need for a Chief Judicial Superin

tendent instead of a Chief Judicial Umpire-who shall inspect the judicial transactions so as to observe their failures and to direct improvements which may prevent the recurrence of failures.

At present five or six sets of persons are put to work by the law to do justice according to rules. But when something

'Reprinted by permission from Illinois Law Review for May, 1916.

Dean of Northwestern University School of Law.

goes wrong-badly and obviously-it is no particular person's power, duty or responsibility to take hold promptly, find out where the fault occurred, and endeavor to guard against repetition of such failures. There are lawyers on both sides, a trial judge, twelve trial jurors, witnesses, an appellate court, an attorney-general and state's attorney, a supreme court and legislators. Comes a botched result; a piece of justice is turned out that is palpably damaged goods; nobody can use it; time, labor, and materials were wasted. In an efficient commercial house this cannot happen often. Sooner or later in the system there is a superintendent, who finds out what is the source of such defective results, and takes measures (after various

experiments and inquiries, of course) to prevent such intolerable occurrences, which mar the repute and undermine the patronage of the house.

But in our justice system, what happens? Lawyers, trial judge, jury, appellate court, attorney-general, supreme court, legislators--has any one of them the power and the duty to inquire into. the botch and see that something is done to guard against repetition? No, not one of them. Each one has done his conscientious, industrious part somewhere along the line; but he had to stop when his own little part was done. Each lawyer pleaded, each witness testified, the jury voted, the trial judge ruled, the appellate court reversed, the supreme court reversed the appellate court, and possibly, somewhile back, the legislator had passed a statute. But when, in spite of the contributions of each one, the net result of the whole case is a botch, a palpable, unmistakable, useless, wasteful botch, and you or I take it up in the printed records and see this, and everybody can see it, and everybody realizes (parturiunt montes, nascitur ridiculus mus) that the product turned out by judicial justice is what the lumberman would call "culls," what happens?

[blocks in formation]

System Lacks a Head

It is nobody's power and duty to be Superintendent of Justice.

But it ought to be. And, if the reader's patience is not exhausted by finding the sermon put before the text, here is the text, a fresh instance, taken from our latest reports, to-wit, Pressley v. Bloomington & Normal Railway & Light Co., and it is last reported in 271 Ill. 322, 111 N. E. 511 (Feb. 16, 1916), thence going back through 193 App. 582 (May 26, 1915), 184 App. 113, 164 App. 167, and 158 App. 220.

For you must know that this bit of justice's culls goes back over eight years, and is not ended yet, either. The man was killed on October 26, 1907. There have been four trials in the circuit court, and the judgment has once more been reversed and the cause remanded for still another trial.

First, let us sum up the facts, and then let us give the chronology of this laborious but futile effort of justice.

History of the Case

Facts: (1) The B. & N. R. & Light Co. generated electricity for sale. (2) This electricity was sold to the U. Gas & Electric Co. and went out over a high-power street wire owned and controlled by the latter. (3) A telephone wire hanging in the street above the U. G. & E. wire fell on it and made a short circuit; the K. B. Telephone Co. was supposed to own the fallen wire, but turned out not to own it; whether the U. G. & E. wire was adequately insulated was an issue. (4) The city of Bloomington had street-lamp wires in the vicinity, and the telephone wire transmitted the high-power current to the lamp wire. (5) The time being daylight, when the city's current was shut off, a city employee, P., was trimming the city lamp, and was killed by the transmitted current. His administratrix brought suit for the death.

First trial (Pressley v. Kinlock-Bloomington Telephone Co., 158 Ill. App. 220). The administratrix sued the Telephone Company, the B. & N. R. & Light Co., and the B. & N. R. Electric & Heating Co. Verdict for $10,000. After verdict, suit dismissed as to the Electric & Heating Co., and judgment for $7,000 (remittitur of $3,000) entered against the other two defendants. Reversed by the Appellate Court, Third District, on two grounds: (1) The defendant was not allowed to contradict the plaintiff's evidence as to the proper and approved method of guarding high-tension wires from falling upper wires; (2) The plaintiff's given instructions as to the extent of responsibility of

« EelmineJätka »