Civilization in the United States: An inquiry by thirty Americans

by Unknown

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: