Page:The Green Bag (1889–1914), Volume 22.pdf/467

 A Practical Program of Procedural Reform administration of justice without law.

But forms and mles will always operate more or less mechanically, and in con sequence will always give rise to dis satisfaction with the justice administered

thereby.

Because

of

this

inherent

difficulty in all judicial administration, we must look for the chief beneﬁts of procedural reform, not so much toward obviating popular discontent

441

there are usually practice acts expressly providing, or at least clearly assuming, things of which any effective reform

must rid us. matters,

it

With respect to these is obvious

that

judicial

decision is powerless. Yet we must not overlook the achievements of Judge Doe in New Hampshire. With only an ordinary statute of jeofails and amend ments to work upon, perceiving what

with the workings of the courts, although

judges in code states, with the aid of

such discontent may be diminished to no small extent, as toward relieving

better legislative provisions, had not

our overworked courts of about twenty

perceived, that forms of action and distinction between legal and equitable proceedings were formal, not substantial,

ﬁve per cent. of the points now sub mitted to them—points which have no real connection with the substantive rights of the parties litigant,——-and toward enabling lawyers to study and

or vice versa,“ and to allow mandamus,

present their cases on the substantive

or relief in the nature thereof, when

law more thoroughly and intelligently, so as to assist the courts more effectively, and thus assure greater certainty and precision of application of the rules on

the case made showed it proper, although

which rights depend." Premising so much, I purpose to

example of legislation in other jurisdic

consider (1) the best means of achieving procedural reform in an American state

he did not hesitate to allow the form of action to be changed by amendment,"

to allow amendment from law to equity

a wholly different remedy had been applied for.“ For these beneﬁcent strokes of judicial audacity, he had the tions. But he went beyond this and settled judicially, without waiting for

today, (2) the leading principles upon

legislation, that where error at a trial requires a reversal of a judgment, the

which such a reform should proceed and the chief improvements which it should attempt to achieve.

prior proceedings shall be saved so far as and wherever possible, and a new trial had only of the matter affected directly

There are three agencies through which reform of procedure may be brought about conceivably. These are

by the error, if the latter is separable.“

(1) judicial decision, (2) rules of court,

A Mansﬁeld or a Doe, however, is not to be found on every bench, and in the hands of any less than they were, the

and (3) legislation.

Perhaps at the

power to make such decisions would be

present time the scope of the ﬁrst agency is so restricted by legislation as to make

to judicial improvement of the law is

it impracticable for the attainment of any large results. Where there are

spectively.

not codes, going into minute detail,

to turn the courts into experiment

dangerous. that

For

judicial

the

changes

great

obstacle

operate retro

It is not fair to litigants

stations in which judicial reformers l‘About 35§per cent. of the points decided by our highest courts each year are points of practice. If that burden may be lessened. the beneﬁt to courts, lawyers. and the law needs not be argued. I submit that reduction from thirty-ﬁve per cent. to ten per cent. is perfectly feasible. and would be no small relief to our courts.

"See Henning's Life of Doe; in Lewis, Great American Lawyers. vol. viii, . 239, 254. “ .lfetcalf v. Gilmore, 59 N. . 433. "Boody v. Watson, 64 N. H., 172; Atty-General v. Tagiart, 66 N. H., 369. 10 L son v. Lyman, 49 N. H., 582.