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 The Green Bag

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may try on their ideas of legal improve nor is it fair to

way. But the objections to this course are serious. In the ﬁrst place it makes

judges to ask them thus to sacriﬁce the

progress one-sided. Advance takes place

ment retroactively,

interests of individual litigants in order

here and there, as it were by jerks, but

to do what ought to be accomplished

the general system is left as it was.

by rules laid down in advance of decision.

it happens not infrequently that defects

Reform by exercise of the power of courts to make rules is free from the latter diﬂiculty. But here again, in most jurisdictions and for most purposes,

are really in the system as a whole more than in the details. In that event, their place in the system and are molded

the detailed provisions of practice acts or codes stand in the way of eﬁective

thereto by construction until they fail of effect. A more serious objection is

improvement. Hence we may take it that legislation must be resorted to as

that such a succession of acts, when the

the direct and immediate agency of reform.

of enactment with all the characteristics

Assuming that legislation is imperative if not as the sole means, at least as a

us a complete scheme in all its details,

precursor of procedural reform, three methods are open: (1) A succession of

to be altered only by more legislation.

And

the detailed improvements have to take

work is complete, will give us a mass of a code.

In other words, it will give

laid down in advance by legislation, and

the general model of the codes of pro

Hence, all the arguments that may be urged against a code of procedure or a general practice act going into minute detail, apply with equal force, in the end, to such a succession of acts. On

cedure,

to

the other hand, the advantage of this

cover, all details at one stroke, (3) a short, simple practice act laying out the broad lines only, and, so far as possible

method,—and it must be conceded to be a real advantage,—namely, the

brief practice acts dealing with portions of the subject or with special details, (2) a complete general practice act, after covering,

or

attempting

dealing only with those matters that require legislative change or legislative authority for change, leaving the details to be settled, developed and improved

by general rules to be devised or adopted by the judges.

It cannot be denied that the ﬁrst of these methods has been pursued thus far in this state with no little success. Three notable reforms were brought about in the last practice act, namely, the power of transfer from

Appellate Court to Supreme Court and vice versa, the power of amendment from law to equity and vice versa, and the power of suit by an assignee in his own name. The limitation of double appeals in the certioran' act is another instance of what may be done in this

gradual introduction of changes as bench and bar are ready for them, may be achieved equally by leaving details to be worked out by rules of court. It would seem, therefore, that the choice must be between the second and

the third of the three methods named. And herein is the ﬁrst and most vital problem in devising a program of pro cedural reform. At the very outset,

every jurisdiction must choose between a brief, scientiﬁc outline of, say, one hundred sections, to be developed by" rules which may be enacted, revised,

amended, or abrogated by the judges, in the light of experience of their actual operation, or a detailed code of some two thousand sections, at least, amend

able only by means of further legislation, to be developed by judicial constructions