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 A Practical Program of Procedural Reform

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which I am contending was argued fully and ably by Mr. Gilbert in his address before this association last year.‘n Stated summarily, his objec

Be this as it may, the example of the grant of this power to the federal Su preme Court which has stood unchal

tions are four: (1) That the evils to be

most skeptical. With respect to Mr. Gilbert's objections, it may be said, ﬁrst, that the present condition of American

cured are chieﬂy the result of judicial legislation and that the agency which has produced the condition to be cured ought not to be entrusted with ad ministration of the remedy; (2) that since in the past bench and bar have been hostile to new modes of procedure

and have prevented their beneﬁcial operation, it follows, to use his own language, that "to leave to them [the judges] too much discretion, would be

likely to result in the adoption of many rules more suited to their own conveni ence than to the convenience of litigants and to the prompt and proper transac tion of business”; (3) that to leave the details to be settled by rules of court would result in confusion and uncer tainty; and (4) that even if the judges had the ability and the disposition to enact good rules, they have not the

lenged since 1842, should convince the

procedure is by no means to be laid solely or even chieﬂy to the bench nor to bench and bar. Not only has ill

advised legislation contributed its fair share in more than one jurisdiction, but the most active causes have been deep-seated. An extended discussion of these causes here would be out of

place.

But at least six may be traced,

namely: (1) survival of conceptions and

rules originating in the archaic adminis tration of justice by the mechanical following of form; (2) the circumstance that the characteristic features of our

legal procedure became ﬁxed and its chief details were fully developed in the seventeenth and eighteenth centuries,

time. In addition to these objections, others have urged that the proposed

in what is for the modern world the period of formalism of over-reﬁnement in every department of human activity— and so,acquired a highly formal and

system is unconstitutional, as involving

artiﬁcial character;

a delegation of legislative power to the courts. The latter objection is obviously untenable. The power to make rules for practice in the courts has always

Puritanism in the formative periods of

belonged to the judiciary. Except so far as statutes have prescribed details,

that power still exists and is still exer cised. Mr. Justice Brown has argued that a great deal of our procedural

legislation, intended to tie the judges hand and foot, and to regulate their

every act from the time they enter the court room, is of doubtful validity as involving undue legislative encroach

ment upon the judicial department."l '7 The Administration of Justice in Illinois, Proc. Ill. Bar Ass’n, 1909, 328. z‘Judicial Independence, Rep. Am. Bar Ass'n. xii, 265.

(3) the inﬂuence of

our law, both in England and America,

whereby the Puritan jealousy of the magistrate took an extreme form as

jealousy of the judge, and hard and fast rules of procedure, absolute and un yielding rules of evidence, and strict review of the details of practice by a series of reviewing tribunals were deemed necessary to hold him in check; (4) the inﬂuence of the frontier and of the exaggerated importance of the advocate and the free rein accorded him in frontier communities; (5) the weakness of an

elective judiciary before encroachments by the bar and the sharp line between courts of ﬁrst instance and courts of review in

America,

whereby the