Page:The Green Bag (1889–1914), Volume 22.pdf/473

 A Practical Program of Procedural Reform in detail in advance, no matter how wise and learned the lawyer who frames them. As to the fourth and last objection, namely, that our judges have not the time to make rules of practice, one might give Diogenes’ answer. The Supreme

447

adopted in the English Judicature Act of l873,—to put the permanent and unalterable provisions in the form of sections and append a schedule of rules

of practice to serve as rules of court until set aside, amended or added to by the

Court of the United States is a hard

Supreme Court.

worked court, and yet it found time

well be entirely proper.

between March 4 and June 1, 1909. to promulgate the Copyright Rules, and

intended to serve such temporary pur pose are inserted in the body of the act

between July 1, 1898, and November 21, 1898, to promulgate thirty-eight General

Orders in Bankruptcy, accompanied by a schedule of sixty-three forms. Cer tainly the pressure of business before legislatures is quite as great as that

before courts.

Moreover, it is not

necessary that the judges actually draw up the rules themselves, any more than that legislators themselves actually draw up every detail of a code

or practice act. For example, bar association committees may devise pro posed rules for submission to the court as easily as proposed statutes for submission to the legislature. It has been suggested, and

Mr.

Such a course may But if the rules

with nothing to distinguish them out

wardly from those intended to be per manent, or if the whole act, and every section thereof, is to be made subject to the judicial power, one may well hesitate.

Whether practice legislation takes the form of a detailed code or of a legislative outline leaving details to be developed by rules of court, only second in im portance is the question how such legislation shall be drafted. Here again three

agencies

are

conceivable:

(l)

a single draftsman, (2) a public com mission,

(3) a private committee or

commission. In Europe, a public com mission would be a matter of course. Even in individualist England, a series

Gilbert's Act in Relation to Courts now

of royal commissions framed the judi

contains such a provision, that there should be a complete set of detailed

cature Act. But American experience with legislative commissions has not been satisfactory, and executive com missions appear to have no place in our

rules in the ﬁrst instance, in order that the new practice may start full-ﬂedged, with power in the court to amend, abrogate or develop the several details by general rules. If we are to have an elaborate-made code, this is un

polity.

On the other hand, the Com

missioners

on

Uniform

State

Laws,

a purely private organization, originating in connection with the American Bar

doubtedly a wise feature. It would obviate much of the diﬂiculty that has

Association, have, on the whole, given us a model of conservative but thorough

attended the administration of the New York Code. But if such a plan is adopted the scope of judicial power of abroga ition and amendment should be made very plain, designating clearly those things which are to stand beyond the reach of the judicial rule-making power and those which are to be subject thereto.

going code-making. We have an ex ample also in the revised Code of Civil

Probably the best device would be that

"See judge Allen's account. 21 Green Bag, 266.

Procedure

of

Kansas,

drawn

by

a

committee appointed by the State Bar Association, submitted to the bar and examined and approved by the Bar

Association, and adopted by the legis lature.n

No

public

commission,

in