Page:The Green Bag (1889–1914), Volume 25.pdf/489

 One Code for all the United States the Only

Remedy

to Cure American Law of its Confusion and

Uncertainty

By Professor Charles P. Sherman DEPARTMENT OF LAW, YALE UNIVERSITY THAT English law country which today most needs a codified private law which shall be uniform from one border to another is the United States — and Great Britain is easily next. Why should 91,000,000 1 Americans longer endure the miserable confusion of 48 different varieties of state "com mon law," superimposed by that other variety known as "federal common law" — all of which (except in two states) 1 are but unwritten or customary law located in a tangled jungle of multi tudinous statutes, reports of decisions and digests of these? The uncertainty of our law, its confusion, its startling bulkiness, redundancy and prolixity, in creased annually by some 20,000 new statutes and thousands of new reported cases, make our law today the most intolerable in the world and perhaps the worst ever known to human history — all because its form and lack of uni formity are so objectionably bad. A German jurist who should come to this country to prosecute legal research in American law would be lost almost hopelessly in the maze of hundreds and thousands of unsystematized decisions without any possibility of systematizing or standardizing them himself, and could not discover one law for all the United States. As it is, American lawyers are finding it almost impossible to advise ■ Census of 1910: our population will soon be 100,000,000. 'Louisiana and California.

their clients competently — they per force resort too frequently to guessing at the law. No wonder our courts are clogged, and the justice of American law is often excessively delayed and is in danger of becoming a by-word to the civilized world. But there is a way out for our America just as there was for Rome, France, Germany and all the other non-English countries. The logical succession to mul titudinous precedents is codification. Rome was at one time almost as sorely harrassed as we are; then came the final codifi cation of her law by Justinian. What France and Germany did, we can do. And we have their modern codes to help us, whereas they had to go back across the centuries to Justinian's code for help. Objections against one and only one system of codified private law for the entire United States. — The arguments against the formation and inaugura tion of a Federal code of private law uniform throughout the United States which shall abrogate the private law of 48 states are broadly based on two grounds: that American law cannot be codified, and that a federal codified jurisprudence would damage, if not de stroy, the integrity of the several states. Objection I — Anglo-American law is essentially non-codifiable. This objection constituted for many years the citadel of the opponents of codification in Eng-