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REPORT

OF THE

COMMITTEE ON COMMERCE, TRADE AND COMMERCIAL

LAW.

To the American Bar Association:

The Committee on Commerce, Trade and Commercial Law reports as follows:

I.

SUMMARY OF RECOMMENDATIONS.

The following is a summary of the recommendations of the committee:

First. That a resolution be adopted declaring the American Bar Association, at least so far as concerns its recommendation as to legislation affecting American social and economic affairs, is a quasi-public association and that the proceedings of its committees in formulating laws affecting social and economic conditions and the administration thereof and of the legal standards therein set forth to be administered by courts and administrative bodies, should not be held in star chamber, but should be open to the public and public notice should be given of the subjects to be considered and full public hearings had thereon and reasoned reports of the committees thereon be submitted to the association for discussion and action thereon.

Second. That the Association adopt a resolution as a fundamental proposition that the law merchant should be brought into harmony with the actual usages, customs and practices of business, provided the same are (1) ethical and (2) desirable in the public interest.

Third. That the Association adopt a resolution that the statement of Elihu Root in his annual address in 1916 is fundamental as a guide in matters pertaining to legislation as to administrative bodies as follows:

There is one special field of law development which has manifestly become inevitable. We are entering upon the creation of a body of administrative law quite different in its machinery, its remedies, and its necessary safeguards from the old methods of regulation by specific statutes enforced by the courts. As any community passes from simple to complex conditions the only way in which government can deal with the increased burdens thrown upon it is by the delegation of power to be exercised in detail by subordinate agents, subject to the control of

general directions prescribed by superior authority. The necessities of our situation have already led to an extensive employment of that method. The Interstate Commerce Commission, the state public service commissions, the Federal Trade Commission, the powers of the Federal Reserve Board, the health departments of the states, and many other supervisory offices and agencies are familiar illustrations. Before these agencies the old doctrine prohibiting the delegation of legislative power has virtually retired from the field and given up the fight. There will be no withdrawal from these experiments. We shall go on; we shall expand them, whether we approve theoretically or not, because such agencies furnish protection to rights and obstacles to wrong doing which under our new social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation. Yet the powers that are committed to these regulating agencies, and which they must have to do their work, carry with them great and dangerous opportunities of oppression and wrong. If we are to continue a government of limited powers these agencies of regulation must themselves be regulated. The limits of their power over the citizen must be fixed and determined. The rights of the citizen against them must be made plain. A system of administrative law must be developed, and that with us is still in its infancy, crude and imperfect.

Fourth. That a resolution be adopted that acts of Congress which do not expressly so provide be amended so as to give a right to the public to intervene in proceedings before administrative bodies.

Fifth. That a resolution be adopted requesting administrative bodies:

(1) To give each member of the public a right to file a brief as amicus as fully as is the practice before the Supreme Court of the United States.

(2) That all administrative bodies proceed only on notice and full hearing and give a reasoned report on entering an order with adequate power to dispose expeditiously of matters requiring prompt action.

(3) That all administrative bodies cause to be promptly printed and published all reasoned reports on orders made by them and also all tentative reports of examiners to the end that the public may be promptly informed thereof.

(4) That members of administrative bodies in public addresses abstain from discussing problems before them or that are imminent to come before them in the immediate future.

(5) That no administrative body shall strike from its files exceptions or briefs without notice and opportunity to be heard in reference thereto.

Sixth. That the committee be given further time to submit a draft of an act to codify the Law of Common Carriers in Interstate and Foreign Commerce.

Seventh. That the Association receives so much of the report of the committee which submits a tentative draft of a Bill Relating to Sales and Contracts to Sell in Interstate and Foreign Com

merce and that a resolution be adopted that the committee give further consideration to the same in the light of criticisms and suggestions.

Eighth. That the Association receive so much of the report of the committee as pertains to a tentative draft of a Bill Relating to the Arbitration of Disputes in Interstate and Foreign Commerce and that a resolution be adopted that the committee give further consideration to the same in the light of criticisms and suggestions.

Ninth. That the Association at this time do not adopt a resolution indorsing Senate Bill No. 1012, 1st Session 67th Congress, pertaining to declaratory judgments in the federal courts but that action thereon be postponed until further light can be thrown thereon.

Tenth. That a resolution be adopted that the laws should be amended so as to provide a permanent chairman for each federal administrative body.

Eleventh. That a resolution be adopted to amend the federal statutes so as to provide adequate payment to members and examiners of all federal administrative bodies for traveling expenses and hotel bills when absent on official duties.

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Twelfth. That a resolution be adopted approving the bill submitted as to negotiability of documents of title under the Uniform State Sales Act and of warehouse receipts under the Uniform State Warehouse Receipts Act and the bill to amend Section 20 of the Uniform Warehouse Receipt Act.

Thirteenth. That a resolution be adopted giving the committee further time to consider the bill submitted by the committee as to a Uniform State Declaratory Judgment Act.

Fourteenth. That a resolution be adopted approving the bill submitted by the committee as to a Uniform State Arbitration Act.

Fifteenth. That a resolution be adopted approving the bill submitted by the committee to amend the National Bankruptcy Act.

Sixteenth. That a resolution be adopted to receive so much of the report as pertains to a bill to amend the Pomerene Bills of Lading Act in Interstate and Foreign Commerce and a resolution be adopted approving Sections 2, 2a, 3, 3a, 14, 19a, 22 and 29 thereof; that no resolution be adopted either approving or disapproving Sections 20a and 21 thereof as to "shippers weight, load and count," as there is a sharp conflict of views of railroads and shippers thereon and it is impolitic for the Association to adopt a resolution in reference to said two sections and the same should be left open for discussion in the Senate and House Committees on Interstate and Foreign Commerce.

Seventeenth. That a resolution be adopted reiterating the indorsement of bills affecting commercial bribery in interstate and foreign commerce as set forth in the report of the committee for the year 1919 and approving the principles embodied in Cooper House Bill No. 4086 as shippers and carriers, and Cummins' Senate Bill No. 540 as to commercial bribery generally as to interstate and foreign commerce.

Eighteenth. That the committee prepare and submit a “Merchandise Marks Act "" as to interstate and foreign commerce. Nineteenth. That a resolution be passed resubmitting to the committee the matters of the administration of the anti-trust laws and the Federal Trade Commission as set forth in its report of 1920 and the matter of declaratory orders and advisory opinions of administrative bodies.

Twentieth. That a resolution be adopted that the committee give further consideration to the subject of the uniformity of the law merchant in North and South America.

Twenty-first. That a resolution be adopted that the committee give further consideration to the subject of a general system of Federal Commercial Courts along the line of the English Commercial Courts.

Twenty-second.-That a resolution be adopted that the committee give further consideration to the matter of legal ethics as to counsel acting on behalf of trade associations and members thereof and persons not members of trade associations and report at the next meeting.

Twenty-third.-That a resolution be adopted that a federal statute be enacted making all records and documents on file with administrative bodies open to the public with a right to make copies when compatible with the public interest under rules and regulations to be adopted by such administrative bodies.

II.

PRELIMINARY.

It is the opinion of the committee that the American Bar Association, at least in so far as its recommendations for or against legislation and jurisdiction and practices of courts and administrative bodies as they may affect American social and economic affairs, is a quasi-public association and that the proceedings of its committees in formulating laws affecting social and economic conditions and the administration thereof and of the legal standards therein set forth to be administered by courts and administrative bodies should not be held in star chamber, but should be open to the public and public notice should be given of the subjects to be considered and full public hearings had

thereon and reasoned reports of the committees thereon be submitted to the Association for discussion and action thereon. The thoughts of the committee are well expressed by Hon. Edgar E. Clark, Chairman of the Interstate Commerce Commission, in a letter as follows:

EDGAR E. CLARK

CHAIRMAN

INTERSTATE COMMERCE COMMISSION

Mr. Francis B. James, 804 Westory Building, Washington, D. C.

DEAR MR. JAMES:

WASHINGTON, April 16, 1921.

I have your favor of the 13th instant enclosing invitation from the Committee on Commerce, Trade and Commercial Law of the American Bar Association to attend a public meeting at New York on May 2, 3 and 4, 1921, for consideration of the subjects listed in the notice of the meeting. I have brought this to the attention of my colleagues and it develops that it will not be possible for any of us to accept the invitation. Your thoughtfulness in inviting us is appreciated.

The subjects listed for consideration at this meeting are many of them important and of much interest, and it is a good thing to have such subjects discussed in open forum by representatives of those who are affected by existing law or who would be affected by changes in the law. I cordially reciprocate your good personal wishes, and am,

Yours very truly,

(Sgd) EDGAR E. CLARK,

Chairman.

Mr. Clark has always been eager for and welcomed constructive criticism. If every member of every administrative body should look at the subject with the big and broad vision of Mr. Clark, the public would have been inspired with confidence in our administrative bodies and would welcome rather than repel amendatory and supplementary legislation of our administrative law, which, as well stated by Mr. Root, is still in its infancy, crude and imperfect.

Acting on the thought heretofore expressed, the committee held an open public meeting to consider each and all of the subjects dwelled upon by the committee in this its report in the public reading room of the Merchants Association of New York, Woolworth Building, New York City, on May 2, 3 and 4, 1921. This courtesy was extended by Mr. James C. Lincoln, Traffic Executive, of that association. Invitations reaching 12,000 lawyers through the Journal of the American Bar Association and 2500 special invitations were sent out.

A transcript of the hearing covers 542 pages, and letters and documents will make approximately 500 pages.

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