Books Received

Prize Cases Decided in the United States Supreme Court. Prepared under the Supervision of James Scott Brown. Oxford University Press, American Branch, New York City. 1923. Three Volumes. pp. xc, 2183.

Handbook of Common-Law Pleading. By Benjamin J. Shipman. Third Edition, by Henry Winthrop Ballantine. Hornbook Series. West Publishing Co., St. Paul, Minn.

1923. pp. xvii, 644. Jurisdiction and Procedure of the Federal Courts. By John C. Rose. Matthew Bender & Co., Albany, N. Y. 1922. pp. ix, 790. Handbook of Equity Jurisprudence. By James W. Eaton. Second Edition, by Archibald H. Throckmorton. Hornbook Series. West Publishing Co., St. Paul, Minn. 1923. pp. xv, 711. Illustrative Cases on Equity Jurisprudence. By Archibald H. Throckmorton. Hornbook Case Series. Second Edition. West Publishing Co., St. Paul, Minn. 1923. pp. x, 611.

Outline of the History of English and American Law. By William F. Walsh. The New York University Press, New York City. 1923. pp. xiv, 533.

Outlines for Review of the Fundamental Principles of the Law. By William Lawrence Clark. American Law Book Co., New York City, 1923. pp. xcii, 364.

Recent Changes in American Constitutional Theory. By John W. Burgess, Columbia University Press, New York City. 1923. pp. xi, 115.

The Official Reports contain the only correct and authentic decisions of the Courts. Rule 235 of the Rules of Civil Practice requires citations from these Official Reports.

Abbott's Digest is the only complete Digest System covering all the decisions of all the Courts of New York, from the beginning in 1794 to 1922.

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The Cornell Law Quarterly

VOLUME IX

APRIL, 1924

NUMBER 3

The Relation of the Practicing Lawyer to the Efficient Administration

of Justice*

CUTHBERT W. POUND†

"The Lawyer *** should strive at all times *** to improve not only the law but the administration of Justice."

"There is to-day general dissatisfaction with the administration of justice." Thus begins the report of Senator Root's Committee on the creation of the American Law Institute. General indifference might be a more accurate characterization, for great and general dissatisfaction would not long tolerate the ills that the report suggests. Much is said about the defects in the administration of justice, but little is done systematically to remedy the defects. Evolution, not revolution, has been the method of law reform. Society is inclined to leave the law to the lawyers and to bear its defects with equanimity so long as its fingers are not pinched. When it was proposed to revise the Judiciary Article of the New York Constitution by a convention of judges and lawyers, the bar as a whole took little note of its proceedings, the press ignored it, and with some notable exceptions, the judiciary viewed it with true judicial calm. When its report reached the legislature, its recommendations failed of final passage because those who opposed them were active, while those who might have favored them seemed oblivious of their existence. The general indifference of the bar and the public towards a measure of such far reaching consequence was indeed appalling.

Much of the bad opinion of the law comes, too, from those who are temperamentally affected when they see the halter draw. But an honest desire is manifest to meet a patent necessity to keep the law

*Address delivered before the Association of the Bar of the City of New York, January 24, 1924.

†Associate Judge, New York Court of Appeals.

iCanons of Legal Ethics, No. 29.

235

abreast with the progress of mankind and not, as Judge Cardozo says in his address before the Association of the Bar of the City of New York on "A Ministry of Justice," to leave "to fitful chance the things that method and system and science should order and adjust."

No one more than the practicing lawyer can effectively aid in the efficient administration of justice, if he turns his experience and his talents to that end with a good heart. The failure of the active bar to take the lead in constructive improvement is largely due to the fact that an enlightened self-interest does not dictate such a course. We belong to one of the most conservative professions in the world and the judiciary is perhaps the most conservative branch of our profession. In the first instance, we habitually look back to authority rather than forward to new and improved methods. The inventor gives us manifold time and labor saving devices, which are utilized in trade, manufacture and transportation; the medical man studies to improve the art of healing, and is rewarded with fame and money when he introduces a better operation or a more effective preventive or cure of disease; even the theologians divide between fundamentalism and modernism, and modernists are permitted to offer ways to salvation both broad and low. But the practicing lawyer must rely largely on old rules and old methods. He cannot invent a new plan of ascertaining liability and ask the courts to adopt it in his He must walk in the ancient ways until the legislature changes the rule of substantive law or the rules of practice. The courts may do something, but they cannot do much to modify the rule of stare decisis. The lawyer upon whose briefs and arguments depend the investigation of every legal question in the courts, often contents himself, as indeed to a great extent he must, with traditional formulas, and often professes a contempt for those who suggest that more scientific theories may merit consideration. He sometimes hesitates in the preparation of his brief between conciseness and directness on the one hand and prolixity and vagueness on the other. He likes to have his talk out; he does not always yield to the suggestion that he is arguing on details which no judicial mind can follow until the briefs are carefully read and studied.

case.

Goethe, expressing the cultured layman's opinion of such a way of doing things, says in "Faust":

"Of statutes and of law, an end comes never;

They last as long as deadly illness' pain.

They drag themselves along from one age to another,

From place to place they slowly move again.

"Reason to nonsense, good to evil changes,
Alas for you that you have lived so late!
While justice, gift at birth of every mortal,

Unfortunately, is always shut outside the gate."2

Defects in the law and its administration exist, and will continue to exist until some exterior power establishes a perfect code and places its administration in the hands of perfect ministers. As Senator Root said: "The great work of the Roman Law had imperial power behind it; Theodosius and Justinian could command and all the resources of a great empire responded. In the simpler and narrower work of the Code Napoleon, again, imperial will put motive power behind the enterprise." Until unhappily our liberties perish before some Caesar or Napoleon who may deal with the subject with a strong hand, democracy will stumble along with unsystematic laws imperfectly administered, but the effort for improvement is constant. The Law Institute aims to rewrite the law deliberately and with precision. Its methods are slow and patient and its results will be advisory, not authoritative. With an optimism which aims to produce more speedy results, New York State has created a commission3 "to examine the statutes and judicial decisions of the state of New York; to investigate any defects it may find in the present law and in its administration; and to recommend such changes as are necessary, to modify or eliminate antiquated and inequitable rules of law and methods of administration, to remove anachronisms in the law, and generally to bring the law of the state, civil and criminal, into harmony with modern conditions." This body was instructed to make a report of its recommendations on or before March 15, 1924. It has prepared a report pointing out that the adequate execution of the project sketched by the statute will be the work of years. The way out of our troubles is not so near as those who think such things can be done over night might surmise. Let me, therefore, discuss what the practicing lawyer can do now to aid in the administration of justice.

May we not at first address ourselves with candor to a consideration of the practicing lawyer's place in society? As an attorney, he differs from other agents who manage the affairs of a principal in that he is an officer of the court whose official misconduct may be inquired into in a summary manner and punished by the court. Other agents may govern their conduct by the rules of law or by the code

"Translation by Justice Charles B. Sears. 'L. 1923, ch. 575, sec. I.