« FöregåendeFortsätt »
No, the work is too exacting and too intimately connected with the welfare of the community not to be done consciously and systematically, and to be left to casual judicial contributions or the occasional incidence of a law suit. The work of assimilating the raw material, of restating the law in its entirety, must be done by those in position to give their entire time to the arduous task. Here the growing body of teachers of the law find a natural field. I do not mean to suggest the establishment of ex cathedra learning. Quite the contrary. The work involves humility, the trained humility of those who recognize that the ascertained is but a pitiably small fraction of the ascertainable. What we need are doctrinal writers—men who labor steadily upon law as an organic whole, who should produce tentative working hypotheses to be tested, revised and modified as the actualities of controversy require. For the work of the law schools must meet the tests and suffer the modifications of practical experience. Bench and Bar will apply such tests and make such modifications.
True enough, law is by no means a fixed science. In law, as Justice Holmes has pointed out again and again, we are dealing almost wholly with considerations of social advantage which very rarely permit of quantitative determination. This need not deter us from the scientific method; it all the more makes scientific treatment our soundest hope. While not to so large a degree as law, the whole history of medicine demonstrates that it is a science of probabilities and not of certainties. But for that very reason the medical schools have become organized experiment stations for working out theories which the practitioner applies, tests and corrects.
The same thing must be done for law by the law schools. The same thing was done at a previous stage in our legal history. In the formative days of our law, Story, as Professor Pound has so brilliantly told us, restated the English common law and thereby secured its acceptance as the basis of the American common law against the contending pressure of French law. In a similar way, if to a less degree, John Chipman Gray has furnished the basis for judicial decisions upon complicated questions of property law, and we are now witnessing the steady, wholesome influence of Dean Wigmore upon the law of evidence
throughout the country. Story's and Gray's and Wigmore's works were essentially academic products.
Again, so long as the energies of courts necessarily are spent upon decisions of specific cases, the tendency is inevitably towards building up so-called local law. As a result there is an all too unfortunate emphasis upon local differences, and differences multiply into further separating anomalies. This tendency to particularism can only partly be arrested by the movement for uniform legislation. For the greatest field in the law is bound to remain development through decisions. Here likewise the law schools can help greatly. By the systematic treatment of the law, after thorough testing of all available jural matter, through the production of treatises of commanding authority and through a demonstration of identity of problems throughout the country, the law schools would further unity of decisions and thereby uniformity of law in the various jurisdictions.
Of course, great men—men like Ames and Holmes and Maitland and Thayer—will respond to the hunger of creation that is in them. But the scholarship that is now needed should not depend upon the accident of genius. Here, as elsewhere, opinion is in itself a creative force. If the Bar and Bench will require of law schools their needed share in the development of the law, the law schools will be compelled to meet the need. Therefore the profession should demand law schools fit for this work—the work not merely of training practitioners but of helping to develop the law, of participating in a great state service.
Not only by producing treatises to which they have devoted years of research, but in their class-room work, the law school teachers can assist the law in its needed response to present demands. It is not enough that young men should come from our schools equipped to become skillful practitioners, armed with precedent and ready in argument. We fail in our important office if they do not feel that society has breathed into law the breath of life and made it a living, serving soul. We must show them the law as an instrument and not an end of organized humanity. We make of them clever pleaders but not lawyers if they fail to catch the glorious vision of the law, not as a harsh Procrustean bed into which all persons and all societies must inexorably be fitted, but as a vital agency for human betterment.
Not so long ago sympathetic observers, like Lord Bryce, reported the loss of prestige of the profession. For the time being the lawyer was eclipsed because he went outside of his field; he became the subordinate to wealth, instead of the director of social forces. The lawyer is undoubtedly again coming into his own. Never were the demands upon him greater. Our society is becoming more and more complex, which means more law and not less law. The lawyer, by tradition and by training, is the expert in affairs. He must adapt old loyalties to new facts; he, above all, must find ways to reconcile order with progress. The problems ahead present to our profession opportunities for great leadership, but correspondingly they call for equipment adequate to the task; they call for fresh thinking, disinterested courage, and vision.
COMMITTEE ON JURISPRUDENCE AND LAW REFORM.
To the American Bar Association:
Your Committee on Jurisprudence and Law Reform would respectfully beg leave to submit their report as follows:
There were referred to the committee for consideration and report three separate matters, viz.:
1. The matter of the protection of aliens, etc., referred to in the annual address of President Taft delivered at Washington in October, 1914, and concretely presented by House Bill No. 21073,
“For the Better Protection of Aliens and for the Enforcement of their Treaty Rights," introduced at the 3d session of the 63d Congress, January 20, 1915, by the Hon. Richard Bartholdt, M. C.
2. The matter of interest upon claims and judgments against the United States as presented by Senate Bill No. 4924 of the 62d Congress and more especially by Senate Bill No. 2274 presented at the 1st session of the 63d Congress on May 22, 1913, to amend Section 177 of the Judicial Code.
3. A Bill to regulate expert testimony presented by the Committee on Insanity and Criminal Responsibility to the American Institute of Criminal Law and Criminology, October 22, 1914, and unanimously approved by the Institute.
With respect to these several matters we beg to report and recommend as follows:
1. As to No. 1, supra, we recommend the approval of the proposed bill with the following changes:
In section 1 strike out the words,
“ The aliens whose rights are affected may be joined as complainants with the United States in such equitable proceeding."
In section 2 strike out the words, “and the consent of such citizen or subject of a foreign country, party defendant."
In section 3 strike out the word “like” so that the phrase shall read, “shall constitute a crime against the peace and dignity of the United States, etc,” in lieu and instead of “shall constitute a like crime, etc."
We believe that whenever a matter is of sufficient importance to justify the President in directing action to be taken by the Attorney-General, the United States and the United States alone should be the complaining party, and its action should in no wise be complicated by the consent or non-consent of any other person whomsoever.
2. As to No. 2, supra, we base our recommendation on Senate Bill No. 2274. We recommend that the words, “a judgment for the claimant shall include interest at 6 per cent per annum from the time the debt was due and payable, and in all other judgments against the United States the court shall include interest at the same rate as an element in the damages awarded if necessary fully to compensate the claimant,” be omitted, and in lieu thereof the following words be substituted, “ the court shall in its discretion allow interest at a rate not less than 3 nor more than 4 per cent per annum from the time when in its judgment payment has been unjustly withheld.”
The United States on its bonded indebtedness pays -interest at the rate of 2,3 and 4 per cent only and it ought not to be penalized by the acts or omissions of some careless, negligent or incompetent official.
Persons about to contract with the government may protect themselves in their contracts providing the amounts that they are to receive, and persons having claims that do not arise out of express contracts should be content with receiving a rate of interest that the United States accords to other parties contracting with it.
3. As to No. 3, supra, with some measure of hesitation we recommend the approval of the Keedy Bill except that, in lieu of section 3, we recommend a section as follows: