A Practical Program of Procedural Reform administration of justice without law.
But forms and mles will always operate more or less mechanically, and in con sequence will always give rise to dis satisfaction with the justice administered
thereby.
Because
of
this
inherent
difficulty in all judicial administration, we must look for the chief benefits of procedural reform, not so much toward obviating popular discontent
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there are usually practice acts expressly providing, or at least clearly assuming, things of which any effective reform
must rid us. matters,
it
With respect to these is obvious
that
judicial
decision is powerless. Yet we must not overlook the achievements of Judge Doe in New Hampshire. With only an ordinary statute of jeofails and amend ments to work upon, perceiving what
with the workings of the courts, although
judges in code states, with the aid of
such discontent may be diminished to no small extent, as toward relieving
better legislative provisions, had not
our overworked courts of about twenty
perceived, that forms of action and distinction between legal and equitable proceedings were formal, not substantial,
five per cent. of the points now sub mitted to them—points which have no real connection with the substantive rights of the parties litigant,——-and toward enabling lawyers to study and
or vice versa,“ and to allow mandamus,
present their cases on the substantive
or relief in the nature thereof, when
law more thoroughly and intelligently, so as to assist the courts more effectively, and thus assure greater certainty and precision of application of the rules on
the case made showed it proper, although
which rights depend." Premising so much, I purpose to
example of legislation in other jurisdic
consider (1) the best means of achieving procedural reform in an American state
he did not hesitate to allow the form of action to be changed by amendment,"
to allow amendment from law to equity
a wholly different remedy had been applied for.“ For these beneficent strokes of judicial audacity, he had the tions. But he went beyond this and settled judicially, without waiting for
today, (2) the leading principles upon
legislation, that where error at a trial requires a reversal of a judgment, the
which such a reform should proceed and the chief improvements which it should attempt to achieve.
prior proceedings shall be saved so far as and wherever possible, and a new trial had only of the matter affected directly
There are three agencies through which reform of procedure may be brought about conceivably. These are
by the error, if the latter is separable.“
(1) judicial decision, (2) rules of court,
A Mansfield or a Doe, however, is not to be found on every bench, and in the hands of any less than they were, the
and (3) legislation.
Perhaps at the
power to make such decisions would be
present time the scope of the first agency is so restricted by legislation as to make
to judicial improvement of the law is
it impracticable for the attainment of any large results. Where there are
spectively.
not codes, going into minute detail,
to turn the courts into experiment
dangerous. that
For
judicial
the
changes
great
obstacle
operate retro
It is not fair to litigants
stations in which judicial reformers l‘About 35§per cent. of the points decided by our highest courts each year are points of practice. If that burden may be lessened. the benefit to courts, lawyers. and the law needs not be argued. I submit that reduction from thirty-five per cent. to ten per cent. is perfectly feasible. and would be no small relief to our courts.
"See Henning's Life of Doe; in Lewis, Great American Lawyers. vol. viii, . 239, 254. “ .lfetcalf v. Gilmore, 59 N. . 433. "Boody v. Watson, 64 N. H., 172; Atty-General v. Tagiart, 66 N. H., 369. 10 L son v. Lyman, 49 N. H., 582.
