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The Green Bag
and fast legislative rules. Only legis lative amendment could effect a cure. But the amendment, when it came, was
subject to the same difiiculty. It was rigid and unalterable. Hence, as might have been expected, the cure was but
partial, and the new section and provi sions founded upon it have been prolific sources of litigation in New York and in the other code jurisdictions ever since." Rules of court, as a means of develop ing the details of procedure, are no experiment. Not only was this an ancient common-law power, both in
courts of law and in the court of chancery, but it was given to the Supreme Court of the United States, with respect to
equity practice and admiralty practice, by an act of 1842.20 It was given to the same court by the Bankruptcy Act of 1898" and by the Copyright Act of 1909.22 It has also been given, within fairly wide limits, to the Municipal
Court of Chicago.” According to news paper reports it is also to be given to the
new federal Court of Commerce.
And
if, in some of these cases, as, for instance,
the federal equity rules, no great things have resulted from this power, at least no harm has followed, and the power is at hand to be used whenever the demand for improvement becomes acute. More
over, the orders in bankruptcy, which are much more modern than the equity rules, and have been improved by amendment since their adoption, show the possibilities of such a system.
This principle of development of the details of procedure through rules of court, rather than through minute legislation, is submitted and discussed
at length in the report of the special 1” See Pomeroy, Code Remedies, §§ 464-478, for the details. 20 Comp. Stat. U. S. (1901). 5917. 2' National Bankru toy Act, 1898, Q 30. 2' Cha . 320. 35 tat. U. 5.. 1075. §25. See 214 U. .. 533. 19:7hl;né§i;al Court Act of 1907, 520, Laws of
committee of the AmericanLBar Asso ciation to suggest remedies and formu late proposed laws to prevent delay and unnecessary cost in litigation pre sented to the Detroit meeting in 1909."
It has been approved as a principle of procedural reform by President Taft.“ The advantages of the principle have been summarized, in the report already cited, as follows :— "(1) No one can anticipate in advance the exact workings of a detailed rule of prac tice. Change and adaptation to the exigencies of judicial administration is inevitable. The judges are best qualified to determine what experience requires and how the rule is act ually working. (2) The opinion of the bar as to the working of a rule may be made known to and made to afiect the action of the judges in framing new rules or improving old ones much more easily and with better results than where the legislature must be applied to. (3)
Small details do not interest the legis
lature, and it is almost impossible to correct them. (4) Too often details in which some one member of the legislature has a personal interest are dealt with by legislation, and not always in accord with the real advantages of procedure. (5) As experience shows that changes are needed and what they are, there ought to be a possibility of speedy adjustment of details of procedure. Only rules of court can meet this demand."’0
The case
against the principle for
"Rep. Am. Bar. Ass'n. xxxiv, 578 595-600. ""ln the first place. the codes of procedure are enerally much too elaborate. It is ssible to have a code of procedure simple an eflective. This is shown by the present procedure in the English courts, most of which is framed by rules of court." The Delays of the Law, 18 Yale Law Journal, 28. Again: "The English system, con sisting of a few eneral principles laid down in the practice act an supglemented by rules of court to be adopted b the upreme Court of Judicature, has worked wit great benefit to the liti ant, and has secured much expedition in the sett ement of controversies. and has practically eliminated the discussion of points of practice and plea ' in the appellate courts. My impression is that ' the judges of the court of last resort were charged with the responsibility within general lines to be defined by the legislature for roviding’ea system in which the hearings on appea should as far as possible with respect to the merits and not with respect to procedure, and which should make for expedition, the are about as well qualified to do this as an bod);r to whom the matter can be delegated." I .. p . 2031.Rep. Am. Bar Ass'n. xxxiv, 597.
