The sun. [volume] (New York [N.Y.]) 1833-1916, 1916-01-15
MAKE LEGAL PROCEDURE
p HUGHES URGES
Supreme Court Justice Tells of Network of Legislative
Rules of Practice Which, in Their Completely,
Are a Reproach to the State"

eIeHients or TINS system. without per-
uniting necessary local autonomy 20 be
destroyed by the unwarranted assertion
OF Federal power. and without allowing
State action TO throw out OF gear the
requisite machinery for unity OF control
In national concerns. emand the most
Intelligent appreciation of all the facts
Of our interrelated affairs and far moro
careful efforts In cooperation than we
have hitherto put forth.
The Judicial Function.
Manifestly our governmental arrange
ment would be unavoidable were 1t not
for appropriate provision for determln-
Ing the scope and validity Of State and
Federal laws. without II we should be
In tho direst confusion.
But important as Is the judicial func-
ton In maintaining the integrity of the
constitutional system. II should not he
overwhelmed. nor should work be ex-
pected OF 1t which SHOULD otherwise be
performed. No opportunity should be
, neglected 70 secure hat wise cooperation
which In Oaf network OF activities can
go FAR 10 avoid unnecessary friction.
While l cannot enter the domain OF
legislative policy. may ] suggest that
the resources OF accommodation have
not been exhausted indeed. they have
scarcely beer touched, Very often the
differences that exist between State and
Federal laws governing different phases
OF the same general activity are due
more TO accident or lack OF forethought
than to difference in deliberate purpose.
We have had in our States too little re-
gard for the remoter and indirect con-
sequences of legislation. There has
been. perhaps. too much thought OF
questions OF abstract power rather than
OF It's sagacious use by those who after
all must have a common prosperity or
none at all.
| like to think OF the courts as in
the truest sense the expert agents OF
OBSERVATION-DISCLOSURES deliberate judy
ment under conditions essential to sta
bility. and therefore In their proper
action the necessary in"strumentalitles
OF progress. We are constantly re-
minded Of the fact that legislation. even
when making important changes. IL
new only In part. II cannot escape Its
roots. In providing what Is new It
also brings forward what IL old. Con-
cepts long familiar In the law are in
troduced into new statutes; language
can hardly be used otherwise. despite
crudities In drafting. and In nearly every
line IL a connection with the past which
demands the expert judicial interpreter.
L~egislation Affecting the Courts.
There are two tendencies In lsgisla-
ilon. here and there observable. which
I cannot but think are opposed to a
proper conception OF the function OF the
courts. There Is the tendency To as
sign TO the courts administrative duties
which do not belong to them. and some
times Judges are denied appropriate
authority.
Legislation OF the FIRST sort undoubt-
AZ, at... HrA,,. IA r,tus 80 npsnr
administrative agencies II shows a de-
sire to escape their authority and ia
have the judgment OF judicial tribunals
with whose standards the public IL IA
miliar. in the final decision Of Difficult,
administrative problems. II seems &c
me to be the wrong way 10 reach the
' right result. Thu courts cannot be sub
stitu,ed for administrative agencies nor
as I believe. IL u to the ultimate al
= vantage OF thu community to divide be
tween them the responsibility FOR purel,
administrative action.
The other tendency Of which | hav.
spoken Is occasionally observed In lex
isla,ion which denies 10 Judges the au.
! thor!ty which would srem 10 he needed
} for the efficient discharg" OF judiCia
duty. Thus. In some jurisdictions tn,
I freedom OF the Judge In iustructing III.
Jury Is very considerably curtailed l,
, a manner which hetrays a regrcttabl'
I distrust. This of curse carries IN,
lesson OF the extreme Importance o
: such conduct on the part Of our Judge
1 Az will commend their office To tn,
: community they serve. But I ycutur
r to say that no intelligent citizen la
. ever taken part as a Jurylnan in a tria
I over which presided a thoroughly com
petent Judge. who swiftly. fairly anC
firmly applied the law. extrica,ing tn
Q essential merits OF the c%ontrovers,
= from h confusing details OF testimon.
= and argument. without profound respec
I for the expert knowledge and traine'
= capacity which successfully meet
test 30 severe. There can he no respec
:. for the law without competent admin
= istration and there can he no competen
!, administrative without adequate power
y We shall never rise To our opportuni
. ties In this country and secure a prope
, discharge OF the public business unit
u we get over our dislike of experts an,
the difficulties In the way of needle
u improvements In the administration q
! Justice will not be overcome by tyinI
- the hands OF those most competent I
= deal with them.
y Reform In Procedure.
4 n this leads me 10 speak briefly,
conclusion, OF the urgent needs Of RI
form Ia judicial procedure. II | ma
be permitted to speak with the lIbert
OF a member OF this association, I ar
very glad that at last the time has al
- rived when we may reasonably expec
radical changes In our procedural Law
We have very unnecessary difference
with respect to different courts. Tt
essentials OF procedure are simple. an
they should conform to one simple TYP,
with only such notifications "a AT
necessary to adapt It to differences I
a jurisdiction. We ave become accu.
IN toned to a network Of legislative rul,
OF practice which In their conplexi,
N are n reproach TO the State, The rem
n edy. I believe, Is to replace these rul.
l. with a few statutory provisions form
Ing the basis OF procedure, leaving a
n. the details to he supplied by rules {
il court. The important equity practi,
of the Federal courts OF the countr
/. Is governed without difficulty by a fe
a rules promulgated by the Supren
Court. There In no other way. II seen
to me. to give the requisite slmplicii
and elasticity to procedure,
" Justice In the minor courts-the on
- a., a ,la- n,ylli,na ~ IN naa,I. I,,n