The Green Bag
442
may try on their ideas of legal improve nor is it fair to
way. But the objections to this course are serious. In the first place it makes
judges to ask them thus to sacrifice the
progress one-sided. Advance takes place
ment retroactively,
interests of individual litigants in order
here and there, as it were by jerks, but
to do what ought to be accomplished
the general system is left as it was.
by rules laid down in advance of decision.
it happens not infrequently that defects
Reform by exercise of the power of courts to make rules is free from the latter difliculty. But here again, in most jurisdictions and for most purposes,
are really in the system as a whole more than in the details. In that event, their place in the system and are molded
the detailed provisions of practice acts or codes stand in the way of efiective
thereto by construction until they fail of effect. A more serious objection is
improvement. Hence we may take it that legislation must be resorted to as
that such a succession of acts, when the
the direct and immediate agency of reform.
of enactment with all the characteristics
Assuming that legislation is imperative if not as the sole means, at least as a
us a complete scheme in all its details,
precursor of procedural reform, three methods are open: (1) A succession of
to be altered only by more legislation.
And
the detailed improvements have to take
work is complete, will give us a mass of a code.
In other words, it will give
laid down in advance by legislation, and
the general model of the codes of pro
Hence, all the arguments that may be urged against a code of procedure or a general practice act going into minute detail, apply with equal force, in the end, to such a succession of acts. On
cedure,
to
the other hand, the advantage of this
cover, all details at one stroke, (3) a short, simple practice act laying out the broad lines only, and, so far as possible
method,—and it must be conceded to be a real advantage,—namely, the
brief practice acts dealing with portions of the subject or with special details, (2) a complete general practice act, after covering,
or
attempting
dealing only with those matters that require legislative change or legislative authority for change, leaving the details to be settled, developed and improved
by general rules to be devised or adopted by the judges.
It cannot be denied that the first of these methods has been pursued thus far in this state with no little success. Three notable reforms were brought about in the last practice act, namely, the power of transfer from
Appellate Court to Supreme Court and vice versa, the power of amendment from law to equity and vice versa, and the power of suit by an assignee in his own name. The limitation of double appeals in the certioran' act is another instance of what may be done in this
gradual introduction of changes as bench and bar are ready for them, may be achieved equally by leaving details to be worked out by rules of court. It would seem, therefore, that the choice must be between the second and
the third of the three methods named. And herein is the first and most vital problem in devising a program of pro cedural reform. At the very outset,
every jurisdiction must choose between a brief, scientific outline of, say, one hundred sections, to be developed by" rules which may be enacted, revised,
amended, or abrogated by the judges, in the light of experience of their actual operation, or a detailed code of some two thousand sections, at least, amend
able only by means of further legislation, to be developed by judicial constructions
