A Practical Program of Procedural Reform‘

By Roscoe Potmn

NE needs but look about him to see that procedural reform is in the

air. The subject has progressed beyond the stage of discussion by jurists and

teachers and controversy in periodicals, legal and lay, and has entered upon the practical stage. To say nothing of the elaborate measure pending in this state,

bills- for reform of federal procedure, including one for a commission to draft

a complete federal practice act, are before Congress, and procedural reform has received the weighty approval of the President; a commission on delay in the administration of justice has reported recently in Massachusetts; a committee

of the Association of the Bar of the City of New York has put forth a printed‘ report on simplification of procedure; Kansas has adopted, at the instance of the State Bar Association, a revised code of procedure which em bodies many notable reforms; the

shall prevail and the machinery of justice shall be restrained by and made strictly to serve the end for which it exists. Such periods of rigidity and liberality in procedure have alternated throughout

the history of our law. What Mr. Zane has called the Golden Age of the Common Law, in which the power to make new writs, liberally exercised, indeed assured that no wrong, or at least no type of

wrong, should be without a remedy, was succeeded by a period of hard and

fast actions in which a statutory attempt to restore the former flexibility could

only give us the action on the case. A period of free amendment of the record was succeeded by one in which the

final and unalterable nature of the record became a dogma and gave rise to a record-worship from which our procedure

Bar Association of San Francisco recently

suffers still, so that, as Blackstone said long ago, suitors have “sufiered as much by this scrupulous obstinacy and literal

has procured important reforms in the

strictness of the courts as they could

criminal procedure of California; and the American Bar Association now maintains what is practically a standing committee on delay and expense in legal procedure. Even more significant, there

are notable signs of increasing liberality in judicial decisions on questions of practice.‘ Thus, after a period of rigidity in practice, in which substance has been sacrificed to form and end has been subordinated to means, we are

have done even by their iniquity.”I The judicial liberality of the year books with respect to proceedings before the court, when pleadings were settled

orally and not made part of the record until the legal phases of the case had been thrashed out, was arrested in the

fifteenth and sixteenth centuries‘ and gave us in the seventeenth century the

high-water mark of technicality in pleading. A new period of liberality

evidently about to enter upon a period

set in at the end of the eighteenth cen

of liberality in which the substance

tury, when Lord Mansfield made of the

count for money had and received a bill "Presented at the annual meeting of the Illinois State Bar Association, June 23, 1910. ‘Cockenll v. Henderson (Kan.), 105 Pac. Rep., 443; Byason v. Territory (Okla), 103 Pac. Rep., 532; P0091: v. Strolla, 191 N. Y., 42, 61, 66-7.

'3 Bl. Comm., 411. ‘Cf. Co. Lit., 304a, 3041).