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I now take up another evil which is seriously impeding the smooth operation of our system of administering justice. I refer to the multiplication of statutes and law reports. It is hardly necessary to give figures. The enormity of the abuse and the confusion it is causing is admitted by all. Bar associations and lawyers generally began to take notice of it long ago and many remedies have been suggested. In 1914 the American Bar Association recognized that the increase in the number and volume of reported cases and the absence of uniformity in the plan and classification of statute law, were creating great inconvenience and confusion. A committee later investigated the situation and reached the conclusion that uniformity in statutes was desirable, but exceedingly difficult to accomplish, that the opinions of the courts were too long, that briefs of counsel should not be printed in the reports, that dissenting opinions should not be published, that long citations from numerous opinions were useless and generally merely "padded" the reports, that statements of the facts were too much extended and that the undue length of briefs of counsel tended to increase the length of opinions and should be curtailed. But practically no effective remedy has been suggested or, if it has, no steps have been taken to ameliorate the conditions described. American legal literature goes on increasing in disheartening and colossal bulk. Laymen wonder how lawyers can know what is in the books, and the answer is that they don't. No lawyer can have knowledge as to statute law or the decisions of the court without a resort in each case to indexes and digests and then to an examination of a multitude of statutes and decisions; most of which prove not to be pertinent. In the busy modern law office,

particularly in populous centers, this laborious work is done by law students or law clerks. But the complicated process greatly increases the labors of senior counsel and the expense necessarily falls on the unfortunate client. Figures need not be stated in much detail, but when one considers the limited number of pages of the lightest kind of literature one can read in a year, it has some significance that there were in 1922 added to the literature of the law, nearly 200,000 large pages of printed matter; that from 1909 to 1913 there were rendered by state and federal courts, 65,379 decisions in 630 volumes, and that in 1914 there were 8,420 volumes of American law reports. To the law reports must be added the grist of laws on all kinds of subjects enacted by state legislatures and the Federal Congress at each session. Thus in the five years preceding 1914, according to a count made at the instance of Mr. Elihu Root, there were 62,000 statutes passed, and there were in force about 2,000,000 laws and ordinances to which were being added each year about 200,000 new ones.

Lawyers frequently multiply and elaborate obviously untenable arguments, often evoking unnecessary attention from a voluble judge; they insist upon re-arguments in hopeless situations and press desperate appeals; and they frequently seek relief for their clients by special legislation having little or no relation to the general welfare. But for the voluminousness of law reports a large responsibility must fall on the judges. The ideal judge confines himself to a brief, clear-cut analysis and a logical conclusion. He has the power of lucid statement; a sense of literary style; sufficient industry to revise and then again revise; some facility in the art of condensation; and he avoids lengthy and irrelevant dis

sertations without definite purpose, representing merely his individual views. He studies the art of stating principles established by the precedents without page after page of quotations from authorities, many of them remotely applicable; and he avoids, except in occasional cases, useless dissenting opinions. Finally, he has no concern about the importance of making a "record" which has no value except to himself.

Judge Cardozo has made a trenchant analysis of the causes of judicial exuberance. He classifies judicial opinions thus: "There is the type magisterial or imperative; the type laconic or sententious; the type conversational or homely; the type refined or artificial, smelling of the lamp, verging at times upon preciosity or euphuism; the type demonstrative or persuasive and finally the type tonsorial or agglutinative, so-called from the shears and pastepot which are its implements and emblem."

The "tonsorial or agglutinative" type is undoubtedly accountable for useless volume. Lengthy quotations from numerous opinions, more or less pertinent, are followed by the formula: "We deduce from these opinions the following rule, etc., etc." If the deduction were first stated with a bare reference to the decisions upon which it is based, thousands of pages of print would be saved. In the decisions of English judges the art of condensation is highly cultivated. "For quotable good things, for pregnant aphorisms, for touchstones of ready application, the opinions of English judges are a mine of instruction and a treasury of joy."

But it will be said that counsel in their briefs establish a model by a too-free resort to paste and scissors; and there is much in the suggestion. Argument and ad

vocacy, however, are quite different from an exercise by a judge of the critical faculty which winnows the false, the irrelevant, the unsound, the specious and the emotional, and, after weighing all the "points" briefly decides. Briefs of counsel are not what they ought to be. They are generally written arguments, far from brief, and they seek to present every reason, however tenuous, with copious quotations from the record and the precedents. Revision for the purpose of condensation is not much cultivated as an art by American lawyers. Repetition and elaboration are far more enticing. An idea prevails that an argument will gain in lucidity and force by variety in the form of expression. Aside from furnishing a bad model for the judges, the voluminous briefs of counsel increase the labors of the court and the printing expenses.

But it will be said for the zealous lawyer that he must try to reach the judicial mind in all its phases, the logical, the emotional, the prejudiced, the personal, the informed and the uninformed;-in case of doubt as to an argument, the temptation is "to put it in." There is a familiar anecdote of a judge of an appellate court, who interrupted an eminent lawyer in his statement of a proposition, with the question "Do you really think, Mr. that that is the law?" to which the lawyer replied: "To be candid, Your Honor, I do not, but Your Honor's knowledge of the law is so much greater than mine that I thought I might be wrong."

A kind of judicial opinion which tends to extend unnecessarily legal literature is one which states two or three grounds of decision, any one of which would alone be sufficient. Indulgence in this kind of opinion weakens the force of the decision as a precedent, for it may plau

sibly be argued that one of a number of grounds on which a decision is based is a mere dictum. But this generalization must be qualified; for some of the greatest and most decisive decisions in our judicial history, in the sense I have indicated, have been obiter dicta. In some of the epoch-making decisions of Chief Justice Marshall the doctrine of implied powers which has done more than anything else to fashion our nation into a firm union of states, was established by considerations not necessary to the settlement of the concrete controversy before the Court. But it is only the giant artificers that may set at naught the sound rule that dicta are to be avoided. With a somewhat different purpose Judge Cardozo has said:

"Most of us are so uncertain of our strength, so beset with doubts and difficulties, that we feel oppressed with the need of justifying every holding by analogies and precedents and an exposure of the reasons. The masters are content to say, 'The elect will understand, there is no need to write for others.''

And the masters walk with a "giant stride." But giants, after all "are not met at every turn, and for most of us, even if we are not pygmies, the gait of ordinary men is the safer manner of advance." Here comes the difficulty. Our judicial artificers do not always realize that they are not of the giant rank; and lured by a superfluity of untenable reasons urged by counsel, they pile one reason on another to the confusion of lawyers thereafter seeking a clear precedent.

Finally, the official reporter or the judge in his opinion sometimes indulges in a voluminous statement of the facts of a case, wholly unnecessary to a proper under

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