Page images
PDF
EPUB

content that their union should be dissolved; indeed, in many cases (with no intention to violate the law) they have agreed upon that result. Perhaps after the decree both remarry, and the validity of the divorce is thus practically removed from question. Even when there is not a remarriage, both parties may be willing to permit the presumptive status to remain unquestioned. I will not attempt to estimate in what proportion of cases the claim of residence stands on the flimsy basis I have described. That there are many is obvious to a casual observer; and here is a situation calling for reform. If a uniform divorce law is impracticable because the social views of divorce differ in different localities, at least it would be in the public interest that there should be some uniformity of the law relating to residence as a basis for jurisdiction.

The requirements as to domicile in France held to be sufficient to give the courts jurisdiction are, from the standpoint of American law, frequently inadequate. Indeed, assuming a flight from America to France, a speedy resort to the French courts, a brief domicile, compliance with certain conventional rules and a speedy return to America after a decree is granted, there would appear to be a tenuous foundation for a lasting state of matrimonial disunity. But here again, a majority of American citizens who take refuge in France as a cure for domestic infelicity, have well placed confidence that no question will be raised as to the validity of the French decree, and the remarriage of both the parties, or perhaps of the defendant, makes the possibility of question still more remote. It is, nevertheless, an anomalous situation, and when a question is raised with the results indicated, there is a tendency to impair the respect of the people

concerning the force of their laws and the methods of their administration.

I next select for comment what is commonly known as negligence litigation, because in the large centers of population this has caused a congestion in the courts, subjecting many litigants to delays and expense amounting to a practical denial of justice. With the enormous development of the country, accidents resulting in death or injury, and as a consequence, suits for damages, have greatly increased. Such suits are a gruesome kind of litigation. The dominant fact always is that some unfortunate person, frequently in destitute circumstances, has been killed or injured. Human sympathies are, of course, enlisted for the plaintiff. Everyone hopes that some legal way will be found for him to succeed in his suit. But, on the other hand, our institutions are founded upon the sanctity of private property, and property is not to be taken from any man or corporation except by due process of law. Thus, unless a settlement of damages is made, a lawsuit results. It is not a satisfactory method of settling such a controversy. In the application of the forces of nature to the uses of man, the chances of injury to the individual have greatly increased. The risk of living has been heightened. The cost to industrial and transportation companies for damages to their employees can be estimated within reasonable limits, and probably the damage caused to others through the operation of the forces referred to is not beyond approximate calculation, because the cost of wastage by injury or death is more or less constant. Ought there not then to be devised some method by which such damage may be compensated for, other than by proceedings in the courts which clog them in disposing of other

business? Employment liability measures are a step in the right direction, though by no means perfect. Insurance against accidents is of some value, but it does not relieve the courts of the mass of negligence litigation, since the insurance companies assume the burden of defense.

Furthermore, the law of negligence itself is far from satisfactory. For instance, although liability on the part of the defendant is predicated upon his negligence, if there is the slightest negligence upon the part of the plaintiff, he is precluded from recovery. There is an element of injustice in an immunity based upon what may be the slightest negligence of the injured person, when the fault of the defendant is of the gravest character. Some way should be devised of apportioning damages, as in the case of collisions at sea, so that the person injured and the defendant may jointly bear the burden of the loss in some equitable proportion.

Most negligence suits are brought by lawyers who agree to serve for fees contingent upon a successful recovery, that is, for a proportion of the amount recovered. In England the contingent fee does not prevail. The extent to which it is legal in this country is settled; and it is not regarded as unethical from the professional standpoint, if the proportion of the recovery exacted is not extortionate. But the contingent fee has undoubtedly increased litigation. While many honorable members agree to accept such fees, they have brought into existence a class of so-called "ambulance chasers" who, contrary to professional ethics, adopt methods of seeking business of this kind which reflect no credit upon the profession; and even with lawyers of standing who accept such retainers, there is a mingling

of the financial interests of the client and of the lawyer which often makes it difficult to advise impartially upon the conduct of the litigation, or as to a proposed settle

ment.

I have thus pointed out a few matters to which law reformers will some day have to direct their attention. They are mentioned for illustration only; for there are many others.

The organized bar is constantly endeavoring to elevate the tone of its members and to secure the selection of competent and high-minded lawyers for the bench. Every part of our law and its administration is receiving systematic attention from lawyers and committees of bar associations with a view to its improvement. An era of law reform is clearly in progress. But the efforts of lawyers and judges can only be successful if they receive the support of agencies representing the general public. That this support will come is indicated by many significant signs, and particularly by platform declarations of our great political parties and earnest exhortations of our Presidents. Of the latter not the least appealing was the Memorial Day address of President Coolidge on May 31, 1925, viz:

"We are not a lawless people, but we are too frequently a careless one. The multiplicity of laws, the varied possibilities of appeals, the disposition to technicality in procedure, the delays and consequent expense of litigation which inevitably inure to the advantage of wealth and specialized ability-all these have many times been recounted as reproaches to us. It is strange that such laxities should persist in a time like the present, which is marked by a determined upward movement in behalf of the social welfare. But they do exist.

They demonstrate a need for better, prompter, less irksome and expensive administration of the laws. They point the necessity for simplification and codification of laws; for uniformity of procedure; for more accurate delimination of state and federal authority.' Leaders of the bar individually and representative groups in associations are, with increasing effectiveness, working to procure reforms in our law and its administration, to the end that the American people may not lose the only institution through which they can expect to enjoy equal justice for the individual and permanence and stability for the nation. Our legal system is of inestimable value to the entire people, but if they would enjoy its benefits they must make an effort and a sacrifice that it may not, by their indifference or neglect, become disabled to perform its high and noble function. During the last quarter of a century remedies have been pressed for adoption which would go far to remove the defects in the administration of justice, so far as they are not due to conditions of our civilization which cannot be reached by mere reform of law and procedure. That these remedies have not been put into effective operation should not be a source of discouragement. That lawyers and judges have made continued efforts for reform is attested by the history of the profession during the last quarter of a century; but upon them must still rest the chief responsibility to furnish effective leadership. That they will discharge that responsibility I do not doubt; for they, of all others in the community, from instinct and training, know that without justice promptly administered, our institutions cannot long endure, and they, better than those who have not studied the history of our jurisprudence, have also

« PreviousContinue »