THE AMERICAN LAW

INSTITUTE

PROCEEDINGS

VOLUME I

February 23, 1923 to May 19, 1923

JUNE 1, 1923.

ELIHU ROOT, Honorary President

GEORGE W. WICKERSHAM, PresidentBENJAMIN N. CARDOZO, Vice-President

GEORGE WELWOOD MURRAY, Treasurer

Wm. DIRAPER. LEWIs, Director, 3400 Chestnut Street,

Philadelphia, Pa.

Members o)

GEORGE E. ALTER

HENRY M. BATES

BENJAMIN N. CARDOZO

JOHN W. DAVIS

WILLIAM BROWNE HALE

JAMES P. HALL

LEARNED HAND

ALEXANDER C. KING

EDWARD J. MCCUTCHEN

GEORGE W.

the Council:

JOHN G. MILBURN

ANDREW J. MONTAGUE

VICTOR MORAWETZ

GEORGE WELWOOD MURRAY

EMMETT N. PARKER

ELIHU ROOT

ARTHUR P. RUGG

CoRDENIo A. SEVERANCE

HARLAN F. STONE

WICKERSHAM

Members of the Executive Committee of theCouncil:

BENJAMIN N. CARDOZO

JOHN W. DAVIS

JAMES P. HALL

JOHN G. MILBURN

ANDREW J. MONTAGUE

VICTOR MORAWETZ

GEORGE WELWOOD MURRAY

ELIHU ROOT

HARLAN F. STONE

GEORGE W. WICKERSHAM

PART I

Report of the Committee on the Establish-ment of a Permanent Organization for the

Improvement of the Law Proposing

the Establishment of an Ameri-

can Law Institute

PART II

An Account of the Proceedings at the

Organization of the Institute

PART III

Minutes of the Meetings of the Council and ofIts Executive Committee with an Appen-

dix Including the Statement by the

Council to the Carnegie Corpora-tion and the Report on

Organization, Work

and Budget

PART I.

Report of the Committee on the Establish-

ment of a Permanent Organization for the

Improvement of the Law Proposing

the Establishment of an Amer-

ican Law Institute.

MEMBERS OF THE COMMITTEE.

ELIHU RooT, ChairmanGEORGE W. WICKERSHAM, Vice-ChairmanGEORGE WELWOOD MURRAY, TreasurerWM. DR~iAER LEWIS, SecretaryHENRY M. BATESJosErH H. BEALEGEORGE G. BOGERTCHARLES A. BOSTONCHARLES C. BURLINGHAMJAMZES BYRNEBENJAMIN N. CARDozoJOSEPH P. CHAMBERLAINARTHUR L. CoRBINFREDERIC R. COUDERTJOHN W. DAvisERNST FREUNDFREDERICK GREENWILLIAM D. GUTHRIE

HERBERT S. HADLEY

JAMES P. HALLLEARNED HANDALEXANDER C'. KING

R. C. LFFINGWELLEDWARD J. MoGuIREJULIAN W. MACK

WILLIAM E. MIKELLJomnT G. MILBURNVICTOR MORAWETZEDMUND M. MORGAN

JOHN E. O'BRIENTHOMAS I. PARKINSONCUTHUBERT W. POUNDRoScOB POUNDJAMES B'. REYNOLDSHARLAN F. STONECHARLES STRAUSSHENRY W. TAFTJOHN H. WIGMORESAMUEL WILLISTON

CONTENTS

PART I-Recommendations.Page

(A ) Introduction ........................................... 1

(B) General character of the work of any organization estab-

lished by lawyers for the improvement of the law .. 5

(C) Two defects in American law ......................... 7

(D) Need for a restatement of the law ..................... 14

(E) Form of restatement .................................. 19

(F) Legislative enactment of' the restatement as a code not

desirable ........................................ 23

(G) Extent to which legislative action will be necessary to

carry out the purposes of the restatement ......... 26

(H) Nature of the organization undertaking the restatement

of the law ........................................ 29

(1) The restatement must be generally recognized as a

work carried on by the profession in fulfillment of a

public duty ....................................... 29

(2) No existing legal organization adapted to the work

of making the restatement ........................ 29

(3) The organization should have a definite connection

with existing legal organizations .................. 35

(4) The organization to make the restatement of the law

should be established by the representative gathering

of the American bar to which this report is sub-

m itted ............................................ 37

(I) Creation and constitution of the American Law Institute 40

(J) The topics which the Institute may first undertake to

restate ............................................ 43

CONTENTS-Continued.

Page(K) Method of work ..................................... 48

(1) The experience of the National Conference of Com-

missioners on Uniform State Laws ................ 48

(2) Reporters and committees of experts .............. 51

(3) Criticism by members ............................. 52

(4) D irector .......................... ............... 53

(5) Bureau of Research .............................. 53

(6) Legal surveys .................................... 55

(L ) Tim e and cost ........................................ 57

(M ) Conclusion ........................................... 64

PART II-The Law's Uncertainty and Complexity.

(A) Causes of uncertainty ................................. 66

(1) Introductory statement concerning the sources of the

law ............................................... 66

(2) Lack of agreement on the fundamental principles of

the common law .................................. 67

(3) Lack of precision in the use of legal terms ......... 68

(4) Conflicting and badly drawn statutory provisions... 69

(5) Attempts to distinguish between two cases where the

facts present no distinction in the legal principles ap-

plicable ........................................... 70

(6) The great volume of recorded decisions ............ 70

(7) Ignorance of judges and lawyers .................. 73

(8) The number and nature of novel legal questions .... 74

(9) The action of these causes of uncertainty on each

other ..... ........................................ 76

(B) Causes of Complexity ................................. 77

(1) Introductory ..................................... 77

(2) The complexity of the conditions of life ............ 78

CONTENTS-Continued.

Page

(3) Lack of systematic development of the law ........ 81

(4) The unnecessary multiplication of administrative pro-

visions ........................................... 82

(C) Uncertainty and complexity due to varying law in differ-

ent jurisdictions .................................. 85

(1) The nation and each state an independent source of

law .... .......................................... 85

(2) Variations due to differences in economic and social

conditions or in inherited legal systems ............ 85

(3) Accidental variations .............................. 87

(a) In statute law ................................ 87

(b) In court decisions ............................ 87

I. Extent of these variations ................. 87

II. Ignorance as a cause of these variations ... 88

III. Differences in legal theory as a cause of these

variation ................................. 88

IV. Conflicting decisions in a single jurisdiction

as a cause of these variations .............. 89

(4) Effect of varying law in different jurisdictions ..... 91

(a) Injury dependent on amount and character of

intercourse ............. " ..................... 91

(b) Injury where transactions are carried on in two

or more states-conflicts in conflict of laws .... 92

(c) Injury where transactions are carried on wholly

w ithin one state .............................. 94

(D) Factors tending to unify the law ....................... 96

(1) Influence of the decisions of one state on the common

law of other states ................................ 96

(2) Uniform state laws ............................... 97

(3) The increasing exercise of legislative power by the

Federal government .............................. 99

CONTENTS-Continued.

Page

(4) Application of uniform law by the Federal courts .. 100

(5) National law schools ............................. 101

(E) Factors promoting greater certainty and simplicity in the

law, and its better adaptation to the needs of life .. 104

(1) Effect of influences tending to unify the law ....... 104

(2) The recognition of the necessity for the employment

of trained legislative draftsmen in the preparation of

legislation ........................................ 106

(3) The activity of legal, scientific and- civic bodies .... 106

(4) Net result of forces making for certainty and sim-

plicity ............................................ 107

Report of the Committee on the Establishment of aPermanent Organization for the Improvement ofthe Law Proposing the Establishment of anAmerican Law Institute. To be Submitted to aMeeting of Representative Judges, Lawyers andLaw Teachers, to be held on February 23, 1923,at Washington, D. C.

PART I.

RECOMMENDATIONS.

(A) INTRODUCTION.

There is today general dissatisfaction with theadministration of justice. The feeling of dissatisfac-tion is not confined to that radical section of the com-munity which would overthrow existing social, economicand political institutions. If it were, we as lawyerscould afford to ignore it. But the opinion that thelaw is unnecessarily uncertain and complex, that manyof its rules do not work well in practice, and that itsadministration often results not in justice, but in injus-tice, is general among all classes and among persons ofwidely divergent political and social opinions.

It is unnecessary to emphasize here the dangerfrom this general dissatisfaction. It breeds disrespectfor law, and disrespect for law is the corner-stone ofrevolution. The danger would be real, even though thefeeling that much is wrong with our law and its admin-istration had no foundation in fact. There are, how-ever, just causes for complaint. Rightly we areproud of our legal system considered as a whole, but aslawyers we also know that parts of our law are uncer-tain and unnecessarily complex, that there are rules oflaw which are not working well in practice, and that

much of our legal procedure and court organizationneeds revision.

With the knowledge of the need for improvementin the administration of justice has come a conscious-ness of the obligation which rests upon the profession totake informed action to better existing'conditions. Eversince the formation of The American Bar Association in1878 that Association and state and local bar associa-tions have been increasingly active in endeavoring tomaintain high standards of legal ethics and to promotethe simplification of procedure, the uniformity of lawamong the several states, and the improvement oflegal education. But the possible scope of the activityof such associations in the improvement of the law islimited. They are without endowment and moreoverthey are not organized for that patient legal scientificand scholastic work which must precede all real im-provement of our substantive and procedural law.

The formation of our Committee was due to a rec-ognition of these facts. The specific cause of ourorganization was the action taken by the Associationof American Law Schools at its meeting in Chicago inDecember, 1921. For several years that Associationhas had under consideration the establishment of ajuristic center which should direct the attention of thelaw schools towards the improvement of the law andutilize the learning of their faculties to that end. Inves-tigation by its committee convinced the Association thatthe success of the undertaking required the co-operationof all the organized forces of the profession, that is,courts, bar associations, law schools and learned socie-ties. They therefore appointed a committee to securethis necessary co-operation.

At the invitation of this committee of the Associa-tion of American Law Schools, a number of us met, onMay 10th last, in the rooms of the Bar Association

of the City of New York and formed a Committeeon the Establishment of a Permanent Organizationfor the Improvement of the Law. Since the formationof the Committee we have added to its number. Theobject of our ,Committee has been to make a report onthe establishment of such an organization, its constitu-tion, and the specific work which should be first under-taken, and to submit the report to such a representa-tive gathering as we have asked to assemble in the Cityof Washington on Friday, February 2'3d.

The generosity of the Carnegie Corporation hasenabled us to make the investigation necessary to giveus a reasonable confidence in the soundness and prac-ticability of the specific recommendations containedin this Report. On the 27th of last May we appointedtwo groups of advisers, denominated, respectively, Re-porters and Critics. All the members of these groupsare now members of our committee. In June a con-ference attended by the members of these groupsand also by many other members of the Commit-tee, was held in Cambridge, Massachusetts, andthe matters to be considered by us and embodiedin this Report were thoroughly discussed. Duringthe summer and autumn the Reporters, with theaid of suggestions from the Critics, gave elabor-ate consideration to the scope and proper organiza-tion of a permanent agency for the improvement of thelaw and to the work which it should first carry on, andthey then submitted to us the results of their delibera-tions. The Report which we here make to a represent-ative gathering of the American bar is the result ofa conference between those who have given much oftheir time in the past six months to a consideration ofevery detail of the important subject with which itdeals, and other members of the Committee.

(B) GENERAL CHARACTER OF THE WORK OFANY ORGANIZATION ESTABLISHED BY LAW-YERS FOR THE IMPROVEMENT OF THE LAW.

An association organized to improve the law mightconceivably busy itself with reforms as various as theactivities of man. The organization we have in view,however, is to be an organization founded by the Amer-ican bar. It will be created in response to the growingfeeling that lawyers have a distinct public function toperform in relation to the improvement of the law andits administration. This function is necessarily con-fined to work for which they are qualified by trainingand experience. The fact that a man is a lawyer doesnot make him an expert on the tariff, or on the properorganization of city government, or enable him to speakwith authority on hundreds of other questions of exist-ing or proposed law debated on public platforms and inlegislative assemblies. It is therefore important to acorrect understanding of the objects we have in viewand vital to the permanent usefulness of the proposedorganization that we regard its activities as restrictedto improvements in existing law and administration inrelation to those subjects of which the legal professionhas expert knowledge.

It is the province of the people and of legislativebodies, through constitutions and statutes, to expressthe political, economic and social policies of the nation,of its states, and of smaller communities. It is the prov-ince of lawyers to suggest, construct and criticize theinstruments by which these policies are effectuated.The proposed organization should concern itself withsuch matters as the form in which public law should beexpressed the details of private law, procedure or theadministration of law, and judicial organization. Itshould not promote or obstruct political, social or eco-

5

nomic changes. In order to ascertain what its workshould be we have examined the defects in our law,rather than those merits of which the legal professionis justly proud.

Even as thus restricted the proposed organizationis sufficiently wide in its scope to require those whoadvise its establishment to point out at least one spe-cific work of importance which the organization couldundertake on its foundation, the way in which thatwork should be carried on and the results which mayreasonably be anticipated.

(C) TWO CHIEF DEFECTS IN AMERICAN LAW.

Two chief defects in American law are its uncer-tainty and its complexity. These defects cause uselesslitigation, prevent resort to the courts to enforce justrights, make it often impossible to advise persons oftheir rights, and when litigation is begun, create delayand expense.

When the law is doubtful most persons are inclinedto adopt the view most favorable to their own interests;and many are willing if necessary to test the matter incourt while those willing to overreach their neighborsare encouraged to delay performing their obligationsuntil some court has passed on all the novel legal the-ories which skilled ingenuity can invent to show thatthey need not be performed. In either case litigation iscarried on, which but for the law's uncertainty wouldbe avoided. Again, the present degree of uncertaintyin many parts of the law tends to create the feelingthat the outcome of all court proceedings is uncertainno matter how just the claim, the result being thatmany whose legal rights are clear indirectly encouragea failure of justice by compromising with opponentswho are conscious of the lack of merit of their owncontentions.

Furthermore, injuries caused by uncertainty in thelaw are not confined to situations in which contro-versies have arisen so that rights claimed must beeither compromised or referred to the courts for theirdecision. Though one function of law is to providerules by which disputes may be settled, its otherequally important function is to provide rules of action.Because of the existing uncertainty in the law thosewho turn to it for guidance in conduct often find that itspeaks with a doubtful voice. For example, the lawyerwho assists in the combination of commercial enter-

prises, or the lawyer who draws a will with provisionssuggestive of the rule against perpetuities, will oftenfind that he cannot positively inform his clients of thelegal consequences of their acts.

The same bad effects, though in a less degree,result from the law's complexity. Besides which, com-plex law tends to make the administration of justice agame in which knowledge and skill are more importantfor obtaining victory than a just cause.

The time consumed by the courts in disposing ofcases is an obvious fact which all persons may note andcriticise. Furthermore, everyone realizes that long-drawn-out litigation is, on account of the expense, agreater hardship on those of' relatively small meansthan on the litigant with a long purse. It is thereforenatural that the delays of the law rather than its uncer-tainties or complexities is the defect on which thosewho criticise the administration of justice usually laystress; and yet, the most of these delays are due to un-certainties and complexities.

Perhaps, however, the most serious result of thesedefects is that they create a lack of respect for law.Their effect is the same as the effect of clear, certainbut unjust law, and for the same reason; law to per-form its functions must be adapted to the needs of life,and no such need was ever satisfied by uncertain andcomplex rules. Lack of respect for law, whether it hasits origin in the law's uncertainty or in the injusticeof its provisions, undermines the moral fibre ofthe community. In itself it becomes a cause ofanti-social conduct; the rich are more apt to use theirwealth to oppress; the business man is more apt tocheat; those in immediate want are more apt to steal.In our opinion the most important task that the bar canundertake is to reduce the amount of the uncertaintyand complexity of the law. It is essential if an adequate

administration of justice is to be had that lawyersawaken to the extent to which the law should be and maybe simplified and clarified.

At the outset we realized that it was useless toattempt to come to any final conclusion in regard tothe right way to reduce the present uncertainty andcomplexity of our law until we had made a thoroughanalysis of the principal forces now operating to makeour law more or less certain or more or less complex.The specific recommendations made in this Report arethe result of this analysis which is set forth in Part II,"The Law's Uncertainty and Complexity." (Itfra, p.66.).

Our investigation shows that among the causes ofthe law's uncertainty are: lack of agreement amongthe members of the legal profession on the fundamentalprinciples of the common law, lack of precision in theuse of legal terms, conflicting and badly drawn statu-tory provisions, attempts to distinguish between twocases where the facts present no distinction in the legalprinciple applicable, the great volume of recorded de-cisions, the ignorance of judges and lawyers and thenumber and nature of novel legal cases. We also findthat among the causes of complexity are, the complexityof the conditions of life, the lack of systematic develop-ment of the law, and the unnecessary multiplication ofadministrative provisions.

All these causes of the law's uncertainty would con-tinue to exist were the Federal Constitution repealedand the United States made one state. The fact, how-ever, that the nation is composed of forty-eight states,each of which as well as the Federal Government is anindependent source of law, means that the law onany subject in any one jurisdiction may differ from thelaw of one or more or all of the other jurisdictions.These variations in law are themselves a potent cause

of uncertainty and complexity, and because of this andfor other reasons do much injury, not only where trans-actions are carried on in two or more states, but alsowhere transactions are carried on wholly within onestate.

Any practical plan devised and carried out by law-yers to promote certainty and simplicity in the lawmust meet those conditions causing uncertainty andcomplexity which it is possible for the profession tomodify or eliminate. It is manifest that some of thecauses are beyond the power of the bar to remedy. Thenumber and nature of novel legal questions, and thosedifferences in the law of different states due to differ-ences in economic or social conditions, are entirely out-side the control of the bar. Furthermore, the greatvolume of the annual increase to the already overwhelm-ing mass of reported cases, which is another cause ofthe law's uncertainty, cannot be directly checked by anyaction which may be taken by the profession. As law-yers, our instinct to regard as an authority the priordecision of any court on a matter pertinent to the caseunder consideration is too strong to be arbitrarilylimited to the decisions of particular courts orto the particular decisions of any one or more courts.Should only a few selected cases appear in the officiallyprinted reports, the enterprise of private publisherswould soon result in the printing of "Cases Omittedfrom the Official Reports," and consequently in theircontinued citation and use by lawyers and judges.

On the other hand, many causes of the existing un-certainty and complexity are more or less within thepower of the legal profession to control by intelligentunited action. Bar associations have done and are nowdoing much to improve legal education and therebycreate conditions which will tend to reduce one cause of

the law's uncertainty-the ignorance of judges and law-yers.

Badly drawn statutory provisions and the unneces-sary multiplication of administrative provisions setforth in statutes are, as stated, causes of uncertaintyand complexity. The wisdom of the purpose which thesltbstantive provisions of the statute law are intendedto effect is beyond the province or the power of the pro-fession. So, too, the means adopted to attain an end isalso often largely a question of public policy. On theother hand, not only the principles of legislative drafts-manship but also the administrative details of manystatutes, especially the provisions for the enforcementof regulatory statutes, are matters concerning whichthe public have a right to secure from the bar an in-formed opinion. Again, the procedural law is in greatpart expressed in statutes and rules of court, and thisfield of law, in so far as it applies to methods for thedetermination of rights and duties, is a subject on whichthe people have a right to expect from the professior.more than an informed opinion; they have a right to effi-cient direction.

Finally, the more detailed study of the subject inPart II shows that lack of agreement among lawyersconcerning the fundamental principles of the commonlaw is the most potent cause of uncertainty. The badeffect of this lack of agreement is not confined to creat-ing uncertainty in the law of each state. To it is duemuch of the unnecessary and harmful variation in thelaw of the different states. Closely interwoven withthis cause is the lack of precision in the use of legalterms. Fortunately these two causes of uncertaintyand complexity are precisely those over which the legalprofession has the greatest control. The people throughthe legislatures are theoretically responsible for the un-certainties and complications of statutory enactments.

The common law and its terminology, however, havebeen developed solely by lawyers. To say that the sys-tem of developing and applying law is primarily respon-sible for the lack of agreement on legal principles andthe lack of precision in the use of legal terms does notexcuse the profession which through the centuries ofEnglish history has evolved the system with all its greatmerits and also with all its defects. As the common lawhas been developed under the guidance of the legal pro-fession, that profession has the power and the dutyto reduce its principal defects. At present chief amongthem is this lack of agreement among lawyers con-cerning the principles of the law and lack of precisionin the use of legal terms. The fact that lawyers haveso far failed to appreciate the extent of the resultingevil or to recognize the responsibility of the professionto try to improve conditions is the sole reason that to-day these defects loom so large.

(D) NEED FOR A RESTATEMENT OF THE LAW.

The American legal encyclopedias summarize the

decisions of the courts, and to a limited extent the stat-utes, in such manner as usually to enable the lawyer to

learn without the necessity of consulting further au-thority the simple and certain matters of the law..

On single branches of the law, as corporations,property, torts, there is also a large number of books,

the object of which is to do for one topic what the ency-

clopedia undertakes somewhat summarily to do for all.These treatises and text-books vary in excellence. Themajority are poor, but there are some which are wellwritten, and from which a full and accurate knowledgeof the law may be obtained.

The law encyclopedia, being a collection of treatiseswritten by different persons, also varies greatly fromtopic to topic, both as to the completeness and accuracywith which the authorities are cited and, as to the skillwith which the law is analyzed and stated. It is not, andfrom the very nature of its objects and uses should notbe either critical or constructive. While properly call-ing the reader's attention to direct conflicts betweencases, especially where the courts making the decisionshave expressly recognized the conflicts, the object of thework is not to point out conflicts and uncertaintiesthat do not lie on the surface and to suggest solutions,or to make a critical analysis of the law, or to enterupon a learned discussion of what is or ought to be thelaw. What is true concerning the legal encyclopediais also very largely true in regard to most Ameri-can legal treatises. The author's point of approachis usually that of a photographer. Tradition as to

the kind of law-book that is useful leads him largelyto confine himself to matters that have been a

subject of litigation. His end is to place beforethe reader the law as announced by the courts.Even a statute which affects his subject, if it has notbeen discussed and interpreted by the courts, is givenslight, if any, consideration. It would not be correctto say that the modern American law book never con-tains any critical or even constructive features; but itis correct to say that such features are almost entirelyabsent from most of our legal treatises and are almostnever the author's principal object. The fact thatamong our modern law-books there are only a fewprominent exceptions to this statement proves that it isfor all practical purposes accurate.

One reason for the absence of critical and con-structive features from the law treaitise that citesall the decisions is the great volume of case law. Legalauthors of the requisite ability are rare who at oncehave the time and the patience to collect, examine andarrange thousands of decisions and, when this labor isaccomplished, have left sufficient energy to do high-class analytical and constructive legal work. Indeed themere task of collecting and examining the material ona legal topic of any scope is rapidly becoming toogreat for any one person, no matter how great hispatience and his capacity for work; while even intopics of comparatively narrow scope, the necessaryexpenditure for typewriting and secretarial assistanceis so great as usually to eliminate the probability offinancial return. And yet our examination of the causesof the present uncertainty of the law shows conclusivelythe need of a restatement of the law that will have anauthority much greater than that now accorded to anyexisting encyclopedia or treatise. We are convincedtherefore that the specific work which any organizationcreated by the legal profession to improve the lawshould undertake on its formation is the production ofsuch a "Restatement of the Law."

We speak of the work which the organizationshould undertake as a restatement; its object shouldnot only be to help make certain much that is now un-certain and to simplify unnecessary complexities, butalso to promote those changes which will tend betterto adapt the laws to the needs of life. The characterof the restatement which we have in mind can be bestdescribed by saying that it should be at once analytical,critical and constructive.

The tatement must be analytical because thereshould be a division of topics based on a definite classi-fication of the law the result of thorough study by agroup composed of persons qualified by their studiesand their intellectual attainments. Each topic alsoshould be treated analytically, not historically. Thosewho state the law must, of course, do so with full under-standing of its development, but the primary object ofthe restatement is to set forth the law, not to give anaccount of its growth.

The restatement should be critical, because it mustbe more than a collection and comparison of statutesand decisions, more than an improved encyclopedia oflaw, more than an exposition of the existing law,even though such exposition were an accurate photo-graph of all the law's existing certainties and uncer-tainties. There should be a thorough examinationof legal theory. The reason for the law as it is shouldbe set forth, or where it is uncertain, the reasons insupport of each suggested solution of the problemshould be carefully considered.

The restatement should be constructive. In thefirst place, while necessarily largely based on the twoofficial sources of the law, statutes and decisions, itshould not be confined to examining and setting forththe law applicable to those situations which have beenthe subject of court action or statutory regulation, but

should also take account of situations not yet discussedby courts or dealt with by legislatures but which arelikely to cause litigation in the future.

Again, where the law is uncertain or where differ-ences in the law of different jurisdictions exist not dueto differences in economic and social conditions, the re-statement, while setting forth the existing uncertainty,should make clear what is believed to be the proper ruleof law. The degree of existing uncertainty in the lawwould not necessarily be reduced by a mere explanationof rival legal theories. Indeed, a restatement whichconfined itself to such an explanation would reducethe degree of existing uncertainty only in those in-stances where but one line of decisions was supportedby reasons worthy of consideration. Where the uncer-tainty is due, as it often is, to the existence of situationspresenting legal problems on the proper solution ofwhich trained lawyers may differ, the courts can best behelped by support given to one definite answer to theproblem.

Furthermore, there can be little doubt that the lawis not always well adapted to promote what the prepon-derating thought of the community regards as the needsof life. The limitation on the character of any ref orma-tion of the law by an organization formed to carry outthe public obligation of the legal profession to improvethe law is reasonably definite. Changes in the law whichare, or which would, if proposed, become a matter ofgeneral public concern and discussion should not beconsidered, much less set forth, in any restatement ofthe law such as we have in mind. Changes which donot fall under the ban of this limitation, and which willcarry out more efficiently ends generally accepted asdesirable are within the province of the restatement tosuggest.

The limitation just stated would exclude sugges-

tions of -changes in governmental organization, ex-cept possible changes in the details of court or-ganization. It would also bar the suggestion ofany change in the law pertaining to taxation andother fiscal matters and matters connected with gov-ernmental administrative policy, as well as advocacyof novel social legislation, such as old age or sicknesspensions, or a method of improving the relations be-tween capital and labor, or of protecting the public fromindustrial controversies by the establishment of arbi-tration tribunals.

When, however, a social or industrial or any otherpolicy has been embodied in the law, and also has beenso far generally accepted as to be no longer a subjectof public controversy, then the improvement of the lawin relation thereto may not be beyond the province ofthe restatement. Thus the system of employees' com-pensation for industrial accidents, or the system ofregulating by commissions the rates and service ofpublic utilities, having become a part of the set-tled policy of our national and state governments, mod-ifications in the substantive law or in the procedure re-lating thereto may be no more beyond the province ofthe restatement than would be proposals affecting thelaw of real property or the admissibility of evidence inan action for damages due to an alleged trespass.

In view of the limitation just suggested, thechanges proposed would be either in the direction ofsimplifying the law where it is unnecessarily complexor in the direction of the better adaptation of the de-tails of the law to the accomplishment of ends generallyadmitted to be desirable. Thus in the law of property,especially as the result of distinctions in the rules gov-erning real and personal property, there are complica-tions which have no present justification in existingconditions; and likewise in the law of evidence there are

rules of exclusion which are perhaps no longer applica-ble to the circumstances surrounding a modern trial.

Attempts better to adapt the details of the law tothe accomplishment of ends generally admitted to bedesirable may often involve changes in the procedurallaw. Rules of procedure are designed for the mostpart to secure as prompt administration of justice as iscompatible with a real consideration of the questionspresented. Any restatement of a topic of the procedurallaw which does not take into consideration whetherits rules accomplish the object for which they existwould degenerate into a mere text-book of present prac-tices. The legal profession in connection with the re-medial side of the law has duties beyond the mere writ-ing of text-books. The public may rightly look to us notonly for suggestion in minor details, but for active or-ganized work to establish and maintain the most effi-cient system of remedial law which we can devise. Anyrestatement in this field which did not seek improve-ment based on careful observation of the operation ofexisting methods, would therefore not be worthy of theeffort of an organization created to fulfill the obligationof the legal profession to improve the law.

Possible changes in the law, however, designed toadapt its details to the accomplishment of ends gener-ally admitted to be desirable, are not necessarily con-fined to the procedural law. In drafting the uniform com-mercial laws the Commissioners on Uniform StateLawshave usually found in connection with each act that cer-tain rules of law generally applied in all the states arenot considered desirable by those primarily affected.Though the commissioners are avowedly primarily en-gaged in expressing the law as it is, some of the bestresults of the statutes they have drafted have comefrom modifications of existing and generally acceptedrules of law, made at the suggestion of commercial and

other bodies whose members have an expert knowledgeof the things that need correction. The attitude of thecommissioners towards such changes has been one ofmarked conservatism, coupled however with a willing-ness on clear proof of its advisability to suggest whatis in effect a, change in existing law. A similar attitudeshould be taken by those charged with making the re-statement of the law we have in view.

The restatement here described, if adequately done,will do more to improve the law than any other thingthe legal profession can undertake. It will operate toproduce agreement on the fundamental principles of thecommon law, give precision to use of legal terms, andmake the law more uniform throughout the country.Such a restatement will also effect changes in the law,which it is proper for an organization of lawyers to pro-mote and which will make the law better adapted to thoneeds of life.

(E) FORM OF THE RESTATEMENT.

Though there necessarily will be minor variationsin the manner of presentation of different parts of therestatement due to the special exigencies of particulartopics, general uniformity of type throughout the re-statement is important.

The profession would find great difficulty in the useof the publications of the organization if each topic wastreated in a different manner. Again radical differ-ences in form would rightly be taken to indicate a lackof agreement among those preparing the restatement asto its objects.

As the restatement will be the work of a number ofpersons all fundamental questions of form must be de-termined before the work on any topic is begun. Thesequestions of form are of the first importance. The formadopted should reflect the objects of the restatement,and if it does so will materially aid the attainment ofthose objects.

The chief characteristic of the form of presentationshould be the separation by typographical or other de-vice of the statement of the principles of law from theanalysis of the legal problems involved, the statementof the present condition of the law and the reasons insupport of the principles as stated.

The statement of principles should be made withthe care and precision of a well-drawn statute, thoughit will not be necessary and may often not be advisableto adopt language appropriate for statutory enactment.The adoption of a statutory form might be understoodto imply a lack of flexibility in the application of theprinciple, a result which is not intended.

This separation of the statement of the principlesof law from the discussion of legal problems, authori-I ies and reasons, lends itself to the constructive objects

of the work far better than that mixture of statementof present law, historical description and discussion oflegal theory which is characteristic of the law treatise.It is essential that the attitude of mind of those doingthe work shall not be that of those who are writing atreatise solely based on the existing decisions of thecourts and some knowledge of the statutes. The mentalattitude should be more like that of those who desire toexpress the law in statutory form. Even though thosewho draft such a statement may not be doing more thanexpress the existing law as found in the decisions andscattered statutes, they think primarily of the topic, andtherefore deal, as we have pointed out the restatementshould deal, with situations that have not as yet beenpassed on by the court or made the subject of statutoryenactment. Again, a group of persons primarily ab-.sorbed in setting forth a complete body of principlesare perhaps more apt to perceive possible improve-ments. Each change, however, before being suggested,must pass through the test of precise statement. Thisnecessity for precise statement will tend to make thewriters give careful exAmination to the effect of theproposed change in view of the law as set forth in otherrelated parts of the restatement. We do not intend toimply that the treatise form of restatement precludesthe possibility of care rather that the separation of thestatement of principles from the body of the accom-panying analytical and expository treatise is more aptto impel its exercise.

The statement of principles should be much morecomplete than that found in European continentalcodes. The common law student of foreign codes is im-pressed with the fact that the statements of law arefor the most part expressed in such general terms thatthe court, in applying the principles without other con-trol than the code has a much wider discretion than the

judges of our own courts, who are usually guided in themost minute details by former decisions in cases pre-senting almost every phase of the case before them.The difference between the position of the continentalEuropean court and that of the American court in de-termining a case is that the former is bound by everystatement made in the code, but these statements are ex-pressed in such general language that the court haswide discretion in their application; the Americancourt, on the other hand, though always in the posi-tion of being able to change and modify the commonlaw, practically, because of the detail in which the lawis set forth in prior decisions and its respect for suchprecedent, has usually a far narrower field for the ex-ercise of discretion. We believe any restatement of ourlaw to be of practical use should follow this characteris-tic of our law, and that therefore the principles of lawshould be set forth with a fullness made possible by thecare with which rules pertaining to the application ofmore general principles have been considered in the de-cisions of our courts.

As intimated, the statement of principles should beaccompanied by a thorough discussion of legal theory.Principles cannot be properly applied without fullknowledge of the legal theories on which they are based.While this discussion of legal theory should be separatefrom the statement of principles, to refer to it as notesor annotations will convey the erroneous impressionthat the discussion intended is a mere explanation orexpansion of the principles, rather than what we believeit should be-a thorough and scientific discussion ofthe legal theories underlying the principles made in thelight of a full knowledge of the authorities.

Finally, the work as a whole must actually be doneand show on its face that it has been done with a thor-ough examination and careful consideration of the

present sources of the law. This means that the workshould contain a complete citation of authorities, de-cisions, treatises and articles. The legal profession willnever have confidence in the result unless those respon-sible for the work give this tangible proof of care andthereby also show that they know and have set forthany differences between the law expressed in the state-ment of principles and that found in the decisions of thecourts in each State considered separately. In view ofthe present great volume of the sources of Americanlaw this examination and setting forth of authoritieswill entail much labor and materially affect the detailsof the organization necessary to carry on the work. If,however, the work is to be constructive respect must beshown to the sound instinct of the legal profession todistrust any statement of what is or what should be thelaw unless the statement is based on a careful study ofthe record of courts which administer justice, not insupposititious, but in real cases.

We here also desire to call attention to the im-.portance of expressing the restatement in clear andsimple English, avoiding so far as possible, the use oftechnical and unusual terms. The restatement shouldbe understandable by an intelligent, educated personwho is not a trained lawyer. This, of course, does notimply that any restatement would enable a man to actas his own lawyer or that the need of trained lawyerswould be diminished to any considerable extent.

(F) LEGISLATIVE ENACTMENT OF THE RE-STATEMENT AS A CODE OF LAW NOTDESIRABLE.

From what has been said in regard to the form ofthe restatement it is clear that we do not look forwardto the principles of law therein set forth being adoptedas a code.

Two features distinguish the common law fromstatute and code. The first of these features is its flexi-bility. Where the law has been made statutory and thestatute covers the facts of a case presented to the court,the court has no discretion; the judges must apply thestatute even though they feel that the rule of law statedin the statute as applied to the facts does a real injus-tice. Where, however, the same statement of law is theclear result of -prior decisions, but has not been madepart of the statutory law, if the members of the courtfeel that the application of the law as found in priorcases will produce injustice, they frequently announcea modification or exception to the universality of thepreviously accepted statement of law; the modificationor exception being based on those facts which made areal difference between the case before them and the or-dinary case in which the rule of law as previously statedis applied. The second feature of the common law andone which we have just explained is the greater fullnesswith which it is possible by an examination of the de-cisions of the courts to express the law.

If the "principles" in the restatement of the lawwere made with a view to their adoption by legislaturesas a formal statutory codification of the law, one orother of these two distinctive features of the commonlaw, its flexibility or its fullness of detail, would haveto be sacrificed. We have already stated our belief thatthe principles of law should be set forth with a fullness

made possible by decisions of the courts. We fear thatif the law stated in this detail were given the rigidityof a statute, injustice would result in many cases pre-senting unforeseen facts.

If the principles of law set forth in the restatementare not to be adopted as a formal code it is neverthe-less not impossible that they may be adopted by statelegislatures with the proviso that they shall have theforce of principles enunciated as the basis of the de-,cisions of the highest court of the state, the courtshaving power to declare modifications and exceptions.It has been suggested that such action on the part of astate legislature would at once give an authority to therestatement which it otherwise would not possess, andat the same time would not fetter the courts as would aformal legislative code; and furthermore, that thecourts would have greater freedom in adoptingthe rules laid down in the restatement, and at thesame time would be free to deal with those caseswhich inevitably will arise wherein the rigid ap-plication of the principles set forth in the restate-ment would result in injustice. The possibilitythat the proposed restatement of the law may receivequasi statutory sanction, either in whole or in part, asa "guide and aid" to the courts is one that we shouldkeep before our minds while the work is in progress asa possible outcome of our labors. The suggestion is atleast an interesting one, though at this stage of theproject we are not required to commit ourselves toan approval of it. The important thing now isso to plan the work that the restatement from its in-ception shall be recognized as a work of great publicimportance for the execution of which the Americanlegal profession as represented by its leaders on thebench, in practice, and in the schools, is responsible.The way in which these things may be accomplished isthe subject of later sections of this Report.

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If the organization which we suggest can be formedand supported there is reasonable assurance thatthe restatement, even though it may not be formallyadopted by legislatures as a guide to the courts, willbe given by courts not already committed to a contraryrule approximately such authority as is now accordeda prior decision of the highest court of the jurisdiction,and therefore that its effect in correcting existing un-certainties and otherwise improving the law will bevery great.

(G) EXTENT TO WHICH LEGISLATIVE ACTION

WILL BE NECESSARY TO CARRY OUT THEPURPOSES OF THE RESTATEMENT.

The principles of law set forth in the restatementwill not include deformities, but will eliminate many un-certainties of the existing law, and make improvementswhich will further the administration of justice.

Where the law is uncertain the courts can adoptthe solution suggested in the restatement without wait-ing for statutory authority. Where the statement ofthe law set forth is against the weight of authority inmost of the states, but the matter has not been the sub-ject of a prior decision by the courts in some one ormore of the states, the courts in these jurisdictions, like-wise without waiting for any legislative authority, mayfollow the law as set forth in the restatement. A some-what different situation will arise in any jurisdictionwhere the principle set forth in the restatement isclearly contrary to previous decisions of the courts ofthat jurisdiction. Whether in such a situation the courtswill, without legislative action, follow the law as sug-gested in the restatement rather than the law as em-bodied in their own prior decisions will depend uponthe particular circumstances of each case. Where thecases opposed to the rule laid down in the restatementare numerous, and especially where some of the deci-sions are of long standing and the rule suggested in therestatement is not found in any prior decision, thecourts will be likely to take the position that, thoughthe rule as stated in the case may be subject to adversecriticism it has become so far a part of the accepted lawthat it can now be changed only by legislative action.This legislative action may be the adoption as a statuteof that part of the statement of principles embodyingthe proposed change in the law. As already explained,

however, it is possible for the legislature, instead ofgiving the change the rigidity of a statute, to adopt thelaw as set forth in the restatement as a guide to thecourts. Such action would warrant the court adoptingthe law as set forth in the restatement even thougl therule there stated was admittedly contra to the prior de-cisions of the court.

Where the change proposed in the restatement isa change in the present statute law, the mere adop-tion of the principles set forth in the restatement as aguide to the courts would not warrant the courts dis-regarding the statute. Furthermore there are topicsof our law where the very rigidity resulting from theembodiment of the law in a legislative enactment isa distinct gain. If, for instance, there is little or nochange in the essential conditions which make the lawpertaining to a particular topic, and if in many situa-tions constantly arising it is more important that thelaw should be certain than that one rule rather thananother should be adopted, then it is probable thatthe statement of principles dealing with the topicshould be made a part of the statute law. Thus theaction of the commissioners on uniform state laws inpresenting to the state legislatures statutes to codifythe law of sales, the laws pertaining to commercialpaper and the law pertaining to some of our businessassociations is justified not only because uniform stat-utes on these subjects correct the unfortunate effect ofvarying commercial law as between the differentstates, but also because the law on these topics, pre-senting as they do many of the characteristics just re-ferred to, may with advantage be the subject of legis-lative enactment.

Outside, however, of those changes which of ne-cessity require legislative action and of those legaltopics which, because of their peculiar characteristics,

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are perhaps best embodied in a statute, lie the greatfields of the common law and that common law of thestatutes which consists of the rules for the applicationof ancient and generally adopted statutes. For thegreater portion of these fields the statement of prin-ciples, though made with the care and precision of awell-drawn statute, should be made without thoughtof its adoption by state legislatures or Congress as acode each provision of which was in all cases bindingon the courts. As we have said, we are opposed toany attempt at the general codification of the law inthe usual sense of the word.

(H) NATURE OF THE ORGANIZATION UNDER-TAKING THE RESTATEMENT OF THE LAW.

(1) The Restatement Must be Generally Recognized as a

Work Carried on by the Profession in Fulfillment of aPublic Duty.

A mere academic restatement of the law, whateverits form, will not be sufficient for the undertaking. Tofulfill its objects the restatement must have au-thority greater than that now accorded to any legaltreatise, an authority more nearly on a par with thataccorded the decisions of the courts. To developamong judges and lawyers the feeling that the restate-ment has this high degree of authority the work ofmaking the restatement must from its inception begenerally recognized as a work carried on by the legalprofession in fulfillment of an obligation to the Ameri-can people, to promote the certainty and simplicity ofthe law, and its adaptation to the needs of life. If thisfeeling be developed to any considerable degree, it willnot only give to the bench and the bar a sense of pro-.fessional responsibility for the character of the workwhich will go far to insure its excellence, but it will alsosecure for the work as it is published the position nec-essary to enable it to accomplish the purposes of itscreation.

(2) No Existing Legal Organization Adapted to the Work

of Making the Restatement.

In order that the responsibility of the legal pro-fession for the restatement of the law may be generallyrecognized, the organization undertaking must ade-quately represent it.

Today there is no association to which all judgesand lawyers belong, and even if there were, the nature

of its organization might not be adapted to the carry-ing on of a scholarly and constructive work. There are,however, a number of legal organizations, that is, asso-ciations composed of lawyers and organized to do someone or more things in connection with law or the legalprofession. Thus the courts may in this sense be con-sidered legal organizations created by law for specificand vitally important legal purposes; there are numer-ous bar associations, all of which are at present volun-tary associations; there are law school faculties orgroups of persons employed, usually by university cor-porations, to teach the law; and finally, there are a fewsocieties, each organized to promote some special objector objects which for lack of a better general designa-tion we may call learned legal societies, though theydiffer from the ordinary bar association principally inthat their objects do not embrace all the professionalinterests of the bar of any court or group of courts.

As stated, the courts are organized by the govern-ment for specific legal purposes. Each court is a sep-arate organization. Neither the Federal nor any stategovernment has as yet created for any purpose an asso-ciation composed of all or a selected number of thejudges of their respective courts. In a few instancesthe judges of certain courts, as the judges of the courtsof probate, or the judges of the minor courts in astate, have formed voluntary associations, and there isa judicial section of the American Bar Association,which like the other sections of that Association holdsseparate meetings during the period of the annualmeeting of the Association; but, as yet, none of theseorganizations has undertaken any large or seriouswork.

There are more than four hundred bar associationsin the United States, besides the American Bar As-sociation. In all but one state there are state bar

associations, and in all the states, county, and in thelarger cities, city bar associations. These are voluntaryassociations organized on the selective principle; thatis, while the right to practice in one or more designatedcourts may be a necessary qualification for membership,each association selects its own members. There areapproximately 125,000 lawyers in the United States.It is impossible to state with any accuracy the numberof lawyers who belong to one or more bar associations,as many of the county associations have the loosestpossible organization, but the following figures willshow that a majority of the lawyers of the country arenot members of the principal bar associations. TheAmerican Bar Association has between seventeen andeighteen thousand members or about 14 per cent. Ac-cording to the 1920 census, there were 18,473 lawyers inNew York State; 3271 of these, or about 18 per cent.,belonged to the State Bar Association. By the samecensus there were 1978 lawyers in Wisconsin, of whom766, or about 39 per cent., belonged to the State BarAssociation.

Each of these more than four hundred associa-tions is independently organized. Membership in anyone of them does not involve or depend upon member-ship in any other; neither is there any organic federa-tion among all or any group of them, except that on theinvitation of the American Bar Associations many ofthe state and some of the local associations send dele-gates to meetings of one of its sections known as theConference of Bar Association Delegates. The Ameri-can legal profession, therefore, has not as yet devel-oped any such powerful and representative organiza-tion as has the medical profession, where all the stateand county medical societies are federated in theAmerican Medical Society, which now has more thaneighty-five thousand members.

Although the matter has been recently under con-sideration in Ohio, Nebraska and other states, neitherthe United States nor any of the states has followedthe example of European continental countries by in-corporating all the members of the bar into a publiccorporation with definite obligations and definitepowers over its members.

There are about 140 law schools in the UnitedStates, with faculties of from two or three to fifteenmembers. In a large number of these schools, how-ever, all or nearly all the members of the faculty arejudges or lawyers engaged in practice. On the otherhand there are several schools which are real seats oflegal learning and in which practically all or at leastthe nucleus of the faculty devote their time to thework of teaching and legal research.

The leading law schools have united to form theAssociation. of American Law Schools, the primaryobject being to improve legal education in the UnitedStates. The other associations which would fall underour designation of learned legal societies, are. theNational Conference of Commissioners on UniformState Laws, the American Institute of Criminal Lawand Criminology, the American Society of Interna-tional Law, and the American Judicature Society.

These organizations are voluntary associations ex-cept the Conferences on Uniform State Laws. Thepurpose of the Conference is to promote uniformity inthe statute law of the states, that of the Institute ofCriminal Law and Criminology and that of the Amer-ican Society of International Law are indicated by theirtitle. The Association having the widest purpose isthe American Judicature Society, which is organizedto promote the efficient administration of justice, theterm "efficient administration of justice" being inter-preted to embrace all the adjective, though not the sub-stantive law.

These being the salient characteristics of the differ-

ent kinds of legal organizations, is any one of them

adapted to the work of making the proposed restate-ment of the law ? Certainly no court could do so with-out legislative sanction, and even if such sanctioncould be secured, of which there is little possibility,the work and responsibility entailed would seriously in-

terfere with the administration of justice. Besides, to

secure a satisfactory restatement of the law it shouldbe the product of the co-operation of those having thebackground of judicial experience with those who have

approached legal problems from other points of view.To throw the whole responsibility on the judges of anyone or of any number of courts seems impossible,but even if possible, would be most unwise.

Again, the work could not be undertaken by anystate or local bar association. The work is not for anyone state, but for all. Neither could it be undertakenby any existing learned legal society, except possiblythe Association of American Law Schools, as each ofthe others has been organized to promote particularpurposes, and none of these purposes is sufficientlywide to include such an undertaking as the general re-statement of the law.

,Could it be undertaken by the Association ofAmerican Law schools or by any one school?' As al-ready explained, our committee was founded as theresult of an effort on the part of the Associationof American Law Schools to devise ways for se-curing the co-operation of the courts, bar associa-tions, law schools and learned societies, in the establish-ment of an organization capable of making proposalsfor the improvement of the law, based on adequatescientific investigation and knowledge. We under-stand that one reason for the invitation was thebelief, general among the representatives of the

schools forming the association, that any restate-ment of the law to acquire the authority necessary to enable it to accomplish results of impor-tance, must be undertaken by an organization rep-resentative of all branches of the legal profession.In this we agree, and we also think that the same rea-son which would make it unwise to throw the wholeresponsibility for the restatement of the law on thejudges would make it unwise to throw the whole respon-sibility on the members of the faculties of the leadinglaw schools. While it is true that the work of restat-ing the law in the manner proposed could not be under-taken had it not been for the scholarly work alreadydone by members of law school faculties, and while itis also true that any organization undertaking the re-statement must depend on the law teacher for muchof the work involved; nevertheless, the restatement tobe thoroughly well done must be the result of collabora-tion of men of judicial experience and of men of inten-sive practical experience at the bar with those lawteachers whose work has led them to observe, studyand compare the operation of legal principles in manyjurisdictions and under varying conditions.

These reasons which would make it unwise to at-tempt to throw the whole responsibility for the produc-tion of the restatement on an Association representingthe leading law schools of the country, apply with evengreater force to any one law school, even though suchschool were conducted by a university of national repu-tation.

This leaves for consideration the American BaiAssociation. The membership of this association iswidely diffused. It represents the American legal pro-fession more nearly than any other association. In-deed, it is the only association which in any degreedoes so. As already indicated, however, it does not

represent the profession in the United States in thesense in which the American Medical Association rep-resents the medical profession. It does not representthe legal profession as organized in state and local barassociations, any more than as organized in courts, orin law school faculties.

Even, however, if the American Bar Associationwere an organization which united all state and local as-sociations in one body, it is at least doubtful whetherit would be equipped to direct such a constructive sci-entiflo juristic work as the proposed restatement ofthe law. The functions of a bar association should beas wide as the obligations, rights and interests of itsmembers as lawyers and judges. Yesterday the mem-bership may have been interested primarily in legaleducation, today it may be interested in the effectualdiscipline of delinquent members of the bar, and to-morrow in promoting or opposing some change inthe Federal or state constitutions or law. The boun-daries of the activities of bar associations arethus not clearly defined, and should not be. Theirmanagement should be and is democratic in thesense that their constitutions are so drawn as to enabletheir management to reflect changes in policy activelydesired by a majority of their members. On the otherhand, any organization which undertakes to build upyear after year a constructive restatement of the lawshould have a degree of permanency in its supervisorycontrol not characteristic of the American Bar Associa-tion and unsuited to its wide and vaTying purposes.

(3) The Organization Should Have a Definite ConnectionWith Existing Legal Organizations.

While it is thus apparent that no existing legalorganization has the characteristics necessary to under-take the proposed restatement of the law, and therefore

that a new organization must be created for the pur-pose, it is important that the organization which is tocarry on the work should have a connection with theseexisting legal organizations, and that in the sense to bepresently explained they should combine to create it andco-operate in directing it. If such connection and co-operation is not established, then the legal profession asnow organized would have no part in the undertaking,and it would be difficult if not impossible to develop anyfeeling of responsibility for the character of the work,or any real desire to use the result effectively when pub-lished.

With some minor, reservations in relation tocourts and law school faculties, the nature of exist-ing legal organizations makes a definite connection andco-operation between them and the new organizationsundertaking the restatement entirely feasible.

(4) The Organization to Make the Restatement of theLaw Should be Established by the RepresentativeGathering of the American Bar to Which This Reportis Submitted.In view of the constructive scientific work to be

carried on by the organization which shall undertaketo restate the law, the problem in connection with itsconstitution is to provide for an organization which willbe representative not only of the profession as a wholebut also of the existing legal organizations, and yet willhave that stability of management necessary success-fully to carry out a work of this character. Each ofthese elements is of vital importance.

At the first meeting of our Committee it was deter-mined that our Report should be submitted to a repre-sentative gathering of the American legal profession.The proper composition of such a representativegathering and the proper composition of the organiza-tion which is to undertake the restatement, depend onthe same considerations. The elements which may becombined to -make a gathering representative of thelegal profession are not only numerous but varying.Any one may be spared but the co-operation of most ofthe elements is essential.

It is manifest in view of the existing organizationor rather lack of organization of the profession, thatit is not practicable to give each member of the bacin the United States a right to vote for district dele-gate or delegates at large to such a gathering. Neitheris it practicable to ask existing legal organizations toelect delegates or to choose them by mail vote. Theymeet too seldom, and few if any have ever balloted bymail for any purpOse, while the* majority are too looselyorganized and have too little sense of responsibility.Even if it were feasible to'carry out such a plan, itwould give only a fraction of the profession rights, andthese at best would be theoretical.

Since, therefore, it is not practicable to give eventhe members of existing legal organizations a right tovote for one or more delegates we determined to makethe gathering to which our Report should be submittedrepresentative of the legal profession in the UnitedStates in the sense that each of those invited shouldbe a leader of the profession of the law either by rea-son of official position or of well established profes-sional standing. We have therefore asked to the meet-ing to which the Report is submitted the Chief Justiceof the United States and the Associate Justices of theSupreme Court, the senior Federal Judge of each ofthe Federal Circuit Courts of Appeals, the AttorneyGeneral and the Solicitor General of the United States,the Chief Justice of the highest court of each state,the president and the ex-presidents of The AmericanBar Association and the members of its executive com-mittee and general council, the president of each statebar association, the dean of each school belonging tothe Association of American Law Schools, the presi-dent of each of the learned legal societies referred toin this Report, the chairman or senior member of theCommissi6ners on Uniform State Laws in each State,the president of the National Conference of Commis-sioners on Uniform State Laws, and between one andtwo hundred other persons selected because of theirknowledge and high professional standing and theirknown interest in constructive work for the improve-ment of the law. If a judge, a president, or a deanis unable to attend it is expected that he will appointsome other member of his court, learned legal societyor law school faculty to represent him. ,Confident thatthe gathering thus secured represents the Americanlegal profession in a very real sense we recommendthat it establish the organization more particularly setforth in the next part of this Report.

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The suggested constitution of the proposed organi-zation has been framed with the two things in mindwhich we have here emphasized: First, that a represen-tative body of the American legal profession for the im-provement of the law can best be secured under existingconditions in the manner in which the members of thegathering to which this Report is being submitted havebeen secured; and second, that a high degree of per-manency in supervisory direction is necessary to makeit reasonably certain that the work undertaken will bewell done.

(1) CREATION AND CONSTITUTION OF THEAMERICAN LAW INSTITUTE.

We suggest that the organization shall be knownas "The American Law Institute," and that it shallbe composed of two bodies, members and council.

We recommend that those who have been invited

to form the representative gathering of the Americanlegal profession to which this Report is submittedform the Institute, constitute themselves the first mem-bers, adopt a Constitution embodying the provisionshere suggested, and elect twenty-one persons to serveas the first councilors.

The constitution should provide that the membersof the council shall by lot divide themselves into threeclasses; seven to serve for three years, seven for sixyears and seven for nine years. The council should havefull power of management; except that any legal workdone under the direction of the Institute, before beingpublished as an official publication of the Institute,should be submitted to a meeting of members, or to themembers for their several criticisms and expressionsof opinions, or both (see infra, page 52). The councilshould have the power to fill all vacancies in their ownnumber, and to elect all officers and also all new mem-bers of the Institute. They will, of course, apply fora charter of incorporation.

A matter vital to the future of the Institute is thepersonnel of the first council. On them will devolvethe duty of making detailed plans for the executionof a novel uidertaking of great difficulty. If the gath-ering to which this Report is submitted agrees with usthat such a restatement of the law as we have indicatedshould be undertaken by an American Law Institutefounded by them we have confidence in their abilityto select a board the personnel of which will be at

once recognized by the profession as adequate for thetask. When the members of the first council areselected full responsibility should be placed on themfor the future of the Institute, and their power shouldbe commensurate with this responsibility.

The constitution should state that the object of theInstitute is:

"To promote the clarification and simplifica-tion of the law and its better adaptation to socialneeds, to secure the better administration of jus-tice, and to encourage and carry on scholarly andscientific legal work."

The primary object of the Institute is to enable thelegal profession in America to carry out its public obli-gation to improve the law. The immediate as well asthe principal permanent work is a restatement ofthe law in such a manner as to promote its clarity,simplicity and adaptation to the needs of life. We sug-gest, however, adding to these objects "the encourage-ment and conduct of scientific legal work." The linebetween that research which has for its object sugges-tions for improvement in existing conditions, and thatwhich is designed to increase the sum of human knowl-edge cannot be drawn with accuracy.

The methods by which the work shall be carried onand its cost are matters with which the Council of theInstitute must deal, and as already indicated we do notbelieve that its discussion should be hampered by def-inite direction from the members, and certainly notfrom us. At the same time it may serve to bring outclearly our conception of the nature of the work forwhich the Institute would be created if we indicate:

(a) The topics of the law which we think the In-stitute may properly undertake to restate onits organization.

42

(b) The methods of work which should be adoptedto secure good results.

(c) The annual cost of carrying on an amount ofwork which will justify the establishment ofthe Institute.

(J) THE TOPICS WHICH THE INSTITUTE MAYFIRST UNDERTAKE TO RESTATE.

To regard the proposed restatement of the lawas a sort of improved legal encyclopedia, whichwill be produced in the space of a few years andcover the entire field of law, is totally to misconceive itscharacter. It is possible to write a legal encyclopediaor a series of legal treatises covering the entire field oflaw. Indeed the enterprise of modern publishershas already accomplished this result. But we de-sire that the work which we undertake shall notonly analyze the existing condition of the law and setforth the legal problems involved, but shall also setforth with the care and precision of a well drawn stat-ute those principles which will not only tend to clarifyand simplify the law but better adapt it to the needs oflife. It is not possible to forecast the time required tocover the entire law by such a work.

Furthermore, as the conditions of life are neverstatic, law, which is the expression of those conditions,to fulfill the functions of its existence must be a body ofrules continuously subject to modification and change.Long before it would be possible to complete a restate-ment of all the principal topics of the law, the topicsfirst completed might need in one direction expansion,in another modification, in another perhaps positivechange. As we conceive it, the work of the AmericanLaw Institute which we propose is not like that of thosewho build a house. There will never be a time whenthe work is done and its results labelled "A CompleteRestatement of the Law." The work of restating thelaw is rather like that of adapting a building to theever-changing needs of those who dwell therein. Sucha task, by the very definition of its object, is continu-ous.

Again, the necessity for such a restatement as wepropose varies with different topics. In some the needis great; in others the need is slight or perhaps does notexist. Therefore, even if it were possible of accomplish-ment, to start out with the idea that the proposed In-stitute should undertake a complete restatement of theentire law in a given number of years would be a mis-take.

The work which the Institute should first undertakemust obviously be work which is most worth doing. Itshould therefore discard from its earlier operationssuch subjects as are not suited for immediate treat-ment.

The unsuitability of a subject for immediate treat-ment may come from a variety of causes. Its inherentimportance may not be of the highest order. Or it maynot be in the power of the bar by a restatement, how-ever good, to attain desirable results. Such a subject isinternational law. Again, topics of the highest impor-tance have already recently been worked over. Thus theNational Conference of Commissioners on UniformState Laws has prepared statutes on various commer-cial subjects; for instance, negotiable instruments,sales and partnership. On other subjects we have ex-cellent modern treatises.

Not discarding any of these subjects as permanentlyoutside the scope of the Institute, it should we believetake up for immediate action other topics, which, be-cause of inherent difficulty and lack of adequate treat-ment by modern scholars, seem more in need of restate-ment.

With these principles of selection in mind our Re-porters and their advisors, referred to in the introduc-tion to this Report, have at our request given careful at-tention to the first work to be done by the Institute,and after full consideration they have recommendedconflict of laws (the entire subject if possible), torts

(dealing perhaps first with negligence) and businesscorporations. They believe that all of these subjectsare in great need of that clarification and improvementwhich it is possible for a restatement such as we havein mind to produce, while the character of the topics issufficiently diverse to raise most of the problems con-nected with a restatement of the substantive privatelaw. The recommendations of the reporters are basedby them upon the following considerations : "The greatconfusion existing in the subject of the conflict of lawshas already been ref erred to, and the importance of thesubject in view of our Federal system with its forty-eight states, each with its own law, cannot well be exag-gerated. (See infra, pages 92-94.) Torts is a subjectwhich has developed unsystematically and is thereforefull of the evil. of uncertainty. Negligence presents apart of the law of Torts wherein the over-elaborationof rules pertaining to what constitutes due care hasunnecessarily complicated the law and made a newemphasis on simple fundamental principles important.The major part of the law of business corporations isthe result of decisions made in the past fifty years.The importance of the subject is obvious. The presentuncertainty of the law pertaining to it is not so muchdue to conflicts in decisions and statutes as betweenstate and state, or to an over-elaboration of rules forthe application of fundamental principles, as it is to aconfusion and conflict in regard to the legal characterof the association and to real differences of opinion asto the correct statement of the fundamental principlesapplicable to the solution of the more difficult problemspresented." These and other important topics will,without doubt be given careful consideration by theCouncil of the Institute.

.Before any topic is undertaken, the Council shoulddetermine whether a complete analysis of the law andan agreed legal terminology should be adopted.

It is highly important that there should be no dupli-cation of work. Not only would this be wasteful, but itwould be quite possible that two restatements of thesame subject might not be entirely in accord with eachother. At the outset, therefore, some analyses of thelaw must be made with a view of determining the gen-eral scope of the principal topics and the precise scopeof the topics first taken up for restatement.

Furthermore, an important part of the work of theInstitute must be to secure precision in the use oflegal terms. No group working on a single topic of thelaw can accomplish this result. It might precisely de-fine the terms it uses in its work; but another groupworking simultaneously might adopt a different defini-tion of identical terms. For this reason some distinctbody must be charged with the general duty of de-termining the meaning and use of legal terms.

On the other hand we do not believe that the coun-cil will find that it is desirable to postpone the work ofrestating the law of any topic until a complete classifica-tion of the law and a complete legal terminology isadopted. It is not merely that such classification andterminology would necessarily take many years to pre-pare, though that in itself is a serious objection to thismethod of proceeding, because it would so far postponeany practical results as to make the establishment ofthe Institute improbable. The fundamental objection isthat a complete and satisfactory classification and term-inology can more certainly be produced as the result ofactual experience in the work of restating the differentsubjects. The danger of all classification pursued as anend in itself, is that when actual problems of classifica-tion arise, the classification fails to indicate a place forevery state of facts. A priori classification has also atendency to stress unimportant distinctions and inventstrange legal terms.

47

It is of course necessary to have from the starta general analysis of the law, and the part of suchanalysis which affects the topics first undertaken mustbe thoroughly thought out. So also, there are certaingenerally used legal terms which must be defined at theoutset. But it will be in accordance with the spiritunderlying the genius of our people if much of the out-line of the analysis of law and the creation of a completelegal terminology is the result of the gradual growth ofthe restatement itself.

The work on the topics which we have suggestedthat the Institute first undertake to restate can there-fore be begun on its organization without undue de-lay.

(K) METHOD OF WORK.

(1) The Experience of the National Conference of Com-missioners on Uniform State Laws.

The National Conference of Commissioners on Uni-form State Laws during the thirty years of itsexistence has drafted a large number of statutesmany of which now form important parts of the presentcommercial law in most of our states. The experienceof the commissioners, while confined to the preparationof Acts for presentation to legislatures for enactmentas part of the statutory law, is useful as indicating thestandards of care which should be employed in makingany important restatement of the law, whether such re-statement is or is not intended to be embodied in a stat-ute. Their experience indicates that the best resultsmay be anticipated when* the act has been prepared asthe result of:

(a) The reference of the subject to a committeecomposed of persons who have some specialknowledge of the subject. (It has not been al-ways possible for the Conference to do this, asamong the members of the Conference theremay not be a group, of experts on the subjectof a proposed act.)

(b) The selection of a draftsman or reporter whoafter conferences with the committee preparesand submits to them a draft.

(c) The revision of this 'tentative draft by thecommittee, the draftsman or reporter beingpresent and taking part in the discussion.

(d) The publication and wide distribution of thetentative draft among judges, lawyers andothers who are believed to have special knowl-edge of the subject, the draft being also sent toassociations which represent the business per

sons or other classes in the community espe-cially affected by the law. The object of thedistribution is to obtain suggestions and criti-cisms.

(e) The further amendment of the revised draft inthe light of the criticisms and suggestions re-ceived and the submission of the draft so fur-ther revised to the Conference.

(f) The discussion, adoption or amendment of thedraft section by section by the Conference, thedraftsman or reporter and of course the mem-bers of the committee being present and takingpart in the discussion.

(g) The return of the draft to the committee afteramendment by the Conference for re-examina-tion, republication, further general distribu-tion and discussion and a resubmission to theConference for a second detailed discussionand amendment section by section.

(h) A repetition of this process until the commis-sioners feel that the act may be published asan act which the Conference recommends thelegislhtures of the several states to adopt.

When the Conference began this work no memberhad any idea that the draft of a statement of the lawin a form suitable -for enactment into a statute wouldrequire the time and care which experience has sinceshown to be necessary. The restatement of the lawwhich we have in mind, while it will not be adopted bythe legislature as a code should, as already explained, beprepared with all the care of a properly drawn legisla-

tive enactment, and this necessity for care applies noto1ly to the restatement of principles but also to thatpart of the work which will undeitake to analyze theexisting conditions of the law and set forth the legalproblems involved.

The various steps taken by the Conference of Com-missioners embody the idea that an adequate statementof the law on any subject usually requires the combina.tion of three stages:

(a) The appointment of some one person who ismade primarily responsible for the production of a defi-nite draft.

(b) The submission of this draft to a group of ex-perts on the subject, the experts having authority tomake any change no matter how extensive.

(c) The submission by the experts of a statementof the law satisfactory to them to a larger body com-posed of judges, lawyers and law teachers, who takenas a whole represent wide and varied experience.

We agree that these three steps represent theprocess by which the restatement of at least thegreater part of the law, and especially the substan-tive law, should be made. The actual results will ofcourse not only depend on the method of work, butalso on the ability of the persons selected to do thework, on the time, and even more on the real atten-tion which is given to it. The defects of the work doneby the Conference of Commissioners-and in spite ofthe general excellence of their work there are defects-have not been due to lack of ability, or in recentyears to lack of a full realization of the necessity forexhaustive as well as wide and varied criticism beforefinal publication, but to a lack of means. This lack ofmeans has prevented the Conference from establishinga permanent central executive force charged with theduty of seeing that each work undertaken is being thor-"oughly done. It has also prevented the Conference frompaying for the services of any experts except the drafts-men or reporters, while the commissioners serve with-out pay, and even in some cases pay their own travelingexpenses in attending the meetings of the Conference.

The result of this lack of means is that the committeesmeet to discuss an act for a day, instead of for a week,two weeks or a month, and the Conference itself canonly meet for one week in each year.

The conception which we have of the way in whichthe work of restating the law in any subject should becarried on is, that the Council having determined thata restatement of the law of a given topic should bemade, should entrust its execution to a committee, thmembers of the committee being selected for their abil-ity and special knowledge of the subject; that report-ers should also be selected, who, under the direction ofthe committee, would be primarily responsible for theproduction of a preliminary draft; that the committeeshould secure the benefit of suggestions and criticismsby wide distribution of their preliminary and any sub-sequent tentative drafts, and submit the final result oftheir labors to the council; that before the final adop-tion of the work as a work of the Institute it should besubmitted to the members, the question of any furtherwork to be done by the committee of experts and thenecessity for subsequent resubmission to the largergroup depending on circumstances.

(2) Reporters and Committees of Experts.

Applying the ideas just expressed, if the Institutebeing established desires to undertake the three sub-jects suggested in the preceding section of this Reportit will be necessary for the council to select three com-mittees of experts, one on each subject, and also threereporters, with possibly one or more assistant report-ers. The size of a committee of experts will dependsomewhat on the subject and also somewhat on the num-ber of suitable persons available. We believe, how.ever, that experience will probably show that thesecommittees should be composed of at least five

but not more than ten persons. There should alsobe appointed a committee on the Classification of theLaw and Legal Terminology. We think that it will bean advantage if this committee is in part composed ofthose selected to act on the committees for the restate-ment of the law of torts, business corporations andconflict of laws.

As soon as a, reporter is chosen he should, underthe general direction of the committee for the topic, as-semble the authorities on the subject, and complete atentative draft of all or a part of the restatementin the form previously suggested. It will then bethe duty of the committee to discuss and amend thedraft, the reporter being always expected to carry outany amendments and directions adopted by the com-mittee and to submit further tentative drafts until thecommittee is satisfied with the work and ready to re-port it to the Council.

During this process the various tentative drafts asprepared by the committee should be printed and dis-tributed for suggestions and criticisms. Though thedistribution should not be confined to members of theInstitute each draft as printed should be sent to everymember.

(3) Criticism by Members.

It is important that the work of the experts, beforebeing adopted by the Institute, should be submittedto a group sufficiently large to insure its criticism fromthe background of varied experience, as well as to in-sure that wide and continued interest in the work bythe leaders of professional opinion in the differentparts of the country which is necessary if the desiredresults from the restatement are to be attained. There-fore, the Council on receiving the draft from the com-mittee of experts should submit it for full discussion,

either to a meeting of the members of the Institute, orto the members for their several criticisms and ex-pressions of opinion, or both.

(4) Director.

The reporters and experts will be drawn mainlyfrom the faculties of the law schools, though we regardit as most desirable that other branches of the pro-fession should also be represented on the committees.The reporter for a longer or shorter period should de-vote all or the main part of his time to his work, whilethe members of the committees should meet not merelyfor a day or two, but for two or three weeks at a time.But neither reporter nor expert, at least at first, will beas such a part of a permanent force, though a perma-nent force of able men giving all their time and energyto the work may be developed. Some central perma-nent executive force, however, is absolutely necessary ifthe work of restating the law or any other work under-taken by the Institute is to have a reasonableprospect of being well done. Whatever else thecentral executive force may consist of there should beat its head one person, who to distinguish him from thepresident of the Institute may be called direc-tor. The director should be appointed by the coun-cil and be responsible to it for the executionof its plans. The director should be much morethan an Executive Secretary. He should be a manof recognized professional standing. He should be ex-pected to formulate plans for the consideration of thecouncil and should be ex officio a member of each com-mittee of experts.

(5) Bureau of Research.In this Report we have emphasized more than once

the great volume of the recorded decisions. At the sametime we have also said that "the restatement must ac-

tually be done and show on its face that it has beendone with a full knowledge and careful considerationof the present sources of the law." Furthermore, instating our idea of the work, of the reporter appointedto prepare a preliminary draft of any topic for acommittee of experts we have stated that "he mustassemble the authorities on the subject." In some topicswhere the recorded cases are not very numerousthis work of collecting and arranging authorities maynot be beyond the power of the reporter to accomplishwith some clerical assistance in a reasonable time. Butto ask the reporter for such a topic as conflict of lawsor torts or business corporations to make any ex-haustive collection and arrangement of the recordedcases, not to speak of the statutes in such a subject asBusiness Corporations, would be to postpone for severalyears the completion for the committee of experts of thefirst preliminary draft by the reporter. Indeed if itwere not for the existing law encyclopedias, digestsand other aids in finding and arranging authorities thetask for most topics would be beyond the power of anyone person to accomplish, irrespective of the questionof time consumed. It is manifest therefore that somemethod must be devised to give needed assistance tothe reporters confronted, as in most topics they will beconfronted, by masses of authority.

The reporters will be selected because they alreadyknow a great deal concerning their topics. It may there-fore be presumed that they have already studied theleading decisions and many of the more important acts.Furthermore, we may assume that they have beforebeginning their work for the Institute more or lessdefinite ideas of the proper arrangement of their topics,know many of the uncertainties, complexities and otherdeficiencies of the present law, and have some idea ofthe lines along which a restatement intended to improve

the law should be drafted. We may also assumethat the members of the committees of experts will,as well as the reporters, possess a very consider-able fund of special knowledge concerning their respec-tive subjects. It will be for each committee therefore inconsultation with the reporter and the director to cometo a definite determination concerning the detail of themethod by which the work on the particular topic en-trusted to them should proceed and the kind of helpwhich it will be necessary for the reporter to have. Inthis connection the personal equation, more especiallyof the reporter, but also to some extent of the membersof the committee, must be taken into consideration, aswell as the nature of the topic and the extent of theauthorities. Some persons in doing legal work can useassistants with great advantage; others can use onekind of assistants but not another; while others are soconstituted that almost any help offered is useless tothem. Nevertheless, as stated, it is clear that the re-porters will for the most part need assistance. There-fore, as the work proceeds there will probably be de-veloped a bureau of research, so manned as to be ableto supply such trained assistants in the collection andarrangement of authorities and in the preparation ofspecial reports on the authorities bearing on specificquestions, as experience shows are essential to thepreparation of a work which should be done with a fullknowledge of the present sources of the law.

(6) Legal Surveys.

The object of the restatement to be undertakenby the Institute is to improve the law, not merely byclarifying and simplifying it, but also by better adapt-ing it to existing needs. The Institute must not onlyascertain what the law is but what it ought to be, bear-ing in mind that the changes advocated should be

confined to those designed to carry out the policieswhich are generally admitted to be desirable andwhich do not touch subjects of general public contro-versy. (Pages 15 and 16.) In many topics therefore itwill be desirable to have a survey made of the practicaloperation of existing rules of law. In the field of adjec-tive law there are few topics which it would be worthwhile to restate unless the restatement was preceded byand based on such an investigation. On the other hand, ageneral survey of the operation a topic of the substan-tive law will not as a rule be either practicable or de-sirable. It may often, however, be found advisable toinvestigate the workings of one or more of the rulesof substantive law, especially in connection with topicsor parts of topics that affect business or social condi-tions.

The work of making these legal surveys will, webelieve, be an important part of the work of the bureauof research. The determination to make an investiga-tion of the practical operation of a part or the whole ofthe present law pertaining to a topic will be the resultof a request on the part of the committee of experts.The exact object and nature of the survey as well asthe detailed plans for its execution will be worked outin a conference between the members of the committee,the reporter and the director of the Institute, the plansadopted being of course subject to the approval of thecouncil. The character of each survey must be ad-justed to the nature of the topic and there will be widedifferences between different surveys. For thosepertaining to the operation of the adjective law muchcan be learned from the survey of the administrationof criminal law in Cleveland, Ohio, and doubtless muchmore will be earned from somewhat similar investiga-tions about to be made in other places under the direc-tion of the American Institute of Criminal Law andCriminology.

(L) TIME AND COST.

As previously explained it is not practicable to tellhow long it will take to cover all the possible topics intowhich the law may be divided by a restatement such aswe have in view. It may probably be unwise to attempta restatement of some portions of the law for manyyears, if at all. The Institute is an organization to op-erate a new force working towards the clarification,simplification and adaptation of the law to presentneeds. Its method of operation will be the putting forthfrom time to time of restatements of parts of the law. Inthis Report we have called these parts topics. Whentherefore we speak of "time" in connection with thework of restating the law we mean the time it will taketo make a restatement of one or more topics desig-nated; and the important immediate question is:How long will it take to produce results in the threesubjects which we suggest that the Institute on its or-ganization immediately undertake to restate?

The exact work to be done has never been at-tempted before; besides which, the very method of workoutlined in this Report-a method which we regard asnecessary to insure a. good result-has as essential ele-ments constructive work by a group of experts, and alsothorough criticism by a still larger group. To calculatethe approximate time it should take a Reporter withproper assistance to complete the preliminary draftalong the general lines mapped out as a result of thefirst conferences of the committee of experts with theReporter will be sufficiently difficult, but to say before-hand with exactness how long the draft will be workedover by the Committee and the Reporter before theCommittee will feel that they can report a complete andsatisfactory draft to the Council, and how long the Mem-

bers of the Institute will take to consider the draft, ismanifestly impossible.

While for these reasons it is not possible to esti-mate how long it will take to produce in the form recom-mended a complete restatement of the conflict of laws,or torts, or business corporations, there is no reasonwhy the Council should not take the position that theyexpect the committees of experts in each topic to fur-nish them with a draft of at least some portion of thetopic assigned in a given time, provided the amount ofthe topic to be completed is approximate rather thandefinite.

Thus if the work on the first topics is planned inthe manner suggested we believe that it is not unrea-sonable to expect that two years from the appointmentof the first committees of experts will be sufficient tocomplete some portion of each of the three topics se-lected, and that five years will be sufficient to demon-strate the permanent value of the work.

Just as it is impossible to give an estimate of thetime which it will take to complete a restatement ofany topic it is impossible to give an estimate of thecost of producing a restatement such as we have inmind of the conflict of laws, torts or business cor-porations. On the other hand it is possible to give theapproximate annual cost of doing the work on threetopics provided the work is done in accordance with themethod recommended.

The cost may be considered under the followingheads:

Council, Executive Force, Committees of Ex-perts on Particular Topics, Committee on theClassification of the Law and Terminology, andPrinting.

TABLE A

Council: Estimated Cost for One Year21 Members, one meeting, traveling ex-

penses average $100 per member $2,1007 Members of the Executive Commit-

tee, five meetings, traveling ex-penses, average $50 per meetingper member 1,250

Total $3,350

TABLE BExecutive Force: Estimated Cost for One

YearDirector $10,000Traveling expenses of Director 1,000Office expenses:

Rent and telephone $1,200Stenographer ($30 per week) 1,560Stationery, stamps and tele-

grams and incidentals,$2.50 per day for 300days 750

3,510

$14,510

TABLE CCommittees of Experts and Reporters: Esti-

mated Costs for One YearEach Committee:

Reporter $5,000Assistants 2,000Members of Committee of Ex-

perts 7,500Traveling expenses 2,240Stenographic expenses 2,000

Total $18,740Total for three Committees $56,220

The allowance of $5,000 for the Reporter is basedon a rate of $10,000 for the exclusive time for one yearof a person of established legal reputation and specialknowledge of the law of the topic. With some personsthe best results will be attained by requiring exclusiveand continuous work for six months; with others otherarrangements will be more advantageous to the Insti-tute. These, however, are details into which we neednot enter here.

The allowance of $2,000 to assistants is based ona rate of compensation sufficient to secure the entiretime of a recent graduate of one of our Law Schools,the graduate possessing outstanding ability. In manycases it may be found better to distribute the $2,000among two or more assistants, making with each a spe-cial arrangement as to time and work.

The allowance of $7,500 for the members of eachcommittee is based on a compensation amounting toan average of $1,000 each for seven or eight members.It is also based on the supposition that the meetings ofthe committee will occupy about four weeks during theyear, and that the members will be expected to do somework between the meetings.

We believe that there will usually have to be aboutfour meetings of the committee during the year, andthe allowance for traveling expenses is based on anestimate of an average of eighty dollars for each mem-ber for each meeting. Items of this kind are hard toestimate beforehand. A reduction of the number of themembers of the committee tends to reduce it. On theother hand the Council should not hesitate to employa desirable person as expert merely because of theexpense entailed because he resides at a distance fromthe place of meeting. Furthermore, the members ofthe Committee themselves should be free to meet asoften as is reasonably necessary.

The item for stenographic expense is based on onestenographer for twelve and one stenographer for eightmonths at $100 per month each. Here again, as in thecase of the assistants, there may be periods when muchmore stenographic assistance is needed, and other pe-riods in which the full time of a stenographer will notbe required.

TABLE DCommittee on Classification of the Law and

Legal TerminologyReporter $2,000Assistant 1,000Members of the Committee of Experts 5,000Traveling 1,600Stenographic expenses 500

Total $10,100

The work of this Committee while necessarilygreater during the first years than later will not be inany year as great as the work of a committee appointedto restate the law. The estimates underlying the fig-ures given in Table "D" are made on this assumption.The members must be selected because of the special at-tention which they have given to the subject of classifica-tion, and the membership of the Committee must be suf-ficiently numerous to make its personnel representa-tive of many different fields of law. We have, therefore,estimated that there will be ten members.

TABLE E

Printing: Cost for One Year2000 pages (1000 copies) $8,000Corrections, holding type, etc. 4,000Distribution 500

$12,500

When the Reporter completes his preliminary

draft it must be put into print for the use of the

Committee of Experts, and the type held. The Com-

mittee must, of course, distribute printed, not typewrit-

ten, copies for criticism and suggestion. As the va-rious tentative drafts are prepared and discussed by theReporter and the Committee many corrections, ofteninvolving complete resettings of type, will be made. Thefigures given in Table E are given after a considerationof these factors. We have also assumed that whenthese committees are working the combined productwill not exceed and can probably not reach 2,000 pagesof 400 words to the page, or 80,000 words. Of course,it will be understood that this is an approximate esti-mate of a most general kind. Some topics present moredifficulties than others, and this is true of differentparts of the same topic. It will probably be found thatthe cost of printing connected with the work on anytopic will not be as great the first year or even the sec.ond year as it will be in subsequent years, because atthe start the authorities have to be collected and basicquestions settled in connection with the arrangement ofthe topic and its more fundamental legal principles.Table E, therefore, should probably be considered asthe average cost for the first few years provided onlythree topics are undertaken at one time.

It will be noted that the estimated cost of pub-lishing the completed volumes and the different parts ofthe restatement approved by the Institute has not beentaken under consideration. We may confidently as-sume that the receipts from the sale will much morethan cover this cost; indeed it is probable that a verylarge profit on the cost of printing and publishingcould be made from the sale, if the Institute desires tomake the profit. This, however, is a matter which need

not be gone into here. We are not suggesting the foun-dation of a commercial enterprise.

The following is a summary of the foregoing tablesof estimates of annual cost:

Council $3,350Executive Force 14,510Committees of Experts and Reporters 56,220Committee on Classification of the Law

and Terminology 10,100Printing 12,500

$96,680

It should be realized that this estimate includesonly the annual cost of carrying on the work on threetopics at one time. As a permanent force of able mengiving all their time and energy to the work is de-veloped the cost will probably increase. Neither doesthe estimate include the cost of any surveys undertakento ascertain the effect of the practical operation of ex-isting rules of law. (See supra, page 55.)

(M) CONCLUSION.

We have here presented a definite plan, the execu-tion of which is, we submit, second to none now underconsideration in the importance of its contribution tothe efficiency of government, the dignity and impres-siveness of the law and the stability and progress ofour democracy.

The plan is an ambitious one. It is not merely theestablishment of a law institute, it is the creation of anew force which will operate to clarify and simplify thelaw and better adapt it to the needs of life. It contem-plates drafting the learning of the schools and the prac-tical experience of the bench and bar for the perform-ance of a greatly needed public service. Its executionwill ultimately involve an annual expenditure whollyunjustifiable were it not for the benefit which may rea-sonably be anticipated.

The defects in the law and its administration causesevere denunciation of the law and of the governmentnot only by the ill-informed of all classes, but by thosewho are well informed. The times demand more efficientservice from the legal profession. The community mayrightly look to the lawyer to promote social peace, goodorder and well-balanced social progress. Peculiarly im-portant is it to undertake now the task of improvingthe administration of justice, when new world-condi-tions are destined to give rise to problems of socialjustice which will surely strain the legal machinery ofsociety and both substantive law and administrativeprocedure must be defensible in order to withstand thestrain.

It is as much the lawyer 's duty to organize to pro-mote the improvement of the administration of justiceas it is the duty of the doctor of medicine to organize

65

to increase medical knowledge. The work of the pro-posed Institute is analogous both in respect to the char-acter of the labor involved and the importance of itsresults to those institutions founded to investigate thecause of disease. It may justly ask that the public sup-port its work in the same generous spirit that it nowsupports the work of medical research.

PART II.

THE LAW'S UNCERTAINTY AND COMPLEXITY.

PEFATORY STATEMENT.

It has seemed to us desirable to consider and tostate, at greater length than is appropriate for an intro-duction to our recommendations, the causes of the law'suncertainty and complexity and the forces which aretending to diminish these defects. Though printed as theSecond Part of our Report, the analysis herein made isthe foundation of our recommendations.

(A) CAUSES OF UNCERTAINTY.

(1) Introductory Statement Concerning the Sources ofthe Law.

Our law is expressed, changed, developed and moreor less adapted to our needs and sense of justicemainly by judicial decision and by statute.

Much of our law is not expressed in statutoryform. Important parts of almost all subjects, and all,or nearly all, of the law on many subjects is expressedwith binding authority only in the recorded deci-sions of the courts. When a case is presented to acourt for decision, prior decisions in cases involvingmore or less similiar questions are precedents fromwhich rules for the guidance of the court may possiblybe derived. A rule thus repeatedly recognized throughits frequent application by the courts becomes a prin-ciple of the common law. The greater the number,variety and importance of the transactions to which aprinciple applies, the more fundamental the principle.

The decisions of the courts as a source of law arenot confined to subjects on which no legislative provi-sion exists. It is true that a statute may so minutely

describe all the situations to which it applies that thecourts have no other duty in connection with its appli-cation than to ascertain the facts of the case alleged tocome under its provisions. The great bulk of ourstatutory law, however, is not of this character. Prac-tically all statutes relating to the substantive law con-tain one or more provisions sufficiently general to raisea doubt as to their proper application in some cases.Such a doubt can be resolved only by the decision ofthe courts. Many statutory provisions indeed aremerely statements of more or less general principlesof law, and the major part of the law pertaining to thesubject with which such statutes deal consists of rulesfor the application of these principles developed by thecourts by a process similar to that by which com-mon law principles are developed. These rules indeedform the common law pertaining to the statute.

(2) Lack of Agreement on the Fundamental Principles ofthe Common Law.

The principles of the common law are developedby the slow process of judicial decision. The powerthat makes may modify and hence the common law hasa flexibility which the statute law does not possess. Acourt may always consider all the facts of a case with aview to recognizing in any one or more of them a justcause for an exception to a previously recognized prin-ciple. Some uncertainty in the ramifications of the com-mon law is therefore inevitable. It would exist althoughthere was general agreement on clearly expressed fun-damental principles, but the possible uncertainty is in-creased because unfortunately no such general agree-ment exists. It is not the duty of our courts to setforth the principles of the common law in an orderlymanner, or even to express or explain them, except inconnection with the application of one or more of them

to the decision of a particular case. To obtain evenan approximation to such an agreement on funda-mental principles these would have to be set forth bypublic authority or by an agency commanding the re-spect and attention of the courts. There is no suchagency, and this lack of general agreement on funda-mental principles is the most important cause of uncer-tainty in the law.

(3) Lack of Precision in the Use of Legal Terms.

Certainty in the law presupposes clear thinkingon the part of those whose duty it 'is to know and in-terpret it. No greater obstacle to clear thinking existsthan lack of precision in the use of words.

The effect of loose legal terminology in increas-ing the law's uncertainty is obvious. • The exact prin-ciple intended to be expressed by the judge in writingthe opinion, by the legislature in adopting the statute,or by the law writer in compiling the' treatise, may bemisunderstood, and therefore misapplied by the judgewho turns to the decision, the statute or the treatise forguidance.

There is no inherent.reason why the law, like anyother applied science, should not designate by preciseterms the things with 'which it constantly deals. Thisour law fails to do. Even educated lawyers use manyelementary legal terms such as "obligation," "debt,""right," with any one of several different meanings inindiscriminate and confusing manner. When this con-fusion of terminology is found in contracts, wills, stat-utes and decisions, doubt and litigation inevitably fol-low.

The difficulty in obtaining an exact legal terminol-ogy is enhanced by two circumstances. First the lan-guage of the law must not be too recondite for generalunderstanding. A philosophical terminology, though

exact, may be so difficult to learn or to understand or toapply as to be undesirable. Second, no violent change inmethods of expression or terminology from those hith-erto in use can be adopted. Old terms in statutes pre-viously enacted, and in former decisions, control theexisting law. The whole bench and bar still use thoseterms instinctively and as a matter of course. Changescan be made and must be made where exactness of ex-pression imperatively requires them, but such changesmust be gradual, and there is a limit beyond which theycan never go lest the language of the law cease to beplain English.

(4) Conflicting and Badly Drawn Statutory Provisions.

The lack of agreement on, or even clear statementof, the principles of the common law has its analogy inthe field of. statutory law in.conflicting and badly drawnstatutory provisions. The collateral effects of the spe-cific provisions, a matter often wholly disregarded inthe adoption of a statute, is .frequently the sourceof much uncertainty and confusion. The questionwhether a prior statute is repealed may be left indoubt. Again the possible application of the provi-sions of the statute to conditions wholly apart fromthose which gave rise to the demand for the legisla-tion may be for years a prolific source of uncertainty.Thus, the fourteenth amendment to the Federal Con-stitution was adopted to protect the rights of therecently freed slaves, but the great volume of litigationresulting from the adoption of the amendment has beenover matters having nothing to do with the rights ofthe negro.

Lack of clarity in the language used is, however,perhaps the cause of the major part of the uncertaintyin our statutory law; The poor draftsmanship whichmars many of our statutes is not the fault of members

of our legislatures. It is principally due to the errone-ous idea, until recently generally prevalent among themembers of the legal profession, that any lawyer iscompetent to draft a statute. The art of good legisla-tive drafting, like any other art, is mastered only bypractice under the tutelage of experts.

(5) Attempts to Distinguish Between Two Cases Wherethe Facts Present No Distinction in the Legal Prin-ciples Applicable.

The instinct of the judge trained under our legalsystem to respect prior decisions sometimes producesunfortunate results. A case is decided. Another casearises not differing in any essential respect, but thecourt believes that application to it of the principleestablished in the first case would produce injustice.Confronted with such a situation the court may refuseto follow the prior decision, but so far pay formal re-spect to it as to write an opinion in which the courtinstead of frankly overruling the prior case attempts todistinguish the two cases on account of some immate-rial difference in their respective facts. The result isthat we have no clear statement of any legal principle,the law on the subject being left confused and uncer-tain.

(6) The Great Volume of Recorded Decisions.

If a judge in deciding a case were without the guid-ance of a statute, a legal treatise, or the precedent of theaction taken by courts in similar cases, the law wouldbe nothing more than the judge's unaided guess. Someguide other than the judge's sense of right or under-standing of existing custom is essential to approximateany degree of certainty. The more complex the socialand economic conditions the more essential is some ex-ternal authoritative record of what the law is. The ex-

istence of a record of prior cases, combined with thecourt's desire to follow precedent is a factor making forthe certainty of the law. Thus in England the law of realproperty as it existed in the seventeenth and eighteenthcenturies had been brought in spite of its intricate com-plexity to a high degree of certainty by the slow proc-ess of adding precedent to precedent. To-day withother subjects the same process is going on, but a forceincreasingly tending to prevent the process from giv-ing us reasonable certainty in the law is the number ofthe recorded cases which may be cited as precedents.

The modern development of the system of publish-ing and reporting the decisions of courts and the opin-ions which support the decisions, combined with theincrease in the number of jurisdictions, the creation ofnew courts in old jurisdictions, and the greater amountof business done to-day than formerly by the averageappellate court, has created an enormous mass of re-corded cases. A computation in 1917 showed 17,000 vol-umes of American reports and 7,000 volumes of Britishreports. Each year witnesses large additions to thismass of cases. During the year 1914-1915 it was esti-mated that 175,000 pages of American reports and5,000 pages of British reports had been published.

Furthermore to this monstrous and ever-increasingrecord of judicial precedent is being added each year notonly the record of the opinions of the chief law officersof each state on questions of public law, but also thedecisions of public service commissions and otheradministrative boards.

This was forcibly expressed by .a distinguishedNustralian lawyer in a recent address before the NewYork Bar Association.

"In England in the old days such litera-ture was a scanty rivulet. In England and herColonies it has swollen in modern times to a

stately stream. But in America it has becomea raging torrent fed by hundreds of tribu-taries."

S"ir John Salmond here refers to the American au-thorities alone as a raging torrent, but the Americanlawyer cannot confine his search for authority as towhat the law is to the decisions of American courts.English cases are frequently relied on by the appellatecourts, and must therefore be searched by counsel. Forexample, in seven volumes reporting the decisions of theNew York Court of Appeals between January, 1919and October, 1921, the court sites 207 English cases asagainst 238 Massachusetts cases, 73 Illinois cases, andsmaller numbers from other states.

. It is of course impossible for any individual lawyeror judge to read, still less by any device to carry in hismind, one one-thousandth part of this mass of case law.The reports as a source of law must long ago have beenabandoned or arbitrarily limited to a few hundred des-ignated volumes were it not for the aid given by gen-eral digests, digests on particular subjects in the formof treatises and legal encyclopedias. With theses aids, inwhich are cited all, or nearly all of the cases, it is usuallystill possible to collect and to make some examination ofthe action taken by the American and English courts incases whose essential facts present.the legal questionon which information is desired. The time and laborinvolved varies. Often, however, the very thorough-ness of the work done by those engaged in the compila-tion of aids in the search for precedents multiplies thecases cited beyond the possibility of careful examina-tion. Moreover the greater the number of previous de-cisions, even in the jurisdiction where the case in ques-tion is pending, the greater the chance that all of themcannot be reconciled in principle; and in cases wici e

there is no precedent precisely in point in that juris-diction, and where, therefore, reliance must be placedon the decisions of the courts of other jurisdictions,the probable differences of decision are so great as tobe notorious.

The net result therefore is that though the doctrineof stare decisis is the foundation stone of such cer-tainty as the common law has, yet their very numberand still more their contrariety tend to destroy thevalue of the principle and to substitute uncertainty forcertainty.

(7) Ignorance of Judges and Lawyers.-

In view of the nature of the sources of the law itwould be unreasonable to expect the records of anycourt, no matter how learned and able its judges, toshow no inconsistency in the statement or applicationof legal principles. When a case arises, the facts ofwhich are practically identical with those of a priorcase, it is not difficult for the court to recognize thatthe legal principle governing the earlier should be ap-plied in deciding the later case. The task of recogniz-ing the identity of the principle governing the twocases is much more difficult when there are many strik-ing though immaterial differences of fact between them.Yet lack of such recognition is sure to produce uncer-tainty. Indeed variations in the statement and incon-sistency in the application of legal principles causegreater uncertainty than a reversal of a prior decisionor an express repudiation of a previously announcedprinciple. When the Supreme Court finally decided theLegal Tender cases, the country felt that the law wasfixed; it is not so when there is inconsistency in theapplication of legal principles, or when cases are dis-tinguished upon grounds which do not justify a dis-tinction.

The amount of uncertainty in the law at anytime therefore depends to no small extent on thelegal learning and ability of the bench and bar. Ourlegal system probably throws a greater responsibilityon the courts and practising lawyers than any other.The common law is what the judges make it. Theyalone can give an authoritative interpretation ofthe statute law. Nevertheless, in the investigation ofevery legal question they are largely dependentupon the briefs and -arguments of counsel. Thecommunity possesses a force tending towards thecertainty of the law as well as its adaptation tothe needs of life in proportion as our judges andlawyers have that grasp of legal principles which en-ables them to see the real issues presented by the factsof a case, and the skill to apply consistently the properprinciples to its solution. Even well-drawn statutes re-quire for their proper and consistent interpretationwell-trained mental faculties, and often a knowledge ofthe history and development of the law on the subjectto which the statutes relate. The defects also inour statutory law, to which reference has been made,makes the task of statutory interpretation harder andincreases the desirability-of a well-trained bar and ex-perienced bench. Not a little of the existing uncer-tainty in the law is the price we are paying for lowrequirements of legal education preparatory to admis-sion to the bar and for judges often elected for shortterms and chosen for reasons unrelated to their legalcapacity.

(8) The Number and Nature of Novel Legal Questions.

Our recent social and economic development hasbeen of a character constantly to increase both thenumber and difficulty of novel legal questions on whichthe community desires information. Thus the growth

in the variety and in the relative and absolute amountof business carried on by private corporations hasthrown on the courts in the past fifty years the task ofdeveloping, with occasional direction from legislativeaction, a large and important part of our commerciallaw.

The growing dependence of the individual on pub-lic service utilities is another noticeable changewithin the last half century. Those who live under ur-ban or suburban conditions secure their local transpor-tation, light, water, and to a great extent their heat, notby their own efforts or the efforts of those in their em-ploy, but from public facilities owned and operated bypublic service companies or by the government. Fromsimilar sources all the inhabitants of the country securetheir means of communication and transportation.These changes have brought with them many novellegal questions; while the endeavor to secure throughpublic commissions adequate services at reasonablerates has given rise to other questions of constitutionaland statutory interpretation. Efforts by combinationto control production and prices have involved newquestions in the law of fair trade and have also led toattempts on the part of the public to restore competi-tive conditions or through administrative action to con-trol prices-attempts which are apparently destined inthe immediate future to raise new, difficult and mostimportant legal questions. These things and the growthof trade unions and employers' associations, and theefforts on the part qf the public to obtain relief from theunfortunate results of industrial conflict are but somemanifestations of that readjustment of social andeconomic conditions now going forward which in-evitably brings in its train, not only difficult problemswhich have to be decided by public discussion and polit-ical action, but also an increasing volume of important

and difficult legal questions with which the courts inthe administration of the law have to deal without thedirect guidance of statutes or precedents.

(9) The Action of These Causes of Uncertaintyon Each Other.

While it is clear from the foregoing analysis thatthe evil of uncertainty in the law is not due to one butto many causes, these causes act on one another.Thus the lack of agreement on fundamental prin-ciples is greatly increased by the want of precisionin the use of legal terms, by the bulk of our legal re-ports, and by the ignorance of judges and lawyers.Again the degree of uncertainty due to novel cases isincreased by confused and poorly drawn statutes andby lack of agreement on, or a knowledge of the funda-mental principles of, the common law.

(B) CAUSES OF COMPLEXITY.

(1) Introductory.

The statement that the law on any subject is com-plex may denote one of two things. It may mean thata number of rules of law apply to a given situation, orit may mean that in order to ascertain the law appli-cable thereto many elements of fact have to be con-sidered.

'"Then used in the first sense the degree of com-plexity is determined by the number of legal regula-tions affecting the class of transactions under consid-eration. If the only rule of law relating to the carewhich a railway company should exercise towards apassenger is the rule of reasonable care under all thecircumstances, the law of negligence, so far as it relatesto common carriers and their duties to their passengers,is, in the first meaning of the term, is not complex. If bystatute or by court decisions a number of rules regard-ing the kind of rails, signals, cars, etc., which those op-erating a railroad should use attain the force of law,the law in this first meaning of the term has becomemore complex, because the rules of law affecting thecarriage of passengers are more numerous..

In the second meaning of the term the degree ofcomplexity in the law is measured by the number ofquestions of fact that must be taken into consideration.Thus in the illustration just given if the rule ofreasonable care under all the circumstances is theonly rule of law affecting the duties of a railroad com-pany in carrying passengers, this branch of the law ofnegligence, though simple in the first meaning of theword complexity, may be very complex in the second;because to determine whether the company has useddue care when a passenger has been injured, manythings connected with the complicated physical process

by which a modern train is operated may have to betaken into onisideration.

At present the general tendencyr of the law of neg-ligence is to become more complex, if complexity ismeasured by the number of rules applicable to the nor-mal transaction. 'Take a person traveling on an urbantrolley car. When this mode of conveyance was firstestablished the law in the first sense of the term wassimple: The passenger could not recover for an acci-dent caused by the negligence of the company if hehimself was not at the time exercising due care to avoidinjury. The test of this due care was the care requiredunder all the circumstances of the particular case.These circumstances might be very numerous. Owingpartly to the tendency of the courts to be governed byprevious similar cases, and partly to the fact that cer-tain acts, as getting off or on a moving car, are ordi-narily dangerous, this general rule of law has beenalmost buried in many jurisdictions under numerousspecial rules as to the care which should be exercisedby a person boarding, traveling on and alightingfrom an urban trolley car. These rules are morethan rebuttable presumptions that the person violatingthem is careless-they have become principles of law.Thus in the first sense of the term the law is becomingmore complex. On the other hand when an accidentoccurs the application of the law to the situation tendsto become comparatively simple. All the facts of thecase need not be considered if the person harmed atthe time of the accident was violating one of the rulesof law conclusively prescribing the proper conductunder the circumstances.

(2) The Complexity of the Conditions of Life.

Life is complex when it is full of situations inwhich many things have to be taken into considerationto determine conduct. Thus the life of the pioneer may

be hard but it is not complex. True the physical fac-tors which he must consider may narrow his actions toa struggle for existence, but they are not complicated,and the social factors, his business transactions and hispersonal relations with others, are few and simple.

Among the forces tending to increase the complex-ity of life are distinctions of legal status, inventionsand discoveries, the growth of commerce, and thecapacity to act in association with others. The devel-opment of the modern state has on the whole tendedto decrease distinctions of legal status. The feudalsystem with its intricate provisions respecting the ten-ure of land has disappeared, as well as the speciallegal privileges of nobles and the special legal disabil-ities of Jews. The disabilities of married women havebeen more recently almost wholly removed. Life is,however, apparently becoming for the average personmore complex because the other forces referred to, in-ventions and discoveries, which increase man's powerover nature, man's disposition to engage in commerce,and his capacity to associate himself with others to at-tain economic ends, are increasing the number andvariety of situations in which many factors, physicaland social, have to be taken into consideration todetermine propriety of conduct.

The forces referred to as making for greater com-plications in the conditions of life also tend to increasethe complexity of law. This is true whether we usethe term "greater complexity of the law" as denotingan increase in the number of rules of law applicableto the transactions of man, or as denoting the necessityto take into consideration a greater number of factorsin order to ascertain the law in a given situation. Anation engaged in commerce obviously enters into agreater number and variety of transactions than anagricultural people, not only because sales of existinggoods are more numerous, but because methods of con-

tracting for future supplies and of dealing by bills oflading and warehouse receipts with goods at a dis-tance must be found. Elaborate machinery for creditand for security also forms a necessary part of commer-cial life.

The effect of inventions and discoveries may beillustrated by the consequences of the introduction ofthe automobile. The number of facts to be taken intoconsideration in determining what is due care in theuse of the highways has been increased. This mayeither increase the number of the rules of law appli-cable to traveling on the highway, or the number offactors which must be taken into consideration todetermine the legal responsibility for an accident.Indeed, both of these things have resulted fromthis new mode of travel. While the number of rulesof law have increased, the number of facts whichmust be taken into consideration in the average acci-dent in order to determine legal responsibility havealso increased. From either point of view thereforethe law has become more complicated.

A similar result follows an increase in the numberof social relations involved in a business transaction.'The employment of agents, the formation of partner-ships, the carrying on of business by corporationswhich often have hundreds and sometimes thousandsof stockholders, all increase not only the number ofpersons affected by the average business transactionbut the number of groups of persons having dis-tinct interests. The law must either take into con-sideration each new social relation as it arises, and bythat fact become more complicated, or to the extent ofits neglect fail as an instrument for the administration

* of justice. Thus the early English courts, by refusingto recognize any right in land except that of the personholding the formal or legal title, maintained the law in

its simplicity at the expense of doing justice tothose for whom the owner of the legal title had agreedto hold. The establishment of the Court of Chancerywas due to a desire to do justice in cases wherethe ordinary rules of the existing procedural and sub-stantive law were deficient by reason of their univer-sality. The system of equity which that court firstdeveloped has rarely tended to simplify the law, butit has tended to adapt the law to the needs of life.

(3) Lack of Systematic Development of the Law.

The growth of the common law from precedentsnot infrequently results in illogical distinctions, some-times due to failure to follow a sound principle, butmore frequently to the adoption of a rule which vio-lates general principles established in other cases.Thus it is universally recognized that unilateral con-tracts are as valid as bilateral. Any act or forbear-ance by, one not bound so to act or forbear should beand generally is held a sufficient consideration for apromise made by one who requests the act or forbear-ance. Yet in several cases it has been held that therecan be no valid unilateral contract with forbearanceas the consideration. These cases cite and follow oneanother oblivious of the general principle.

An even more glaring illustration is afforded by acase in Massachusetts-Malardy v. McHugh (202 Mass.,148). The court there following earlier decisions heldthe defendant not liable for' fraudulent misrepresenta-tion of the area of land sold where the boundaries ofthe tract were pointed out. The court expressly recog-nized that the representation was one of fact and thattherefore it was within the general rule that false andfraudulent representations upon which a plaintiff hasrelied to his injury are actionable, yet because of theearlier decisions on identical particular facts gave

judgment for the defendant. Such following of anearlier decision on its precise facts in spite'of a viola-tion of principle in so doing may be justified whereVested property interests have been acquired in reli-ance on the earlier decision; but in the illustrationsgiven there can be no such defense. Every time onewho has received requested forbearance in return fora promise is allowed to break his promise without lia-bility, the result is nothing but injustice, and to recog-nize a vested right of persons who sell land in Massa-chusetts to lie about the area of the land if they pointout the boundaries is almost grotesque.

The lack of systematic development of the law asa cause of its complexity applies to the statute as wellas to the common law. While in practically all our statessome portions both of the substantive and the adjectivelaw have been dealt with as a whole by statute, andwhile. in a few states codes purporting to cover thewhole law have been adopted, it is nevertheless truethat American legislation ordinarily affects not thewhole of the subject with which it deals but only somepart of it. The result may be that rules of law whichnever rested on sound principles or which have become6bsolete are wiped out, but on the other hand suchstatutes may and frequently do, like a wrongly decidedcase, induce unnecessary legal complications and estab-lish illogical exceptions to sound legal principles.

(4) The Unnecessary Multiplication of. Administrative* Provisions.

The purpose of adjective law is to provide a methodby which disputed legal rights may be determined andas determined enforced. The rules which make up thelaw of pleading have as their special end the presenta-tion of the issues of law and fact to the trial court.The rules that relate to appeal not only have the

similar object of a clear presentation of the issues oflaw, but also the discouragement of frivolous appealsand the due expedition of the business of the appellatecourt. A rule of procedure may fail to allow its objectbecause it does not give adequate guidance. For in-stance, to substitute for the present rules of evidencethe rule that any evidence Could be admitted which hada connection, however remote, with the question atissue would so encumber the record with gossip andother hearsay that even an intelligent jury would tendto become confused. Again, the business of an ap-

pellate court could hardly be conducted if its only rulein regard to appeals was that they should be presentedwithin a given time. Some regulations as to whatshould be set forth to indicate the issue on which thecourt is to pass are necessary.

Rules of procedure which thus fail because of lackof sufficient detailed regulation cannot be said to com-plicate the law, even though delay and confusion in itsadministration is the natural result. On the otherband procedural provisions may fail because of overelaboration of regulation. This is to-day the defect ofmany of the statutes governing procedure in morethan one of our states. Such statutes which unneces-sarily multiply distinctions complicate the law. Theytend to turn its remedial processes into a game inwhich the correct handling of complicated rules be-comes an end in its-elf.

One of the causes of this last defect is the conser-vatism of lawyers. This conservatism delayed foryears conferring upon our courts equity juris-diction, and even after the jurisdiction was con-ferred prevented for a long time much practicaluse of its more mobile remedial processes. To-day the same conservation tends to raise objectionto the abolition of rules of procedure perhaps well

adapted to earlier conditions which no longer serve anyuseful purpose. Lawyers are not singular in exhibit-ing dislike to alter the tools of their trade. When onehaslearned how to do a thing with the expenditure of muchtime and labor it is natural that he should not welcomethe reformer who proposes to change the rules and in-dicates the uselessness of the intricate technical learn-ing on which their application depends.

In view of this natural conservatism it is a matterof commendation that so much has been done in recentyears by bar associations -and committees to simplifyprocedure; for if the art of procedure is to be improvedit will be only by those who know the art.

The conservatism of the bar is not the only causeof; the time now spent over procedural questions.State legislatures instead of placing on the judges theresponsibility of moulding procedure so that certaintyand celerity may mark' the administration of justice,have largely contributed t6 the complexity of the ad-jective law by' adopting elaborate procedural codes con-taining a multitude of minute 'regulations, and haveshown an indisposition to allow courts full control ofproceediigs before them. ]kppropriate judicial proce-dure can be better determined by the judges who useand guide it than by legislative bodies, and tying thehands of j udges by elaborate statutory rules compli-cates the law and often prevents just conclusions. Thusthe statutory restrictions on the powers of a trial judgein charging a jury which prevail in a number ofstates can be productive only of evil. The Mississippistatute, for instance, which forbids the judge to "sumup or comment on the testimony, or charge the jury asto the weight of evidence" is scarcely calculated tosimplify the law or to increase the probability thatjustice will be done.

(C) UNCERTAINTY AND COMPLEXITY DUE TO

VARYING LAW IN DIFFERENT JURISDIC-

TIONS.

(1) The Nation and Each State an Independent Source ofLaw.

American law is made, expounded and adminis-tered by forty-eight states and by the Federal govern-ment. Each state legislature and each state courtof last resort is an independent source of law. Astate legislature may be and often is influenced by astatute in force in another state relating to a subjecton which legislation is desired, but it is not bound tofollow all the provisions of the other statute or theexact wording in which any one of the provisions whichit does adopt is expressed. To a much greater extentthe courts in one state in determining the law appli-cable to a case they are called on to decide are influ-enced by the decisions of the courts of another state orof the Federal courts in similar cases, but as in thecase of laws adopted by the legislatures of other states,the decisions of the courts of other states are per-suasive, not binding.

In view of the fact that uniformity in the statutesand decisions of the several states is not compelled byconstitutional mandate it is perhaps a subject for re-mark that so much similarity exists. Nevertheless thevariations in the law are many. These variations aredue to several distinct causes.

(2) Variations Due to Differences in Economic and SocialConditions or in Inherited Legal Systems.

Although we are, in spite of our varied origin andthe wide area of our continental domain, a wonderfullyhomogeneous people, many examples of variations in

law due to differences in economic and social conditionsmight be mentioned. -Thus the different social experi-.ences and theories of the people of different stateslead some to recognize many causes for divorce, othersonly one cause, and the State of, South Carolina doesnot recognize any cause. Again, the mining laws ofPennsylvania are adapted to operations where shaftsmust be sunk, tunnels run and roads blasted, but thelaws of California must also provide for hydraulicmining.

While the great majority of our states originallyderived their law from England, those sections of thecountry included in the Louisiana Purchase and thelater acquisitions from Mexico derive some or, as in thecase of the State of Louisiana, much of their privatelaw fromthe civil law of Europe. Many of the result-ing differences in law do not reflect existing or evenpast differences in economic or social conditions, butare merely the outcome of different theories of whatthe law ought to be. Thus there is not to-day andnever was any difference between the economic andsocial conditions of England and France requiring inEngland but not in France a consideration to supporta. contract. This notable difference, like many others,has its origin in the far greater influence of the Romanlaw on the continent of Europe than in England. On

the other hand many of the differences in the law ofpersons, such as that affecting the legal status of hus-band and wife, and their respective relations to eachother's property, are due in part at least to past socialdifferences between England and France. While thesedifferences have largely disappeared they Atill exist tosome extent, because when once a social condition hasbeen reflected in the formal rules of law, the law -itselfbecomes a factor tending to perpetuate that social con-dition.

(3) Accidental Variations.

(a) IN STATUTE LAW.

Many variations of the law in different jurisdic-tions are due merely to accident.

One state will adopt a novel statute, such as a,workmen's compensation act; similar legislation willbe adopted in another state; and in time this type oflegislation becomes general. The practical result ofeach state adopting its own statute is that two statesrarely have identical statutes, while in'many statesthe differences though not perhaps radical are numer-ous. The fact that under our system of state govern-ments we are not obliged to adopt a novel experimentin statutory law in all parts of the country at one timemay sometimes be an advantage when novel public ad-ministrative or social legislation is under public con-sideration. The state whose people are not averse totrying the new statutory provision becomes a labora-tory in which the people of the other states can observethe practical effects of the various provisions of thestatute. When, however, legislation of a given type ona specific subject has. become general in all the states,and there is necessity for varying provisions, merelyaccidental differences are always unfortunate.

(b) ACCIDENTAL VARIATIONS IN COURT DECISIONS.

I. Extent of These Variations.

Most accidental variations in the law of differentjurisdictions is due to differences in the statement andin the application of the non-statutory rules of thecommon law. There is also a very considerable num-ber of conflicting decisions relating to the interpreta-tion of similar or identic£1 statutory provisions. Evenwhat are known as uniform state laws, that is, statutesdrafted by the National Conference of Commissioners

on Uniform State Laws and adopted by state legisla-tures with the express object of making uniform thelaw of all states adopting the statute, have in severalinstances received conflicting judicial interpretation.Such conflicts are most unfortunate. Conflicting judi-cial interpretation of like statutory provisions -hasrarely any compensating 'good effect to offset theresulting uncertainty and complexity. -

II. Ignorance as a Cause of These Variations.

A conflict between the decisions in two or morejurisdictions, not due to differences in economic orsocial condition's or to historical origin, may be due toone of several 'causes. In the first place it may be dueto ignorance. The court may not know of the prior per-tinent decisions in other' states, and the reasoning onwhich those' decisions axe based. Such knowledgemight have altered the court's conclusion. In spiteof the diligence of the modern attorney in his searchfor cases analogous to his own, a diligence often in-volving an amount of labor which interferes with ade-quate consideration of underlying legal principlescourts frequently have th'eir attention drawn to deci-sions of like cases in other jurisdictions.

III. Differences in Legal Theory as a Cause of TheseVariations.

Again, a court knowing and considering a decis;onin another jurisdiction may refuse to follow it, not be-cause of differences in conditions between the two juris-dictions,,but because the court believes the other deci-sion is wrong as a matter of legal theory, the principlesof law expressed or their application to the issue raisedby the case being incorrect.

IV. Conflicting Decisions in a Single Jurisdiction asa Cause of These Variations.

A frequent cause of varying decisions in differentjurisdictions, of which many examples might be given,is divergent decisions in a single jurisdiction, towhich other jurisdictions look for precedent. Thisoccurs both in the realm of the common law and instatutory construction. An earlier case may state thecommon law rule or announce the construction of astatute. A later case in the same jurisdiction may over-rule the first. A case presenting similar facts may arisein a second jurisdiction subsequent to the first andprior to the second decision in the first jurisdiction.The very desire of the judges in the second jurisdictionto preserve the general uniformity of the law will leadthem to follow the then announced rule of constructionof the first jurisdiction. The courts of a third juris-diction, if a similar question arises thereafter, will fol-low the latest precedent. These conflicting viewsof the law will become the established rule of law inthese jurisdictions or even become points of departurefor further variations in the jurisprudence of differentjurisdictions. Decisions as to what are "goods, waresand merchandise" under the Statute of Frauds affordan illustration.

Decisions as to what are contracts for the sale ofgoods, wares ', and merchandise, under the Statute ofFrauds, afford an illustration. The early English case ofRondeau v. Wyatt, 2 H. Black. 63 (1792) decided thatan agreement for the construction of a chattel frommaterials to be furnished by the seller was not a con-tract for sale, but for work and labor, and was there-fore not within the statute. Later an English court, inClay v. Yates, 1 H. & N. 73 (1856), holding a contractfor printing certain books not a contract for sale butfor work and labor, made the distinction that only

where the application of skill and labor was the prin-cipal part of the performance and the value of the ma-terials was of comparatively slight, importance, wouldthe contract be one for work and labor, and not for sale.Still later, however, an English court went to the fullextent of holding that. wherever the.performance ofthe agreement would result in the transfer of owner-ship in a completed chattel, the contract was one forsale and was within the statute. Lee v. Giffin, 1 B. &S. 272 (1861). This has been carried to the logicallimit of holding that a contract to paint a. portrait is acontract for the sale of goods. Isaacs v Hardy, 1 Cab.& E. 287 (1884).

Jurisdictions in the United States have followedeach of these successive conclusions of the Englishcourts. In New York it was early held in Crookshankv. Burrell, 18 Johns. 58 (1820), that any contract bywhich the seller agreed to manufacture goods was acontract for work and labor, and this .rule was con-sistently followed in that state until the -adoption ofthe Uniform Sales Act, and has been followed in anumber of other American states. In Massachusettsthe rule was so far qualified as to confine contracts forwork and labor to cases where the goods manufacturedwere made to a special order and were thereforedifferent (and presumably involved more special la-bor) from those ordinarily made by the seller. Mix-ner v. Howarth, 21 Pick. 205 (1839'). This rule hasbeen continuously followed in. Massachusetts to thepresent day, and has been adopted by many otherstates, and often.the value or importance of the skilland labor going into the chattel as compared with thevalue or importance of the materials is emphasized.The Massachusetts rule is enacted as statutory law bythe Uniform Sales Act in twenty-five jurisdictions.Finally, in Missouri, where the question was not set-

tled until after the English court had taken its laststep, the rule is laid down as it now is in England, thiftif the agreement contemplates the transfer of owner-ship of a completed chattel the Statute of Frauds is ap-plicable, without regard to the amount of labor in-volved in making or preparing the chattel. Pratt v.Miller, 109 Mo. 78 (1891).

In each of these American cases the latest Englishauthority was cited and relied on.

(4) Effect of Varying Law in Different Jurisdictions.

(a) INJURY DEPENDENT ON AMOUNT AND CHARACTER. OF

INTERCOURSE.

Variations in the law between peoples having anycontact vth each other are always at least a potentialsource either of uncertainty or of complexity or ofboth.

The amount of uncertainty and complexity de-pends, not merely on the extent of the business andsocial intercourse between the two peoples and on thenumber of variations between their respective laws, butalso on how far the variations relate to matters olwhich the two peoples come in contact with each other.If the commercial law of two countries whose peoplehave considerable business but no social contacts isthe same, variations in the marriage laws or other lawsaffecting persons create few difficulties. Such consid-erations, however, do not apply to conditions in theUnited States. Each part of our country has businessand social intercourse with every other part, and thisintercourse is carried on without regard to State lines.Variations in law between two nations often causemany difficulties and inconveniences, but these are notconsiderable when compared with the serious injurydone by the existing amount of varying law in theUnited States.

(b) INJURY WHERE TRANSACTIONS ARE CARRIED ON IN

Two OR MORE STATES-CONFLICTS IN' CONFLICT OF

LAWS.

There are two types of transactions betweenpeoples of two or more states. Some transactions arecarried on in two or more states; others are begun andcompleted in the territory of a single state. An ex-ample of the first type is a contract made in one stateto be executed partly or wholly in another state; anexample of the second is a contract to be wholly exe-cuted in the state where it is made, but entered intoby a person coming from another state.

Whenever a contract is made in one state to becarried out wholly or partly in another state, and thelaw affecting any part of the transaction is not thesame in both states, in order to determine the resultingrights and obligations of the parties it is, first neces-sary to decide which law shall be applied. The bodyof laws by which a question of this kind is decided con-stitutes the subject ordinarily called Conflict of Laws.

If the law-pertaining to this topic were clear andcertain much of 'the inconvenience due to varying lawin different jurisdictions would be avoided. Unfortu-nately no legal topic presents more complicated anddifficult problems and in none is there greater uncer-tainty and conflict of decisions, so that not infrequentlyto a variance in the law between two jurisdictions therewill be added as a further complication, a conflict in therules governing the law to be applied.

An illustration of this confusion may be foundin a conflict between the decision of the SupremeCourt of the United States and the ChanceryDivision of the Supreme Court of Judicature in Eng-land as to whether'a clause in a bill of lading'in theEnglish form containing an exemption from liabilityfor loss due to negligence of master and crew, the ship-

ment being from a United States port where the billwas issued to an English port, should be governed bythe law of the place of the making of the bill or by thelaw intended by the parties, presumably the place ofperformance. The Supreme Court of the United Statesin Liverpool & G. W. Steamship Co. v. Phcenix Insur-ance Co., 129 U. S. 397, applied the law of theplace of making; the English court in the case of Inre Missouri S. S. Co., 42 Ch. D. 321, on an identical billof lading applied the law of the jurisdictionintended by the parties, -presumably the place of per-formance. Consequently there is not only a con-flict in the law of different jurisdictions regardingthe effect of such exceptions in bills of lading, but thereis a further conflict in the decisions of courts of highauthority as to which law should be applied in a situa-tion where a bill of lading containing this exception isemployed in a shipment between two jurisdictions.

This example illustrates the confusion in the com-mercial law resulting from a conflict in the conflict oflaws. The following illustration shows a still moreunfortunate confusion in the law of persons.

In Haddock v. Haddock, 201 U. S. 562, a husbandwhose matrimonial domicile was New York left his wifein New York and acquired a domicile in Connecticut,and was granted a divorce by the Connecticut court, thewife not having been personally served with process orentering an appearance in the suit. Subsequently theNew York court refused to recognize the validity ofthe Connecticut decree, and the husband sought theaid of the Supreme Court of the United States to com-pel the New York court to give "full faith and credit"to the decree of the Connecticut court. The SupremeCourt, while assuming that the divorce was valid inConnecticut, by the rule of law there prevailing, de-cided that its validity was determinable in New York,

the domicile of the wife, by a different rule existingthere. In short, the couple were married in New York,but divorced in Connecticut. What a third and afourth state might declare to be their relations to eachother, could only be matters of conjecture.

(C) INJURY WHERE TRANSACTIONs ARE CARRIED ONWHOLLY WITHIN ONE STATE.

Injuries wrought by varying laws in differentstates are by no means confined to transactions carriedon in two or more states. In the first place problemsof the conflict of laws are not confined to such trans-actions. An attempt to enforce in one jurisdiction rightsacquired wholly within another may raise questions asto which law is applicable, and considerable injusticemay be inflicted if the law of the forum is applied asit is in a few jurisdictions, in suits for torts and inquestions involving the measure of damages.

Furthermore, the injury resulting from varyinglaw in different jurisdictions is not confined to caseswhere the conflict of laws is involved. A large businessusually operates in a number of states. Not a fewmanufacturing corporations sell their goods directlyin every state. The fact that the laws of the differentstates vary is a serious difficulty in transactingsuch a business, even though the law in each statemay be neither uncertain nor complicated. Forinstance, in one state goods may safely be con-signed on certain terms to a commission merchant, andin that state the right of the consignor will be .pro-tected as against creditors of the consignee. In an-other state the creditors of the consignee can seizegoods similarly consigned. The law governing condi-tional sales presents another illustration of the samesort. Such corporations as the Underwood TypewriterCo. and the National Cash Register Co. wish to sell

their goods to purchasers in every state on conditionalsale. The requisites for a valid conditional sale varywidely, and in a few states no conditional sale can bemade which is effective against the conditional buyer'screditors, or against a purchaser for value from him.A heavy burden is thus cast upon the seller to ascertainseparately the law of each state with which he deals,although each transaction may be made in a singlestate and no possible question can arise as to what lawgoverns the validity of the transaction. Boiler manu-facturers have made similar complaints with referenceto the great variety of inspection laws and similar reg-ulations in different states. The manufacturer of boil-ers wishes to sell his product as widely as possible, butwhat is permissible in one state may not be permissiblein another. Even if the manufacturer is aware of theseparate requirements of the various states, or ac-quires information from local lawyers, he is put toinconvenience and expense in meeting the various re-quirements. Frequently, moreover, he has no completeknowledge though he may have made some effort toacquire it.

This last illustration also indicates that if it betrue, as it probably is, that varying law in differentstates on matters of private substantive law is morelikely to increase the uncertainty and complexity of thelaw than variations in adjective and administrative andother public law, nevertheless variations in adminis-trative regulations are an increasing burden onindustry and therefore on progress.

(D) FACTORS TENDING TO UNIFY THE LAW.

(1) Influence of the Decisions of One State on theCommon Law of Other States.

In view of the fact that each of our states is anindependent source of law, jurisprudence in the differ-ent states would present fundamental differences,rather than as at present multitudinous lesser varia-tions, were it not for the essential similarity of oursocial and economic conditions. These variations are aserious injury, but the variations and the resulting bur-den on our business and social intercourse would be in-finitely greater than they were it not for our commonlanguage, our common heritage of English law and thefact that the courts in each state have a respect for andan inclination to follow the decisions of courts of otherjurisdictions. The assertion sometimes made that thismutual respect no longer exists is incorrect. It doesexist and is still a real and potent force tending towardsthe unification of law among the several states. Whetherthe courts in most of our states are paying less attentionthan formerly to the decisions in other jurisdictions isdoubtful. On the one hand it is certain that in earliertimes when there were fewer decisions or precedents ineach state the necessity for frequent reliance on thedecisions of other jurisdictions was greater thanit is to-day when the majority of our states havea more complete body of law. Furthermore, theincrease in the number of states and the present greatvolume of recorded decisions with the appalling annualadditions thereto are making it more and more difficultfor the judge to know and consider the opposite deci-sions of other jurisdictions. Circumstances beyondthe control of the courts are thus tending to makeconstantly less operative that natural respect. of one

appellate court for the decisions of the highest courtin another jurisdiction as tends to hold in check suchvariations in law among the several states as aredue merely to accident, without basis in differences insocial or economic conditions or in political history.

On the other hand, there is an increasing tendencytowards the citation by counsel and courts of decisionsfrom other jurisdictions. This is largely due to themodern books devoted to assisting counsel to find suchcases, which bring to the attention of counsel decisionsfrom many states. The very multiplication of authori-ties published and cited in these books tends to leadcourts to give less attention to a single decision and tobe guided by general principles and by the weight of au-thority rather than by the authority of a single prece-dent. This tendency is in the direction of unity in thelaw. Such publications moreover act as influences to-wards the unification of law for another reason, that is,because their general use as sources of the law by per-sons in all parts of the country give a general familiar-ity with the statements of the law made in the text.Treatises written in a more scientific spirit, though lessregardful of the binding force of precedent, may goeven farther than the bulk of legal publications in com-mon use in leading the bar and the courts to accentuategeneral principles.

(2) Uniform State Laws.

The economic and social conditions of differentparts of the United States are so nearly alike that it isnatural that the desire for legislation on a particularsubject should make itself felt at one or about the sametime in several States. Prior to the formation of thebody known as the National Conference of Commission-ers on Uniform State Laws this influence towards uni-

fortuity in statute law had no organized direction. Manyof the important statutory modifications of our privatelaw were copies of English statutes. Thus statutes offrauds and of limitations, Lord Campbell's Act im-posing liability for death by wrongful act, and the femesole-trader-acts were copied from earlier English legis-lation. There was indeed at least one instance in whichwe turned not to England but to the Continent ofEurope. In 1822 the State of New York passed aLimited Partnership Act based on the provisions of theFrench law, and the Act has been very generally copiedby other states.

The Conference of Commissioners on UniformState Laws is a body meeting for about a week beforethe annual meeting of the American Bar Association.The commissioners are appointed by the governors ofthe states. Usually from thirty-five to forty states arerepresented at an annual meeting. In some states theaction of the Governor in appointing commissioners isvoluntary. In others, however, the commissioners areappointed under authority of a statute and a number ofthe states make appropriations to defray expenses,though all commissioners serve without compensation.Among the first uniform acts recommended by the com-missioners were the Negotiable Instruments Law andthe Sales Act, both based on English statutes on thesame subjects. Other acts have been drafted with littleor no reference to foreign models. Indeed in more thanone instance no corresponding English or other Euro-pean legislation exists. Acts drafted and adopted bythe Conference are recommended by it to the legisla-tures of the several states. I takes at least ten yearsfrom the time of the publication of an act on a commer-cial subject by the Conference before it is generallyadopted in the leading commercial states, and approxi-mately twenty years before it is likely to be adopted

throughout the country, even when it is generally re-ceived with favor. Uniform acts prepared by the Con-ference not relating to commercial law has not beengenerally adopted by state legislatures.

(3) The Increasing Exercise of Legislative Power by theFederal Government.

The increasing exercise of legislative power by theFederal Government during the past thirty-five yearshas been noteworthy. Until 1887 Congress had notundertaken to regulate interstate commerce. TheSherman Anti-Trust Act, the Clayton Act, the Inter-state Commerce Acts, the Pure Food Act, the MannAct, and the more recent post-war enactments underthis power have drawn into the Federal courts a largevolume of important business. Furthermore not onlyare long dormant Federal powers being utilized, but twoconstitutional amendments, the Prohibition Amend-ment and the Woman's Suffrage Amendment, havebeen recently adopted and the possibility of adoptingothers is under discussion. The amendments alreadyadopted not only practically increase Federal power,but the Prohibition Amendment also greatly increasesthe work of the Federal courts.

The result of this Federal legislation and Constitu-tional amendment is in the direction of greater uni-formity of the law. Whereas some states permittedwomen to vote and others did not, now all must grantthis right equally to men and women; where each statemade its own laws relating to the manufacture andsale of intoxicating liquors, now all are subject to Pro-hibition by reason of the constitutional amendment andthe Act of Congress adopted to enforce it. While Fed-eral legislation regulating interstate transportationand Federal anti-trust acts does not necessarily abro-gate state legislation on these subjects, nevertheless the

effect of the Federal legislation is greatly to restrainthe practical scope of the state laws, so that the Feci-eral law with its uniform operation in all parts of thecountry becomes more important than all the diversi-fied state enactments.

(4) Application of Uniform Law by the Federal Courts.

Another force leading to uniform law is the ap-plication of uniform law by the Federal courts. Bythis we mean not merely the application of the statutesadopted by Congress, but also the application of theprinciples of the common law in the decision of casesover which the Federal courts have jurisdiction becausethe controversy is between citizens of two or morestates.

Under our system of Federal and State courts theFederal courts in a state as well as the state courts arecharged with the duty of declaring what the law of thestate is in any case coming before them over whichthey have jurisdiction, and in so doing are not bound tofollow the decisions of the courts of the state. In theinterpretation of statutes, it is true, the Federal courtsdo act on the theory that they are practically bound bythe interpretation which has been given to a statute bythe highest court of the state, instances in which thoFederal courts have refused to follow the state court'sinterpretation of the state statutes being confined tocases where the Federal courts, after once following aparticular interpretation of a state statute by the high-est court of a state, have refused to adopt a later andconflicting interpretation by the state court.

The common law, however, is the common heritageof most of our states. True there is no Federal com-mon law. The common law is the customary law ofeach state considered separately. Theoretically thereis no reason why it should not vary among the states,

and as a matter of fact there is considerable variationi.Nevertheless when a state court makes an applicationof common law principles the judges of the courtusually regard themselves as applying principles whichprevail very generally in all states, and indeed amongalmost all English-speaking peoples. If a similar casearises in the Federal courts of the state and the Fed-eral judges believe that the state decision is wrong,their tendency to regard the common law as a generalsystem of jurisprudence, makes it difficult for them tofollow the state decision. In matters of general com-mercial law the United States Supreme Court has re-fused to do so. Even in matters pertaining to realproperty, torts and personal relations, where theFederal courts ordinarily follow the common law as de-clared by the court of the state, there are many caseswhere the particular questions raised in the Federalcourts have not been decided by the state courts of thatstate. The Federal courts in such cases naturally turnfor guidance to the decisions of other Federal courts,and especially to those of the Supreme Court of theUnited States. Thus even in non-commercial mattersthe very existence of a system of Federal courts operat-ing in all parts of the country having equal power withthe state courts to declare the law of each state is apotent force tending towards uniform law.

(5) National Law Schools.

A school which draws its students from all partsof the country may rightly be termed a national school.The name also applies to any school the aim of whichis to give to its students such a knowledge of the origin,growth and existing conditions of law in the UnitedStates, and such a mastery of the fundamental prin-ciples of our legal system, that on graduation they willbe fitted to perform effectually the services of a lawyer

in any state. A school which is not a national lawschool in the second sense would not be a national lawschool in the first. Students do not flock from all partsof the country to a school the principal aim of which isto prepare its graduates for practice in some one juris-diction.

On the other hand the principal aim of the facultymay be to give their students a knowledge of Americanlaw and an ability to handle as trained lawyers legalquestions, even though the great majority of the stu-dents may expect to practice in a particular state.There are only a few law schools which are nationalschools from both points of view, but in almost all partsof the country there are schools which, although theirstudents generally remain on graduation in the juris-diction in which the school is located, are neverthelessnational because of the nature of the legal trainingwhich they aim to give. Indeed, nearly all the lawschools belonging to the Association of American LawSchools, even those that do not draw their students froma large number of states, are in this second sense na-tional law schools.

The faculties of our national law schools are com-posed of lawyers who for the most part have devotedtheir lives to the study and exposition of law. Amongthem will be found specialists on specific legaltopics. The work done by one specialist in his subjectis known to all those teaching the subject. Moreover, inmany of these schools the instruction is based on thesame collections of selected cases. There is thus aninevitable trend in each school towards the discussionof similar questions in the teaching of any one topic.Year by year therefore the national law schools aresending into the profession highly trained men whohave passed through a more or less uniform legal edu-cational system, and in the more important legal sub-jects have come under the influence of the same ideas.

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As the lawyer and the judge, as well as the legislator,develop and mould the law, this unity of legal ideas isan important factor tending to make law uniform.

In this connection we may also mention a matterto which we shall have occasion to refer again, namely,the direct influence of the writings of leading profes-sors of law. This influence makes itself felt not onlythrough the collections of cases referred to above, butthrough the publication of learned articles, monographsand larger treatises. In the ever-growing mass of de-cisions and opinions the profession is becoming moreand more inclined to turn to the product of the schoolsfor the critical analysis of legal questions and for in-formed legal opinion.

(E) FACTORS PROMOTING GREATER CERTAINTYAND SIMPLICITY IN THE LAW AND ITS BET-TER ADAPTATION TO T~IE NEEDS OF LIFE.

(1) Effect of Influences Tending to Unify the Law.

As varying law in different jurisdictions is a causeof uncertainty and also of complexity, every influencetending to unify the law usually tends at least.indi-rectly to produce greater certainty and simplicity. Itis true that a Federal statute dealing with a subjectwhich has previously been dealt with by varying laws indifferent states, if its provisions are complicated andits sections badly drafted creates many new uncertain-ties. Nevertheless, even in an instance of this charac-ter the action of Congress provides one system insteadof many, and in time by amendment and court decisionthe number of uncertain legal questions will be reduced.

Apart from this indirect influence, some factorstending towards the unification of law also directly op-erate to produce greater certainty in the law of eachstate.

Thus the influence of the decisions in one state onthe common law of other states not only tends to unifythe law of the different states, but also tends to makelaw in each state more certain. In spite of the greatnumber of reported decisions in each state, even thereports of the courts of the older states, though con-taining a much larger body of common law than the re-ports of the newer states, are never in themselves thesource of a complete body of law. In each jurisdic-tion there is always at any one time a large numberof legal questions which have been passed on by thecourts of other states but not by the courts in that juris-diction. But since courts, when confronted by a legalquestion novel to them, pay attention to the action taken

by the courts of other states in similar cases, a lawyermay often give a competent opinion on a matter asto which the courts of his state have made no pro-nouncement.

Again, the principal value of some of the actsdrafted by the National Conference of Commissionerson Uniform State Laws, as the Partnership Act andthe Fraudulent Conveyance Act, is that they make cer-tain the law of each state which adopts them, ratherthan that their general adoption makes the law uni-form, though this of course is an important and desira-ble result. Where, as in the common law of partner-ship and in the interpretations of the statute of theThirteenth of Elizabeth on conveyances in fraud ofcreditors, there exists very great uncertainty in alljurisdictions, greater certainty is more important thanuniformity.

In the same way the work of our national lawschools not only tends, as we have seen, to unify law;it also tends to render more certain and clear the lawof each jurisdiction. This result is produced in thesame manner as greater uniformity in law is producedby the character of the legal education given the stu-dents in these schools and through the writings of themembers of their faculties. One cause of the uncer-tainty of the law is, as we have noted, a lack of agree-ment on the fundamental principles of the common law.Another cause is lack of precision in the use of legalterms. These defects are increased by loose and unin-formed legal thinking. Now, since it is true that withinlimits marked by general public policy our private lawis largely what the members of the legal professionmake it, and since their capacity for good.is depend-ent on their training, the education given in our na-tional schools of law, using that term as previously de-fined, coupled with the constantly widening influence

of the writings of distinguished professors of law, ismaking for better trained lawyers and for clearer andbetter-informed legal reasoning, and therefore is help-ing to lay the necessary foundation for greater cer-tainty and clarity in the law itself.

(2) The Recognition of the Necessity for the Employmentof Trained Legislative Draftsmen in the Preparation ofLegislation.

Another influence operating to produce greatercertainty and clarity in our law is the growing recogni-tion of the necessity of securing the services of expertdraftsmen in preparing statutes. Congress and manyof the state legislatures now have official draftsmen toassist legislative committees, and in some states moreor less highly organized legislative bureaus have beenestablished. As a result of the operation of theseagencies, and still more as a result of the general recog-nition of the fact that legislation drafted by those notexperienced in such work frequently fails to operate inthe manner intended, there has been considerable im-provement in recent years in the acts adopted by ourlegislatures, although further improvement is both pos-sible and desirable.

(3) The Activity of Legal, Scientific and Civic Bodies.

Because of the defects of particular branches ofthe law, for instance, criminal law or court organiza-tion, or because of the wide interest in those branches,bar associations or scientific legal associations, like theAmerican Institute of Criminal Law and Criminologyand the American Judicature Society, have undertakenscientific studies, which frequently result in the forma-tion and advocacy of definite plans for specific improve-ments. The American Judicature Society, for example,

after long study in which much valuable informationhas been gathered, has published an extensive plan forthe organization of state courts.

Many bar associations, taking their right place ascivric bodies, have drafted and urged the adoption, withmore or less success, of specific legislation and rulesof court. The work of this character done by bar asso-ciations sometimes relates to matters of substantivelaw, especially private law; but the most importantwork of these associations is being done in the field ofprocedure either through the revision or amendment ofprocedural statutes or codes or the formation of rulesof court.

(4) Net Results of Forces Making for Certainty andSimplicity.

We know that on the whole the law is becomingmore complicated because life is becoming more com-plex by reason of inventions and discoveries, commerce,and men's capacity to act in association with each other.Complications in law due to these factors, as we havealready stated, are necessary in that they can beavoided only at a sacrifice of justice. We have not suf-ficient data to determine whether unnecessary com-plications in the law are or are not on the increase, al-though, as we have seen, the recent efforts of courts andbar associations to simplify procedure have met withconsiderable success.

At any one time the net result of the forces makingfor or against uniformity or certainty or simplicity isnot the same in different branches of the law or indifferent parts of the same branch of law.

Legal history clearly discloses the fact that themethod by which both the common law and the law in-terpreting statutory provisions develops through thedecisions of the courts cannot be said to tend uniformly

either to greater certainty and to greater simplicityor to greater uncertainty and to greater complexity.Sometimes this common law process of legal develop-ment produces certainty but not simplicity. In the in-terpretation of statutes there is usually a steady ad-vance to greater certainty. Take, for example, theseventeenth section of the Statute of Frauds relatingto the goods, wares and merchandise, which seems whenfirst read a, clear and simple provision which may beeasily applied to such sales. Nevertheless innumerabledisputes over the exact meaning and proper applica-tion of the provisions of the section are found in therecords of English and American courts during the lasttwo and a half centuries. The net result, however, isthat whatever may be said of the complexity of theresults achieved, there is greater certainty now thanformerly in the law affected by the statute. This is dueto the fact that modern changes in business conditionshave not added to the number of novel legal questionsarising under the section, and most possible questionsas to its application, though once doubtful, are nowcertain.

On the other hand, there are whole branches ofthe law in which uncertainty is on the increase. Thisis apparently true, for instance, of the law relating tobusiness corporations. The inherent difficulty of manyof the legal questions in that. branch of the law, dueprincipally to the number of interests that must be con-sidered, has apparently prevented any agreement uponthe fundamental legal principles applicable to theirsolution; while the rapid increase in the number ofsuch corporations and the relative and absolute amountof business carried on in corporate form constantlytends to present novel questions. These questions,because of the lack of agreement on fundamental legalprinciples just referred to, are subject to conflicting

solutions in different jurisdictions or even in the samejurisdiction.

What is true of corporations is also true of the sub-ject of conflict of laws. The chaotic condition of thatbranch of the law shows no sign of improvement. Sotoo, from the days of Lord Mansfield in the last halfof the eighteenth century, an increasing confusion sur-rounded the nature of common law partnership and therights of the partner in specific partnership property.Both the English Partnership Act and the AmericanUniform Partnership Act were drafted primarily toend, if possible, these uncertainties which repeatedcourt decisions were not tending to settle.

It is thus not possible to assert with positivenessthat our law is growing daily more uncertain or dailymore certain. We can, however, affirm that, measuredby the actual injuries resulting, the law's uncertaintiesare very great, forming as they do a great obstacle tothe administration of justice. Furthermore, when wecompare the causes tending to produce uncertainty withthose at present working towards greater certainty, itappears at least probable that the forces tendingtowards uncertainty are destined to increase steadilyunless checked by some new influence. The rapidchanges in social and economic conditions make in-creasingly operative those two great sources of uncer-tainty-the lack of fundamental agreement in the prin-ciples of the common law and the number and impor-tance of novel legal questions. Furthermore, the vastincrease in the number of cases decided each year tendsto bring about a condition where the very number ofthe authorities that have to be consulted in order accu-rately to ascertain the law is so great that carefulconsideration of them is practically impossible. Thesystem of developing law by the application of priorprecedent in later similar cases thus tends to becomemore and more difficult to operate.