Law: Juristic Elders

In March 1922, William Draper Lewis, longtime (1896-1914) dean of the University of Pennsylvania’s Law School, called on the late great Elihu Root with a plan which he and Harvard’s Joseph Henry Beale had discussed for years: the establishment of a law clinic charged with the monumental task of restating the principles of law. By February 1923 wise old Mr. Root had vitalized the idea, secured from the Carnegie Corp. an initial $1,000,000 appropriation to organize the American Law Institute. He became its first president. Professor Lewis its director. To Benjamin Nathan Cardozo, then an associate judge of New York’s Court of Appeals, creation of the A. L. I. signalized “to the world that laissez faire in law is going or has gone the way of laissez faire in economics.”

Its membership limited to 750, the American Law Institute admits automatically only U. S. Supreme Court justices, senior judges of each of the ten U. S. Circuit Courts of Appeals and the presiding judges of State courts of last resort. Lawyers, law professors and other judges must be elected. Currently membership in this most austere and respected of legalistic deliberative bodies is only 702, despite a waiting list. Members who miss more than two annual meetings in a row are dropped.

Strictly nonpolitical, the A. L. I. nevertheless last week was the field for one more joust in a historic political quarrel. Every newshawk assigned to Washington’s swank Mayflower Hotel knew that a letter of greeting from Franklin Roosevelt would be read to the Institute’s 15th annual meeting, and that Chief Justice Charles Evans Hughes would address some “informal remarks.” They expected that Mr. Hughes would mention the work of the Supreme Court. Overt conflict over the President’s plan to rejuvenate the Supreme Court would naturally be as remote as the conflict in ideology was near.

Stewardship Questioned, No member of the American Law Institute, Lawyer Roosevelt as President of the U. S. wrote: “Today our stewardship as lawyers is being Questioned. The laymen of America are not, perhaps, quite so disposed to make a complete delegation of law matters to law men. At least, the layman asserts his right to evaluate us. Law scholars, law practitioners, lawmakers, law administrators, and law interpreters have the stage today. . . . They must play their roles before an intense and sometime critical audience.

“But this is well. The virtue of the common law was its adaptability to growth and improvement. In generations present and future the lawyer likewise will be measured by the same test.”

Society’s Choice. Chief Justice Hughes began his speech with a tribute to Elihu Root as the one who made possible the work of the American Law Institute in restating the common law to match the times. It was not until the last 150 words of his speech that the Chief Justice pointed his remarks on the up-to-date state of the Court and improvements in Court procedure since 1891 with a ringing plea for an independent judiciary. Orated he:

“The success of democratic institutions lies in the success of the processes of reason as opposed to the tyranny of force. Between these society must choose. If society chooses the processes of reason, it must maintain the institutions which embody those processes. Institutions for the exercise of the lawmaking power and for the execution of laws must have their fitting complement in institutions for the interpretation and application of laws . . . through a competent and independent judiciary. The firm and true administration of justice is thus the primary concern of civilized society. . . .”

Vigorous applause greeted the finish of Mr. Hughes’s first out-of-Court statement on the affairs of the Court since his letter to Montana’s Senator Wheeler in opposition to the President’s Plan six weeks ago. Then the Institute’s president, polished George Wharton Pepper, one-time Senator from Pennsylvania, rapped for order and the business at hand was taken up.

Restatement of Laws. Since the A. L. I. was founded, eleven volumes have been published on the Restatement of Contracts, Torts and Conflict of Laws and the work on two others is clone. Restatement sets forth as nearly as can be the law as it is. But still, the law is in places defective in that it does not correspond with current ideas of justice and the needs of life. There are, for example, laws relating to liability, but modern aviation has made it necessary to correct omissions by the passage of statutes.

Last week the Institute received the proposed draft of a Law of Airflight which, if adopted by the 48 States and the District of Columbia, would enable an injured passenger or spectator to present uncontroverted claims in such a crash as that of the Hindenburg. Owners of aircraft would be liable, regardless of negligence, for personal injury or death to paying passengers or spectators on the ground up to $10,000 in damages. Present laws make it necessary to establish negligence.