Law: Bar to Boston

Each year the American Bar Association meets to survey the state of U. S. Law, to suggest, usually without effect, many a far-reaching reform therein. When 3,200 members gathered in Boston’s Symphony Hall for A.B.A.’s 59th convention last week they began their reforming at home. Adopted promptly and without amendment was a new A.B.A. constitution, 20 years in the making, designed to bolster A.B.A.’s prestige, increase its 27,500 membership by binding it to the Bar Associations of the 48 states which together enroll 100,000 of the nation’s 175,000 lawyers.

Hitherto A.B.A. officers have been chosen, A.B.A. policies dictated, by the handful of members who turned up at the annual conventions. Hereafter A.B.A. will be ruled by a House of Delegates, chosen by the state and local Bar Associations and by A.B.A. members every where. It is hoped that the national organization may thus become what it has never been in the past: the responsible voice of the U. S. legal profession. Exulted Dean Roscoe Pound of Harvard’s Law School: “A new chapter in this country’s legal history.”

First job of the first House of 160 Delegates was to elect a new president. Chosen unanimously was short, sturdy Frederick Harold (“Hal”) Stinchfield, onetime Bates College footballer, now senior member of the Minneapolis law firm of Stinchfield, Mackall, Crounse, McNally & Moore. President Stinchfield greeted newshawks in a white dinner jacket, royal blue vest. Less radical in politics, he is on the legal advisory board of the American Liberty League.

Reorganized A.B.A. meanwhile shuttled between assemblies and its eleven special sections, heard 122 speeches and reports on professional problems. Two vents interested legalists most deeply:

Procedure— Last year the U. S. Supreme Court appointed a committee headed by Herbert Hoover’s Attorney General William DeWitt Mitchell to recommend and codify a new system of procedure for Federal Courts. Last week Lawyer Mitchell turned up before A.B.A. to make known the results of his year-long job.

Nub of Lawyer Mitchell’s recommendations was that Federal practice would be simplified if the courts were allowed to adopt their own rules for the conduct of litigation, rather than have them fixed, as at present, by statute. Evidence in possession of one litigant might be readily obtained by his opponent. Bench & bar, declared Lawyer Mitchell, could by these reforms make it easier and cheaper for litigants to appeal.

Snapped white-haired Judge Edward Ridley Finch of New York State’s well-clogged Court of Appeals: “Any advantage in simplifying procedure might be outweighed by the aid given to the nuisance value of unfounded litigation. . . . Even now it is less expensive to settle a lawsuit than to defend it. … The attorney for the plaintiff may limit his charges to a part, or perhaps all, of the amount recovered, but a defendant has no such refuge. The more examinations and applications to a court a plaintiff may make, the greater is the nuisance value.” More to the point, thought Judge Finch, would be ‘devaluating the costs recoverable by ‘the defendant in the event of his success so that they will to some reasonable extent compensate [him] for the expense to which he has been put. . . . Let’s help the defendant, not the plaintiff.”

Cried Dean Emeritus John Henry Wigmore of Northwestern University’s Law School: “The Mitchell report is the most important event in 100 years of Federal justice. But,” added this great authority on the law of evidence, “it should have restated the rules of evidence. . . . The law of evidence in our Federal Courts … is inferior to that of any of the 50 States and Territories—not only inferior but far inferior.” Despite this weighty endorsement most A.B.A. delegates received the Mitchell report without comment.

Publicity. Stench in the nostrils of most conscientious U. S. citizens is the confirmed U. S. practice of trying cases in the newspapers and on the radio while they are still sub judice in the courtroom. The 1934-35 trial of Bruno Richard Hauptmann carried the practice to almost unbelievable lengths. A.B.A., convening in Los Angeles last year, withheld indignant comment only because the trial was still sub judice. Last week a special Committee of the Criminal Law Section headed by onetime Minnesota Supreme Court Justice Oscar Hallam, felt free to let off steam.

“Repugnant,” cracked Lawyer Hallam at New Jersey’s Governor Harold Hoffman, “was the spectacle of a member of a . . . board of pardons going about searching for evidence . . . indulging in public discussion on the merits of the case established in court, voicing doubts as to the prisoner’s guilt, arguing out alleged weaknesses in the State’s case, all in advance … of the termination of the criminal proceeding in court.” Denounced were the use of press or cinema cameras and the introduction of broadcasting apparatus in the courtroom, post-trial “vaudeville appearances” by jurors.

Owl-silent in the committee chamber sat Hauptmann’s prosecutor, New Jersey’s Attorney General David T. Wilentz. When the Hallam report was released to news hawks, A.B.A.’s retiring President William Lynn Ransom, who with Newton Diehl Baker has been trying to convert the Press amicably, exploded: “Unauthorized, irregular, and improper!”

Politics. Scratch a lawyer and find a politician is an adage never truer than when A.B.A. meets in a Presidential year. Two years ago A.B.A. appointed Charles Phelps Taft II and six other members to a committee to report on Federal Legislation as Affecting the Rights and Liberties of U. S. Citizens. Since then that sober young Cincinnati lawyer and son of the 27th President has become a prime cam paign adviser to Alf M. Landon (TIME, Aug. 3). Last week that fact was quite apparent when his committee’s report read like one of Nominee Landon’s campaign speeches. High spots:

Constitution. “One who would preserve our constitutional system must deplore the action of President Roosevelt in recommending that members of Congress set aside any doubts they might have about the validity of proposed legislation. . . .* “There is no indication that the Administration recognizes any obligation what ever to protect the individual citizen in his constitutional rights.”

NRA. “The local code authorities were small bodies of men actively engaged in business. … In numerous instances they levied ‘fines’ on nonconforming competitors and enforced payment by threats to procure prosecution by the Federal authorities … a practice which falls within the common law definition of blackmail.”

TVA. “When the political dictatorship of Soviet Russia decided to ‘liquidate’ the private business enterprise . . . one of its most effective methods was to open state shops alongside those privately operated, and by simple competition crush the latter. . . . Numerous Federal power projects are under construction which are designed to displace existing private enterprises or to impose upon them a control which the Federal Government has no power to impose directly.”

Concluded the Taft Committee’s majority report: “If the people become indifferent and exhibit that indifference by the election of a national government which seeks ways not to observe but to avoid the limitations of the Constitution, those limitations will vanish. No court can then preserve the Constitution which the people themselves have deserted.”

Confronted by the majority’s invitation to adopt the report and thus in effect put A.B.A. in Republican Landon’s camp, a minority of three asked the delegates to dissolve the Committee. Instead delegates accepted the suggestion of A.B.A.’s Secretary William Patterson MacCracken Jr., Calvin Coolidge’s Assistant Secretary of Commerce for Aeronautics, that they need not adopt the report unless it made “specific recommendations.” They did not.

*A reference to President Roosevelt’s advice to Congress to pass the Guffey Coal Bill, regardless of whether they had doubts of its constitutionality or not (TIME, July 15, 1935).