REVIEWS
| Published date | 01 May 1957 |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00445.x |
| Date | 01 May 1957 |
REVIEWS
THE
CHALLENGE
OF
LAW REFORM.
By
ARTBUR
T.
VANDERBILT.
[London: Oxford University
Press.
1955.
vii
and
194
pp.
28s.
net.]
CHIEF
Justice Vanderbilt is one of the most distinguished of the not
inconsiderable number bf American jurists who have combined experience
and distinction in the world of law teaching with that of practice and high
judicial office. Such men
as
Stone, Frankfurter, Vanderbilt, Roberts, Clark
and others have not only added to their own stature by the combination of
academic and practical experience in eminent positions. What is, perhaps,
more important, they have immensely added to the development and stature
of American law. In this respect, English lawyers might well look with envy
to the United States, for in the United Kingdom,
at
least-though far less
SO
in some of the British Dominions-the separation between the practical
and the academic side of the legal profession
is
unfortunately
still
regarded
as
fairly rigid.
The present small book is evidence of
a
felicitous combination of theoretical
learning and academic experience with active responsibility for the administra-
tion of justice. When Dean Vanderbilt of the New York University School
of Law became Chief Justice of New Jersey in
1948,
that Statesmall in
territory but fifth in population, and the second most industrialised
State
of the Union-had long, in the
sorry
company of the majority of the other
forty-seven States, left its administration of justice
in
a
deplorable
state.
Although one of the few States
in
which judges were appointed, not elected,
its procedure had become tardy and cumbrous, with delays of two, three
or
even four years in handing down decisions,
a
common experience.’ In
1947,
the State of New Jersey “over the opposition of
all
but
a
handful of judges
and lawyers, and without any support
of
a
single Bar Association,
.
. .
adopted
a
new Constitution by
a
vote of
Q
to
1
creating
a
streamlined judicial
establishment.”
The story of this book is largely
a
concise account of the judicial reforms
dected in the last six years following the adoption of the new Constitution
in New Jersey.
It
is, however, flanked by an introductory Chapter on the
basic deficiencies
of
the American judicial system, and
a
concluding Chapter
on the need for substantive law reform.
Like the great majority of the leaders of the American legal profession,
Chief Justice Vanderbilt is strongly opposed to the elective system which pre-
vails in the great majority of the States. This goes back,
as
he points out in
a
brief historical sketch, to the Jacksonian egalitarian revolution against
aristocracy and any form of entrenched power,
a
revolution strengthened by
the decision in
Mavhy
v.
Madison,
by which the Supreme Court claimed the
power
to
judge the constitutionality of Congressional statutes. The almost
universal changeover from an appointed to an elective system-except for
the Federal Judiciaq-is one of the most unfortunate products of
a
mi5
understood conception of democracy. Today,
all
judges are elected in thirty-
six States (by popular vote). In four States judges
are
selected by the
legislature; in five, they are appointed by the Executive, subject
to
confirmation;
1
According
to
fipires gathered in
1954
by
the Institute
of
Judicial Administration
at New York University,
a
jury
case has
to
wait from
37
to
49
months in
different densely populated counties of New York State. In many other States,
delaya
are
not much less.
292
MAY
1967
REVIEWS
293
in two States, Appellate Judges are appointed, while the others are elected;
in one, Trial Judges are appointed by the Executive, and the other judges by
popular
or
legislative vote. In the State of New York, the elective system
was introduced in
1846,
and it still prevails.
It
is, on the whole,
a
sorry farce
of democracy.
It
has become entirely a matter of political party manipulation.
Every now and then a populace, indifferent to or ignorant of the qualities and
often even the names of the judges elected
as
much by default as by positive
vote, chooses
its
judiciary. A mitigating factor is that
a
considerable
pro-
portion of judges are appointed by the Executive between terms, as vacancies
occur, and often retain their position by election. Altogether, as Chief Justice
Vanderbilt and many others put it,
it
is
a
wonder that with such
a
system,
there are as many good judges as do, in fact, hold office. At the same time,
there is no question in the mind of any serious student of the American legal
scene that the elective system has, on the whole, debased the average quality
of the American judiciary, and that it enmeshes the judge deeply in the
intricate and often unsavoury game of party politics. More than once, Chief
Justice Vanderbilt points with envy to the methods of appointment and the
general professional standing of the British judiciary.
However, the chief interest of the book does not lie in the attack on the
deficiencies of the methods of appointing judges (and, indeed, juries, which,
in the United States,
still
play an excessively large part, especially in civil
cases), but in the concrete proposals for the improvement of the administration
of justice against the background of New Jersey experience. Not all the
reforms for which Chief Justice Vanderbilt has mainly been responsible and of
which he is the principal executant in New Jersey, will be to everybody’s
taste.
They involve
a
degree of discipline over the judges which might well
be resented by those who have strong views on the complete and (at least, in
the British tradition) august independence and aloofness
of
the judge. There
is,
however, little doubt that, in the balance, the gain in efficiency greatly
outweighs certain dangers
of
administrative policing. The gist of the New
Jersey reform is the simplification of the judicial system, now consisting of
three levels of courts:
a
local court of limited civil and criminal jurisdiction,
8
trial
court of general State-wide jurisdiction, and an appellate court
or
courts. Another aspect of the reform is emphasis on specialisation. Judges
are assigned to the kind of traditional business in which they excel. As Chief
Justice Vanderbilt puts it: “Some very good trial judges shudder at the
thought of opinion-writing, some very good equity judges shrink from working
with the jury.
. . .”
Third and, perhaps, most important of all, there is strict supervision by
the Chief Justice and his deputies on the equalisation of burden between the
different courts. Weekly reports are submitted on the cases despatched, on
the list, and even the hours spent on the Bench.* Another most important
reform is the creation of an administrative office which assists the Chief
Justice in the exercise of his administrative functions. This office, under an
administrative director, receives and analyses the weekly reports which come
from
all
the courts of the State, and prepares summaries for the Chief Justice
and the associate Justices of the Supreme Court. As
a
result of these reports,
judges are often transferred from one division to another. The office also
handles fiscal and business affairs and is responsible for public relations.
It
deals with proposals, complaints, requests, that come from the public, laymen
and lawyers alike. The administrative Director
also
acts
as
Secretary to the
Judicial Conference, which takes place regularly.
A
mere streamlining of administration would not help, especially in the
2
This would, perhaps, be more unacceptable than any other aspect of the New
Jersey reform for British judges, but we must not forget the different tradition
and standing of the British judiciary. The Federal judiciary, appointive, and
generally preferred to state posts despite lower salaries by the ablest lawyers,
cornea nearest
to
the British judiciary in standing and public esteem.
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