The New York Law Revision Commission
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01042.x |
| Date | 01 January 1965 |
| Author | John W. MacDonald |
| Published date | 01 January 1965 |
THE
MODERN LAW REVIEW
Volume
28
January
1965
No.
1
THE
NEW
YORK
LAW
REVISION COMMISSION
I.
INTRODUCTION
AMERICAN
law, based as it is on the English common law-an
unwritten law-is flexible, resting on fundamental principles of
justice and right. Its flexibility has helped to make it enduring,
but it is this quality also that allows of, and indeed requires at
times, revision to bring the law into line with modern conditions.
Outmoded rules call for change and anachronisms need correction.
Of
course the law which governs an organised society is written
as
well
as
unwritten-the statute law enacted by legislature and
the case which applies general principles, rules, standards and
doctrines in the light of the facts of the particular case before the
court.
A
necessary adjunct of the development of decisional law
in common law countries has been the evolution of the doctrine
of
stare
decisis-adherence to judicial precedent. This doctrine has
not attained the status of
an
absolute rule in the United
state^,^
but
it has served to take the capricious element out of the law and give
it stability and a considerable measure
of
~ertainty.~ And yet at
the same time the rule of
stare
decisis has hampered the judges
when the binding force of a prior decision leads to an undesirable
result because it no longer fits existing circumstances. Courts are
reluctant
to
overrule earlier decisions long established,
or
to extend
old doctrines to meet new situations-at least not without legislative
1
Stone,
"
The Common Law
in
the United States
"
(1936) 50
Harv.L.R.
4,
12,
discussing the supremacy
of
statutes over judge-made law.
2
Pound,
"
Hierarchy
of
Sources and Forms
in
Different Systems
of
Law
"
(1933)
7
Tulane L.R.
475.
8
Jackson,
I'
Decisional Law and
Stare
Decists
"
(1944) 30
A.B.A.J.
334;
also
found
in
(1945) 19
C0nn.B.J.
2.
And
see
generally
also,
Sprecher,
"The
Development
of
the Doctrine
of
Stale
Decasis
and the Extent to Which it
Should be Applied
"
(1945) 31
A.B.A.J.
501-504.
4
So
said Mr. Justice Douglas
of
the Supreme Court
of
the United States when
delivering the Eighth Annual Benjamin
N.
Cardozo Lecture before the
Association
of
the Bar
of
the City
of
New York, April
12, 1949,
reported
(1949)
49
Columbia L.R.
735, 737.
1
VOL.
28
1
2
THE
MODERN LAW REVIEW
VOL.
28
help.5
It
is within the power of the legislature to intervene to alter
or amend an offending rule
or
to afford relief through the creation
of new law. But legislatures are preoccupied with political affairs
and with public law problems
so
they have neither the awareness
nor the time to devote to a review of private law and the changes
needed there.6 And there is,
in
most cases, no one to inform them,
no
group
or
agency charged with this responsibility.7
Recognition
of
the Need
for
Law
Revision
Leading jurists, both in the British Commonwealth and the United
States have recognised the need for a continuing body to serve as
liaison between the courts and the legislature-to observe the
operation of the judicial process and to make recommendations to
the legislature whenever the need arises. None has expressed the
need more aptly than Lord Westbury in England and
Mr.
Justice
Cardozo in the United States.
The words of Lord Chancellor Westbury, uttered more than
a
hundred years ago,8 and well before the expression of the American
view, seem prophetic
:
''
The first thing, then, that strikes every member of
our
profession who directs his mind beyond the daily practical
necessity of the cases which come before him is, that we have
no
machinery for noting, arranging, genwalising, and deducing
conclusions from the observations which every scientific mind
could naturally make
on
the way in which the law is worked in
the country.
.
. .
Take any particular department of the common
law-take, if you please, any particular statute. Why is there
not a body of men in this country whose duty
it
is
to collect
a
body of judicial statistics,
or,
in
more common phrase, make the
necessary experiments to see how far the law
is
fitted to the
exigencies of society, the necessities of the times, the growth of
wealth, and the progress of mankind
?
.
.
."
-a
Lord Westbury said also that the lack of any person
or
group con-
cerned with
"
observing the effect of the law," prevents advances
in legal science, and he urged that it be the duty of a body of men
5
Fuld, "The Commis$on and the Courts"
(1955) 40
Cornell L.Q.
646, 647;
Pasley, in a Note, Jurisprudence: Legal History: Ministry
of
Justice
"
(1935) 20
Cornell L.Q.
119.
6
"
The legislature undoubtedly has the power to provide the necessary remedy
in these situations in which the courts feel themselves powerless to act. The
legislature, however, is predominantly occupied Kith matters of public law and
policy problems affecting the state government, and it may have neither the
time nor the facilities to undertake the systematic and scientific revision
of
the large body
of
private law." Fuld,
supra,
note
5.
at
p.
648.
7
See discussion
of
the need for information in the legislative ,process
in
MacDonald,
"
Legal Research Translated into Legislative Action
(1963) 48
Cornell L.Q.
401,
402-405.
8
Before Lord Westbury became Lord Chancellor he advocated the establishment
of
a
Department
of
a
Ministry
of
Public Justice
in
an address given upon
vacating the office of President
of
the Juridical Society, February
21. 1859.
See
(1859) 2
Juridical Society Papers,
129, 131.
9
(1859) 2
Juridical Society Papers,
129, 132.
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