docket compels other justices to work overtime and yet leave controversies undetermined. Furthermore, it is impossible to differentiate in functions so as to give a judge who is a specialist in some particular branch of the law an opportunity to use his ability where it would count most. Judges must often cover all branches of the law and decide every variety of controversy, a condition which encourages superficiality and entails a great waste of effort.

The Selection and Retiring of Judges.-The ordinary method of selecting judges in the states is by the ballot and by a system of nomination which places the original choice in the hands of party organizations. Though the character and ability of judges selected under this system have been, on the whole, remarkably satisfactory, it is nevertheless true that the elective system does not secure the best men available for the position of judge. It is generally considered that the best state courts in the United States are those in which the judiciary has been appointed, and the appointive feature of the Federal judiciary is almost universally commended. If a well-guarded appointive system can be provided in which experience, training, and merit count, it is conceded that this is the best method of securing judges.

Under the American system, it is exceedingly difficult to retire judges whose unfitness has become even notorious. The method of impeachment has been found unsatisfactory because it is tco slow and cumbersome. The proposed remedy for this difficulty is to appoint judges for a long term and to put into operation a system of recall with a sufficiently high percentage that a judge could be recalled only in case of flagrant abuse of power, or for other reasons which would take from him the confidence and support of a large majority of the electors.1

Our law has frequently been interpreted and applied in

1See American Judicature Society Bulletin, no. x, on "The Selection, Tenure, and Retirement of Judges," by James Parker Hall, and no. vi, on "Methods of Selecting and Retiring Judges," by Albert M. Kales.

the United States by what has been termed a lay judiciaryi.e., men called to the bench from politics or other walks of life. It was formerly the custom to elevate laymen to the position of judge, and the practice still continues in our inferior courts, so that not infrequently a man whose training and experience have been almost wholly in other fields is called to one of our higher courts. Two of the greatest chief justices of the Supreme Court were taken directly from political positions. Owing to the unsatisfactory method of selecting judges and certain marked defects in legal training, a noted legal scholar, after reading thousands of judicial decisions, sums up his impressions of the composite trait of a typical court of the United States under the following headings:

1. Lack of acquaintance with legal science. 2. Lack of acquaintance with legal history.

3. The philosophy and jurisprudence of the law are unknown.1

When frontier and primitive conditions prevailed, a physician, baker, merchant, or perchance a lawyer with little knowledge of legal history, of legal science, or of the philosophy of the law might secure enough of a working basis of the technicalities of the law to decide ordinary controversies on a basis of relative fairness and justice. In the early history of the United States, judges and other judicial officers who knew little law determined controversies by means of moral principles and by the common standards of justice which prevailed in the community concerned. But with the growing complexity of modern life and of the law itself, adequate training in legal history and in legal science is indispensable, and it is also imperative that judges have preliminary experience in the practice and technic of deciding cases. Law has become such a science and profession that no longer can the protection of fundamental rights and privileges be turned over to those who, after lingering a few years around a 1 J. H. Wigmore, "The Qualities of Current Judicial Decisions," Illinois Law Review, vol. ix, p. 529.

lawyer's office, pass a perfunctory examination in legal lore and then secure their education at the expense of unfortunate clients. Fortunately, the entrance to the legal profession is becoming more difficult in all states, and the preparation for the bench should require, as it now does in some advanced nations, specialized preparation and experience.

Much time and constructive thought have been given to the reform of executive and legislative machinery in cities, counties, and states. And substantial progress has been made in the adoption of the short ballot, the commission form of government for cities, civil-service reform, a budget system, and the reorganization of the administrative departments of state government. It is only within recent years that similar attention has been given to the reform of the machinery for the administration of justice. To realize that reform and reconstruction are necessary in judicial procedure we need only turn to the testimony of legal specialists.

CRITICISMS OF PRESENT METHODS OF ADMINISTERING

JUSTICE

In 1906 Roscoe Pound delivered before the American Bar Association an epoch-making address on "The Causes of Popular Dissatisfaction with the Administration of Justice." At this time many lawyers were unwilling to admit that there were any serious defects in the administration of justice. But evidence has been accumulating to the effect that

.. the administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the door of the courts to the poor and has caused a gross denial of justice in all parts of the country to millions of persons.1

R. H. Smith, "Justice and the Poor," Bulletin of the Carnegie Foundation for the Advancement of Teaching, no. xiiii (1919), pp. 7–8.

In the words of Dean Pound,

Our system of courts is archaic and our procedure behind the times. Uncertainty, delay, and expense, and, above all, the injustice of deciding cases upon points of practice, which are the mere etiquette of justice— direct results of the organization of our courts, and the backwardness of our procedure-have created a deep-seated desire to keep out of court, right or wrong, on the part of every sensible business man in the community.

According to the Secretary of the American Judicature Society (an organization interested in judicial reform), “it is no secret that promptness and certainty of conviction constitute the most effective deterrent to crime. But our courts yield neither promptness nor certainty."1 Moreover,

We have made it altogether too easy to get into court and quite difficult to get out of court. In every large city, there is a host of lawyers and would-be lawyers hungry and ready for business; and while the high-minded attorney strives to keep his client out of court and seeks to serve him with all honorable means at his command, there is a large number of those who encourage litigation and derive their fattest fees from the very entanglements into which they thrust their clients. And when you add to these lawyers the ambulance chaser, the runner, the officer, the collector, and the constable, you have a veritable army lying in wait for clients and lawsuits.2

Despite noteworthy reforms already accomplished in one of our greatest states, a special committee reported in 1917 that "there still exist anomalies, duplications of effort, unnecessary cogs in the judicial machine creating friction, arresting the prompt and expeditious functioning of the machine," which condition leads to the indictment that the administration of justice does not progress so as to conform to modern conditions.

These strictures on the system of courts and the adminis

Herbert Harley, Journal of American Judicature Society, vol. iii, no. i (June, 1919), p. 7.

2 Judge Manuel Levine, "The Conciliation Court of Cleveland," American Judicature Society Bulletin, no. viii (April, 1915), p. 5; for illustrations of denial of justice because of defects in the administration of justice, consult Smith, "Justice and the Poor," chap. ii.

tration of justice with many others from the reports of bar associations and law journals would be very discouraging and would seriously undermine the security and integrity of our judicial system, were it not that the remedy is apparent and in many instances easily applied, and were it not that a beginning has been made toward correcting some of the most serious defects. Before undertaking a consideration of the steps in judicial reform, it will be necessary to review briefly some of the obvious defects which have helped to render the administration of justice ineffective and unsatisfactory.

Defects in Methods of Judicial Administration.-Certain defects in the methods of administering justice have become so pronounced as to call forth serious criticisms. It is possible to present only a mere outline of the defects which have occasioned the greatest objections. Among these defects is the difficulty involved in the mechanical operation of the law. In this regard, frequent application of technical rules results in a denial of justice. The tendency of law is to become fixed and crystallized into settled rules which apply unreasonably or unfairly in concrete cases. In European countries it is customary to give the judge discretion to decide contrary to the rule when it is necessary to do so in order to give justice. In France, judges are forbidden to lay down general rules of conduct or to decide cases by holding that they are governed by previous decisions. This principle tends to take away the emphasis upon precedent and technical rules which at times bind the judges too strictly in the United States.

Another difficulty is involved in the practice which encourages appeal of cases on slight technicalities. Appeals mean delay and additional expense. Delay frequently results in the formulation of a device by which the guilty may escape. Liberality of appeal is favorable to the rich man and to corporations. The expenses of appeal to the supreme court of a state and of the United States are very great; accordingly, only the wealthy, the corporate inter