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Page 21 text:
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'vf-7 7 , 'fig 'fin' - W it ,fn f . i ig i Finally We have the jury system which makes possible in many cases a disregard for technicalities and even for evidence. The effect is some- times chaotic, although the result frequently is a closer approach to the average man's view of what is right than a judge would feel at liberty to grant. The power of juries has been jealously guarded. Our state con- stitution forbids the re-examination of any fact tried by a jury unless the court can affirmatively say that there is no evidence to support the verdict. There is even pending in Congress a bill to take away from Federal judges the right to comment to the jury on the merits of the evidence. What, then, is the conclusion of the matter? No single method of ad- ministering justice can ever hope to meet with universal satisfaction. Like the Greeks of old all we can do is to strive for an ideal,-ever learning, but never able to come to a knowledge of the truth. ' ,fx -P -A K Tl1i1'lm'11
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Page 20 text:
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' .gif f ij' , 'l r l 'Q both have a rule and liberty to break that rule whenever it seems to work a hardship. What has been the result of this conflict between certainty and indi- vidual justice? It has suggested that the rules established by the courts are but the formulations of the customs and mores of the community. These customs, however, have been dictated by a relatively small section of the people. The disabilities imposed by the common law upon married women certainly did not reflect the wishes of that sex. The implied condi- tion in contract law of work before pay can be traced to the dominance of the employing class, while today with a shifting of power, labor unions may combine in a manner denied capital. Holmes in his Common Law pro- claims that the life of the law has not been logic 3 it has been experience, and you have been referred in your courses to tendencies all along the line from formalism to informality, and yet we must admit that the progress has been slow. Covenants in a lease are still regarded as independent, and the tenant when sued for rent cannot defend on the ground that the land- lord has failed to make promised repairs. So, in spite of the custom of merchants, bills of lading and stock certificates have only been made nego- tiable by statute. Legislation has usually been the only way to effect a rapid change. For several other means have appeared for relieving the rigidity of the law. Equity was created for that very purpose, and it was suggested by its early critics that the measure of the Chancellor's conscience was apt to be as uncertain as the length of his foot, but even in equity there has been a hardening of the rules, so that in many cases no relief is granted. The tendency of time is to provide increasing precedents for legal action which in turn points to greater certainty of' decision. There is, however, a tre- mendous loophole in the attitude frequently taken by courts that the facts of a particular case take it out of the control of precedent. Sometimes the reasoning sounds artificial, sometimes it is based on a fragmentary state- ment of fact, and sometimes the decision is not dignified by any reason. lt has been aptly said that hard cases make bad law. A departure from rules of law administered by the courts is found in the growth of administrative boards, such as the Industrial Accident Com- mission and the Public Service Commission, the members of which enforce their views of-what under particular circumstances is fair, sometimes with little regard to established rules. .xi I 1 -l ,L Twelve
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