University of Nebraska College of Law - Yearbook (Lincoln, NE)

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produced fictions--an apparent law of one tenor, and an actual law of another. W'ith us, there is, perhaps as yet no resultant fiction. But our well-known phenomenon, the dead-letter statute, is some- thing very like one. In truth, all departments of law are strained and warped by such a contlict between the reason of the law and the reason of important portions of society. Today, one part of the community strain their oaths in the jury-box and Find verdicts against corporations in the teeth of law and evidence, to vindicate their personal notions of justice, the other retain lawyers by the year to advise them how to evade what to them are unintelligent and unreasonable restrictions upon necessary modes of doing busi- ness. Eloquent advocates exert their talents to incite the one. Diligent and acute Scholars in the law put arth their best energies to assist the other. Thus it comes about that the law is one thing and the practice another, and that a respectable man convicted of violating the land laws of the United States can tell us, I doubt not in good faith, that he meant no ill, and did what every one was doing without consciousness of wrong. VVe laugh at the Roman who could only sue for vines cut down under the liction that they were treesg at the Englishman of john's day who, to recover for deceit practiced by his landlady, had to allege that she sold him beer by a false measure with force and arms and in breach of the King's peacevg at the declaration in trover, with its allegation ot the casual finding of, say, a thousand tons ot pig iron, at the procedure in ejectment, with its fictitious lease, fictitious plaintiff and fictitious defendant. But our modern American race to beat and evade the law, brought about by like causes, is producing like results. 7 This race in beating the law is furthered by what Professor Wfigmore calls the sporting theory' of justice, characteristic of our contentious procedure, which makes the law a game with prizes for the most astute player or the most determined bluffer. Neither the players who take part in such a game nor the public who witness it can be expected to have much respect for it. just as the protes- sional football coach, in order to win at any cost, coached his play- ers in systematic violations of the rules, the lawyer-coach coaches his client in the tricks of the great game. I remember once seeing a successful business man watching a trial in which he was interested. As objections to evidence were made in the usual machine-gun style, his eyes sparkled. He turned to me and whispered, My God, Pound, just watch him take his ex- ceptions. We must not be surprised that business men who ac- 77

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mate terms with his Creator and can expound I-Iis will offhand on all occasions, the man who thinks the administration of justice the simplest of matters, which any one can carry on by the light of nature,-all these in all times swell a chorus of harmless complaint against even the best of legal systems. But we should not be de- ceived by this innocuous and inevitable outcry against all law into overlooking or underrating the real and serious lack of respect for law which exists in America. A philosopher defined law as the external conditions of life measured by reason. If the current disrespect for law meant dis- respect for reason, if it meant that the people were unwilling to measure their relations with each other by reason, but sought to leave them to cat 'ce and the chance impulse of the moment, it would be a serious phenomenon indeed. But, serious as disrespect for the law must always be, I am persuaded the present attitude of the public toward the law is not of this sort. I believe it a normal phenomenon in legal history, a necessary incident of a period of transition to enacted law. So far from rejecting reason, the people are endeavoring to reason. But they are not agreed, and as they are many and the law is one, the law can not accord with all of them. The reasons of conflicting interests in the community con- Hict with each other, and each conflicts with the reason of the past, embodied in the common law, and the reason of the whole people, as embodied in the statutes. For instance, the ultra-individualism of our common law, to which our ancestors were attached so stead- fastly, conflicts with the reason and with the interests of two of the dominant classes of modern society. In its insistence on freedom of contract, on individual freedom to work as, and as long as, one chooses, and on individual responsibility forthe risk of employ- ment, it confiicts with the reason and with the interest of laborers. In its insistence on competition at all events and at whatever cost, its hostility to combination and organization, its insistence that a partnership is not an entity, and its narrow views of the powers of corporations, it conflicts with the reason and the interest of men of business. Thus the two chief forces in the community, labor and business, are out of accord with the law, and this at a time when each is pushing forward and extending its influence. Individual grievances against the law are as old as the law. They have no necessary effect. On the other hand, friction be- tween the law and important groups or classes in the community affects the whole administration of justice. In legal history, it has ' 76

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quire that View of litigation from attendance on our courts regard the law as a set of arbitrary, artificial shackles upon legitimate enter-V prise, to be evaded as best ,ne may. Nor should we be surprised that laborers, who sit upon juries and, under the rules of the game, are exhorted by counsel to return verdicts on impulse and sympathy and prejudice, while the umpire-judge submits abstract, technical, colorless written instructions, unintelligible to the lay mind,-I say we should not be surprised that they too, when courts declare statutes they regard as of the highest. importance invalid for conflict with dogmas they have been taught to hold obsolete, should look upon law as a body of arbitrary restrictions, to be avoided under the rules of the game, if possibleg if not, then as best they may. I do not say that all of the current disrespect for law is due to the causes I have suggested. Wfhere the people make the laws, it may be that lack of respect for what they make and unmake at will is inevitable. It may be that an imperative stage of law requires authority to make its rules effective. It is true also, as I have said, that there will always be dissatisfaction with law and distrust of lawyers. justice, which is the end of the law, is the ideal compro- mise between the activities of each and of all in a crowded world. The law seeks to harmonize these activities and to adjust the rela- tions of every man with his fellows so as to accord with the moral sense of the community. Wfhen the community is at one in its ideas of justice, this task is not so difficult. NVhen the community is divided -and diversified, and groups, and classes, and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult. In truth, it is impossible that legal and ethical ideas should be in entire accord in such a society. The individual looks at cases one by one, and measures them by his individual sense of right and wrong. The lawyer must look at cases in gross, and must measure them by an artificial stand- ard. I-Ie must apply the ethics of the community as laid down in the law, not his own. And this divergence between the ethical and the legal, as each individual sees it, makes him say with Luther, good jurist-, bad Christian. In the United States, political jealousy affords a special reason for public distrust of the lawyer. None of us would agree to the ,BRING Trl BEAR HLLTHE Fnwf-R5 nr: YD'-IR MIND, NDT THFIT YDLI MHY 51-UNE, BLIT THFIT vmrurz mnv TRIUMPH Hun YDUR r:nu5E PRcx5PfR. vs,