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

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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,

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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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Latin regime which resorts to revolution instead ot a writ of Quo Wfarranto. A century of opposition to the power of courts over unconstitutional legislation has left the doctrine firmly intrenched in our polity. But where the constitution is constructed and recon- structed by lawyers and on legal theories, where questions of the highest economic and social import have to be passed upon by the courts in determining private controversies, the strain upon the law and upon the machinery of its administration is necessarily very great. It restrains, not individuals alone, but a whole people. And the people so restrained is apt to be jealous of the visible agents of the restraint, and to charge every departure from the social or eth- ical demands of the moment to warping of the law by crafty lawyers. But I speak of respect for In-zu, not of respect for Ia'zuyc'r.t. For it lawyers do not respect the law, who will? Respect for the law must begin with us. The bar has maintained a wonderful standard in this country when we consider how zealously we have wrought to turn the profession into a mere trade. XVhen we reflect that counsel is an oficer of the court, charged with the duty of assisting the court in the administration of justice, it seems difficult to con- ceive that counsel are hired by the year as part of the administrative staff of organizations that are everyday litigants to assist them in evasions of the law. WVe have gained much in some ways in unify- ing the professiong but in degrading the honorable position of counselor at law to that of a hired servant, we have lost quite as much as we gained. I do not question that all large enterprises must have their regular attorneys, employed for their business alone. On the other hand, to have the counsel who appears in court and conducts arguments and tries causes appear in the livery of a liti- gant is a distinct misfortune. I do not for a moment advocate any scheme so chimerical as division of the profession in America. But I do say that the commercial standard must be discarded and the professional standard restored, or we shall ourselves have dealt a sad blow at public respect for law. Today the growing point of law is in legislation. Judicial law- making is sterile. The growth of the future will take place through deliberate, conscious enactment, not by chance application of anal- ogies as causes arise. But the province of legislation in legal mat- ters is greatly misconceived. Laws are looked on as a sort of elixir of life for the body politic. Every one has his legislative pink pills or boluses or invigorating nervous essences to prescribe. The stat- ute-books teem with new laws on matters where the substantive 79