The Judicial Council and the Rule-Making Power: A Dissent and a Protest

Abstract

In 1947 the New York Judicial Council, after careful consideration, tabled a proposal submitted to it by the New York County Lawyers' Association to empower the Court of Appeals to prescribe civil procedure by rules, subject to modification by the legislature. The Council said: "The basic consideration which influenced the Council's decision to table this proposal was a recognition of the general consensus of opinion that the present system of civil procedure presently employed in New York State works very well. No general demand for a change was found to exist. . . . "It is believed that the present practice of eliminating procedural problems only after unhurried study and consideration by the Council, publication of its research in a printed form, and consideration and evaluation by the Bar Associations and Legislature, is a sufficiently satisfactory method of dealing with procedural problems at this time and is justified by the results. That New York possesses one of the most efficient systems of civil practice in the country is generally conceded. Nonetheless, if future developments indicate a need for change of the basic method by which the State's civil procedure is to be formulated, the Judicial Council will reconsider the tabled proposal. To this all-inclusive statement we feel it necessary to offer a dissent and to add a protest that the Council should have brought itself to the point of uttering it. For it seems to us that the quoted words contain about as many errors as can well be compressed into so brief a space.