A Modern Procedure for New York

Abstract

An opportunity to discuss reform of procedure in New York, now made pertinent by the interest therein of the New York Temporary Commission on the Courts, is for me the occasion to revisit old scenes and familiar places. For my study of New York procedure, undertaken originally more or less by chance thirty-five years ago, has been a continuing one and has provided me over the years with an absorbing interest, both as onlooker and as student and teacher. Although only a bystander, I have experienced real excitement in following New York procedural developments, particularly since one never knows what may happen next. A Washington taxi driver, it is said, when asked as to the meaning of the motto on the National Archives Building, "The Past Is Prologue," responded, true to the philosophical bent of his guild, with this free translation: "You ain't seen nothing yet." That, I think, well epitomizes the reactions of at least this observer as the procedural precedents pile up. Let me hasten to say that I do not intend this as a criticism of the individual judges; they do a back-breaking job in trying to serve this vast and teeming and amazingly growing commonwealth with inadequate tools and an outworn judicial organization. But it is intended as a comment on the unusual number and undue diversity of courts, the lack of a businesslike direction, the inordinate congestion, confusion, and delay now so usual a part of the American picture, and--grain for my immediate grist--a resulting plethora of conflicting rulings as to how to do things court-wise. And it lends emphasis, I trust, to another lack, which I particularly wish to develop in this paper, namely, the absence here of a true philosophy of procedural jurisprudence to give guidance and direction to the lonely harassed trial judge. Under existing conditions there perhaps must be that blithesome disregard of any contrariety of opinion or past troublesome precedent which makes each new decision somewhat of a surprise Christmas package and a joy to the law teacher, whatever it may be to the practicing lawyer or judge.