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33 J. Am. Jud. Soc. 175 (1949-1950)
The Functioning of Judicial Machinery - A Problem and a Program

handle is hein.journals/judica33 and id is 177 raw text is: JOURNAL OF THE AMERICAN JUDICATURE SOCIETY The Functioning of Judicial Machinery- A Problem and a Program By HOMER CUMMINGS T HE proper functioning of judicial ma- chinery is fundamental to the healthy life of a free nation. Substantive law to which, time out of mind, the attention of the profes- sion has been chiefly devoted, has normally not been the source of popular protest. It grew. It developed. It tended to adjust itself to human needs, albeit sometimes tardily. The average citizen has regarded this stately edi- fice with respect and even reverence. It was in the realm of procedure that a feeling of resentment and, indeed, of exaspera- tion developed. For too many weary years and, indeed, generations the approach to the seat of justice was clogged and encumbered by a judicial machine so antiquated and so bur- dened by accumulated legal impedimenta that, to speak frankly, it was unworthy of the re- spect of thoughful people. Here the litigant tasted the bitter dregs of the law. The dis- heartening delays incident to proceedings in court were more dreaded than any ultimate de- cision on the merits. We had great judges and great lawyers. But they were hopelessly entangled in the jungle of an inadequate and confusing procedure. Justice, swift and certain, seemed an unattain- able ideal. The whole inglorious system ap- peared incapable of betterment, no matter how manfully leaders of the bar sought a solution. The courts themselves were powerless. For all practical purposes, they had been stripped of their rule-making power. In fact its very existence was challenged in many quarters. Repeated efforts to restore this dormant and HOMER CUMMINGS, vice-president of the American Judicature Society, practices law in Washington, D. C. From 1933 to 1939 he was attorney-general of the United States, and -he personally took a leading part in most of the great advances in the federal judicial system which he describes in this article, and for which he generously distributes the credit to many others. unused function were so often repulsed that a great majority of the profession accepted the situation with a sense of resigned frustration. But a virile society is certain to out-grow the legal garments in which it is clad. The sheer complexity of modem affairs intensified, in the minds of forward-looking lawyers and laymen, a growing feeling of deep concern. Justice, in any real sense, was in danger of being strangled in its own halls. As the situa- tion worsened, states and nation sought other forms of justice. The rapid rise of administra- tive law was but one manifestation of the trend. The first effective move had to be in the fed- eral field. It was finally attempted with re- newed energy. It is not necessary to elaborate upon the extraordinary achievements of the last fifteen years, which reflect credit in so many quarters. But it may be well, by brief recitation, to bring to mind the perils we have passed. As a forerunner to projected reforms in the federal field there were Congressional enact- ments, more than twenty in number, that well-nigh closed the gap between state and na- tional authority, primarily in instances where crime had spilled over state lines. The rela- tively safe interstate haven for the instructed criminal, so frequently referred to as the un- hallowed sanctuary of crime was occupied more and more effectively by the forces of law and order. Marked improvements were also made in the prison system, including the establishment of Alcatraz. Then came the crucial enactment by which the rule-making power in civil cases was recog- nized as a proper function of the Supreme Court. When the new rules came into being, they proved to be simple, workable, and direct. Moreover, the very source that promulgated them could amend them as circumstances re- quired. Flexibility, together with the means of making prompt correction of manifest de- APRIL, 19501

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