OUR JUDICIAL OLIGARCHY (TWELFTH ARTICLE)
Roe, Gilbert E.
OUR JUDICIAL OLIGARCHY TWELFTH ARTICLE:—POPU LAR DISTRUST OF THE COURTS SOME SUGGESTIONS AS TO A REMEDY By GILBERT E. ROE (Copyrighted 1911, The Robert M. La Follette Co.) What Must We Do To...
...110 A. D 97 221 Of the cases appealed to the Court of Appeals substantially 20 per cent, were reversed and 80 per cent were affirmed...
...If it is true, as charged, that our judges generally are out of sympathy with the new and progressive views ond policies of the present day, and are using the great powers of the judicial office to block and thwart the public will in these respects, and to preserve and extend the ancient but unjust privileges of wealth, contrary to the demands of a modern and enlightened public sentiment, then there is indeed both just and serious ground of complaint against the courts...
...The late Mr...
...Were there no peaceable remedy then indeed might there be grave danger of the revolutionary remedy feared by President Hadley and Judge Thompson...
...a verdict if they are dissatisfied with it, but under the present practice must grant a new trial, they shall have power to direct what verdict shall be rendered...
...Is there a remedy...
...are other than very human institutions presided over by men with the same faults and virtues, and prejudices and limitations, common to their fellows...
...Orders...
...In a free country, in self government, there is no place for a judicial oligarchy...
...The recommendations of the Association of the Bar of the City of New York1 are fairly typical of the recommendations emanating from courts and judges and Bar Associations generally on this subject...
...WE HAVE a Judicial oligarchy in this country...
...25 14 39 75 Wis...
...Affirmances 67 Reversals 36 103 110 Wis...
...O ders Total Total Appeals...
...It would, indeed, be strange if courts saw anything but good in an enlargement of their powers and lawyers are notoriously cowards where criticism of the courts is involved...
...What is Shown in Wisconsin I CAUSED to be made also an examination of three volumes of the Wisconsin Supreme Court Reports, 50, 75, and 110 Wis., selecting them at random, to determine the number of cases therein which were affirmed and the number which were reversed...
...In none of these tables is any account taken of the cases carried from the highest court of the state to the Supreme Court of the United States and there reversed...
...Where the Trouble Lie* THE RECOMMENDATIONS originating with judges, and lawyers' associations in the main, therefore, propose to increase the power of the judge, decrease the power of the jury and limit the right to appeal...
...110 A. D 156 337 1032 Affirmances: 67 per cent...
...I do not suppose that the Bar Associations and the judges by focusing attention upon the subjects of delay, expense, and reversals for technical causes, incident to our present judicial procedure, intend to divert public attention from the real abuses, although there may be some ungenerous enough to suggest that this is the explanation of the recommendations for judicial reform noticed above...
...It would be better if we frankly admitted that great expense and considerable delay are inseparable from any litigation and that the wise thing for the prospective litigant to do-is to settle his difficulties out of court without the aid of either judges or lawyers...
...39 23 62 110 Wis...
...100 A. D 71 Vol...
...These recommendations (except as to some minor matters of practice) group themselves under three heads: First: Those providing that the trial justice shall have greater power than heretofore in directing the jury to return a verdict in favor of one party or the other...
...But there is a way to destroy the judicial oligarchy...
...What Must We Do To Remedy:Conditions That Have Brought About Popular Distrust of the Courts...
...6, 1910...
...What Judges and Lawyers Recommend PRESIDENT TAFT, in his message to the LXIst Congress, as we have seen, referred to what he called the "deplorable delay in the administration of civil and criminal law," which matters, he said, were receiving the attention of the Bar Associations of the country and the careful consideration of judges as well...
...By the law of averages, I suppose if litigants met together outside of court and settled their differences by drawing lots, the right would triumph half the time...
...Underlying the whole argument of those advocates of judicial reform, whose contentions were ably stated by Mr...
...Total number of cases appealed to Court of Appeals: Vol...
...Judges Have Too Much Power THE REAL BASIS of complaint is not that judges haven't enough power, but that they have too much...
...but the remedy they generally suggest will aggravate the real evils, not correct them...
...these are immediate evils and it s both popular and safe to rail against them...
...What the Figures Show THE ABOVE FIGURES seem to show that more errors are committed by the trial court in matters decided without a jury than in those where a jury passes upon the facts...
...Orton's article as one of the best contributions to the subject.—GILBERT E. ROE...
...Second: Where, at the conclusion of the plaintiff's case, the Court is of the opinion plaintiff has not made out a cause of action and dismisses the complaint, this shall finally dispose of the case and prevent the plaintiff bringing another action for the same cause...
...Limiting the right to appeal may conceal these wrongs, but it will not correct them...
...When it is considered that in most cases where there is a real contest, at least one appeal is taken, and that the questions which the appellate court can pass upon even under our present procedure are much restricted, and confined largely to questions of law, it is certain that a shockingly large number of cases are decided incorrectly even when those decisions are measured by the crude standards of right and wrong which the law prescribes...
...100 A. D 186 Vol...
...But if this charge is untrue, the public interest requires that it shall be refuted at once...
...If this assumption were true the argument would be good and any change which would increase arbitrarily the power of the judges and hasten a judgment would be desirable...
...105 A. D 66 Vol...
...In the following article, Mr...
...The worst enemies of the court's and of the country are those who seek to prevent free criticism of judicial officers...
...I have reached the conclusion that no judgment should be reversed upon a mere error in the admission of evidence, error in the ruling of the court, or in the trial judge's charge, unless it be clearly shown that such error worked a serious injustice upon the defendant...
...Now this means discussion and freedom for discussion...
...Affirmances 48 Reversals 30 78 284 Total affirmances: 50 Wis 59 75 Wis 67 110 Wis 48 174 Total reversals: 50 Wis 44 75 Wis 36 110 Wis 30 110 284 Affirmances 61 per cent...
...Justice Brewer, above quoted, and were the same in substance as the recommendations of the various Bar Associations of the country...
...of Reversals...
...105 A. D 344 Vol...
...His general recommendations were along the lines suggested by Mr...
...No one will defend such action on the part of the judges or contend that a free government is possible where judges exercise such power...
...I maintain that laws should be passed which would give judges the necessary latitude in such matters to enable them to render quick justice...
...The powers that our courts have presumed to exercise, have made them, not the bulwark of justice, but the bulwark of privilege...
...Conditions in New York IN 1903 a Commission was appointed by the Governor of the State of New York to inquire into the delays and expenses in the administration of justice in certain counties of the State of New York...
...it is not that justice is delayed, but that it is denied...
...Reversals 39 per cent...
...18 16 34 114 Appeals from decision of court: Affirmed Reversed Total 50 Wis...
...The Appellate Division of the New York Supreme Court is, it should be understood, an appellate court intermediate between the trial court and the Court of Appeals: Total number of cases appealed: Vol...
...What are we to do about it...
...1896 934 700 1634 441 376 817 2451 33.3 1897 874 771 1645 465 444 899 2544 35.3 1898 978 762 1740 619 454 973 2713 35.7 1899 1065 859 1924 487 412 899 2823 31.8 1900 1104 891 1995 472 395 867 2862 30.2 1901 1142 919 2061 467 378 845 2906 29...
...In his next article Mr...
...Judges Must Face Wholesome Criticism THE FIRST STEP toward bringing about better relations between the courts and the people is to subject the official acts of the judges to the same measure of criticism that is visited upon the acts of all other public officials...
...it will only increase the number of wrong decisions and take away the possibility of correcting them...
...The following table shows the fate of the cases reported in three volumes of the New York Appellate Division Reports...
...These reports were selected at random, covering different periods, but all sufficiently recent to show the conditions at the present time...
...It is easy to-complain of the delay and expense of litigation...
...30 14 44 170 284 The judges of Wisconsin are at least equal in ability to those of any state in the Union, so that the above figures doubtless are fairly representative of the decisions in other states...
...Roe will discuss further the remedies for popular distrust of the courts, and offer some suggestions concerning legislation...
...Justice Brewer in the quotation above given, is the assumption that when a decision is rendered, it is right...
...Justice Brewer, for many years a member of the Supreme Court of the United States, and one of the most influential members of that body, in a statement published in the press of New York City, February 1, 1910, after referring to the popular dissatisfaction with the courts, had this to say: "I advocate that the States enact laws that will permit of but one appeal after the trial judge...
...HOW NOT to reform the judiciary is quite as important as how to reform it...
...There will be a discussion of the recall as applied to judges.—Editor's Note...
...Third: Where the judges now exercise the power to set aside 1 See New York Law Journal, Jan...
...100 A. D 58 Vol...
...Respect for the courts and obedience to their decrees must rest upon some other basis than fear of a contempt proceeding or veneration for judicial mystery...
...Now when the result of judicial action, even with all the present opportunities for argument and consideration, fails to show a very much better average, it ought to be clear that hastening judicial proceedings will not give the desired results...
...This Commission made a most exhaustive report in 1904 and among other things summarized the Affirmed Reversed Year...
...2 See New York Report of Commission on Law's Delays (1904), p. 25...
...Total Judgments...
...100 A. D 257 Vol...
...110 A. D 431 1032 Total affirmances: Vol...
...If, on the other hand, the charge is not true, then it is of the highest importance that the public be informed of the truth and that this ground of dissatisfaction with the judiciary be removed...
...The purpose of the courts should not be so much to render speedy decisions as to give just judgments...
...greater haste in judicial action will hardly contribute to a wiser or a more just result...
...It is not that decisions are a long time in coming, but that they are wrong when they do come, of which the public complains...
...Judgments...
...In order to determine the proportion of our decisions likely to be wrong, even under our present so-called slow methods, which permit some time for consideration and deliberation, I have prepared certain tables of cases from various courts...
...But if, on the other hand, the decisions of our courts where real and substantial contests occur are about as apt to be wrong as right, no very grave injury is likely to result if a decision is somewhat delayed and if such delay can gurantee a more nearly just result, it is desirable rather than otherwise...
...Appeals from verdict of jury: Affirmed Reversed Total 50 Wis...
...34 30 64 75 Wis...
...28 13 41 110 Wis...
...These recommendations assume that the popular dissatisfaction with our courts involves only a matter of procedure, when, the fact is that it goes to the substance of judicial action...
...The laws of many of the Western States, are such that a judge is but little more than a moderator...
...Subject judges to the same measure of criticism and popular control that applies to the other officers mentioned and the difference in the public's attitude towards the two classes of officials will disappear...
...Even judges and lawyers freely admit the existence of abuses in our judicial system and the necessity of correcting them...
...Roe tells us what must be done.---EDITOR'S NOTE...
...To suggest a revolution as a means of avoiding an unpopular law passed by Congress and approved by the President would only provoke a smile, but President Hadley and Judge Thompson, and others like them point out as a grave danger that a revolution may be provoked by the unpopular rules of law laid down by the courts...
...It means that judicial decisions shall be subjected to the same public scrutiny that is applied to the votes and speeches of members of Congress or of the Legislatures...
...Affirmances 59 Reversals 44 103 75 Wis...
...More arbitrary power vested in a judge may decrease the number op cases in which he can be reversed, but it will not make his wrong decisions right...
...If it is true, as charged, that our judges have stepped outside the judicial office and virtually become legislators, thereby usurping the functions of the law-making branch of the government, no language is strong enough to condemn such action and no proceeding too drastic, if it is necessary, in order to correct the evil...
...it is not so much that litigation is costly as that its results are unsatis-factory...
...105 A. D 110 Vol...
...105 A. D 234 Vol...
...The above considerations also ought to effectually dispose of the idea that our courts An Omission IFIND that in my discussion of the Dartmouth College case published in La Follette's for August 19, by an oversight, credit was not given to the very excellent article by Jesse F. Orton on that case, appearing in the Independent of August 19 and 26, 1909, and republished as a part of the work of the Committee to Inquire into the Status of Democracy, I regard Mr...
...Reversals: 33 per cent...
...110 A. D 275 695 Total reversals: Vol...
...It means that judges shall be put on a par with all others who hold commissions from the people to serve the public...
...Practically none of the above cases were reversed on technical grounds, as New York has a very liberal statute requiring the courts to disregard technicalities not affecting the merits...
...Per cent...
...1902 1162 934 2086 534 521 1055 3141 33.5 Total 7-249 5856 13085 3375 2980 6355 19440 32.6 results of the appeals to the Appellate Division for the years from 1896 to 1902 in the above table:2 It will be observed that the last preceding table does not give the cases appealed from the Appellate Division to the Court of Appeals, but there is no reason to doubt that there would be at least as large a percentage of reversals as found in the three volumes of the reports referred to and tabulated first above...
...Every wrong decision means that injustice and not justice was meted out by the court to the parties who came before it, that wrong and not right triumphed, that property was taken from one person and wrongfully transferred to another who had no claim upon it, or that the important personal rights of life, liberty and character were lost...
...The following table shows the result of that examination : Total number of cases appealed in the three volumes selected: 284 50 Wis...
Vol. 3 • September 1911 • No. 35
