The conditions described have given rise to an attempt on the part of the American legal profession to preserve the common law system by producing an orderly expression of the common law, which, though it will not have the binding force of statute law, will at least be regarded as having an authority far superior to that accorded any existing legal treatise.
The organization undertaking the execution of this work is the American Law Institute, founded in 1923. The institute is a voluntary organization with two classes of members—life members and official members. The number of life members is limited to 75o, the membership being confined to the leading judges and lawyers in the several States. The official members are the members of the U.S. Supreme Court, the chief judge of the court of last resort in each State, the senior judge of each of the nine circuit courts of appeal, the deans of the law schools belonging to the Association of American Law schools, the president and princi pal officials of the American Bar Association, the presidents of the State bar associations and the presidents of the principal scientific legal societies. The orderly expression of the common law on which the institute is engaged is called the Restatement of the Law.
Whether regarded from the point of view of expenditure of money, time or skilled professional labour, no work of equal im portance or magnitude has ever been undertaken by the mem bers of any legal profession. Indeed, the only work to which it can be compared is the work on the Code, the Digest and the Institutes of the Roman law by Tribonian and his associates undertaken at the direction of the Emperor Justinian. That work, however, as well as the modern Code Napoleon and the more recent codes of the nations of continental Europe and South America have had behind them the sanction of the State. The analogous work on the common law, on the other hand, is being undertaken by the lawyers of America as a voluntary enterprise, though they have turned to one of the great public f oundations the Carnegie Corporation—for the necessary financial assistance.
(W. D. L.) The Reform of Procedure.—Inheriting it from the Colonies, which in turn had copied and adapted it from familiar English sources, the early courts of the several sovereign States followed the system of procedure in lawsuits known as English common-law pleading, a system based upon writs or forms of action, through which certain rights could be enforced in formal manner. The
rapid territorial extension of jurisdiction and the growth of cities soon began to cause gradual modification in each State by statutes passed from time to time, as shortcomings in the simple legal machinery of formerly rural communities were apprehended. During the first half of the 19th century, the chief result of these improvements was to permit some fusion of the forms of equity with common law.
However, in 1848, New York adopted a Code of Civil Pro cedure introducing a system of procedure and pleading which was rapidly copied by other, and adopted by new States until it is in use in well over half of all. This was the culmination of an agita tion and effort for procedural reform largely led by David Dudley Field, based upon earlier writings of Jeremy Bentham in England, Edward Livingston in Louisiana and Napoleon's Code of Civil Procedure. The objects of the New York Code whose provisions can be found almost verbatim in most other American procedural codes, were to consolidate all forms, writs and causes of action into one simple universally applicable form, to remove all distinc tions between law and equity, to permit free joinder of parties and causes of action, and to substitute for the previously highly technical and formal language used in the written statements required of parties, a simple, cogent and natural style of expression more in accord with the practice of daily life.
With regard to all but the last of these objects, the code has been successful. Its benefits were felt even in England, where its example was persuasive in forwarding the reforms introduced by the Common Law Procedure Acts of 1852 and 186o, and later the great Judicature Acts of 1873 and 1875. These, in turn, influ enced the American Codes, which, since their first enactment, have not remained static but have, just as has the procedure in the so-called common-law States, been frequently amended and, in some cases, improved, by legislative act. In many non-code States most of the procedural reforms of the codes have been adopted without wholly abandoning distinctions and formulas traditionally dear to practitioners trained to revere them.