by Emanuel M. Grossman

Editor’s Note: This address, delivered nearly a century ago at the 1910 Annual Meeting of The Missouri Bar Association (the forerunner of The Missouri Bar), was prescient in several of its calls for systemic law reform. Mr. Grossman of St. Louis, the Association’s treasurer that year, urged creation of a workers’ compensation system, which occurred in Missouri in 1926. He sharply criticized and predicted the ultimate demise of the liberty-of-contract doctrine, which dominated economic substantive due process decisions from Lochner v. New York (1905) until the U.S. Supreme Court abandoned the doctrine beginning in 1937. He advocated reform of the civil justice system, which began in earnest in 1938 when the Federal Rules of Civil Procedure displaced common law and code procedure and created a blueprint for change in Missouri and other states.

That there is a growing disrespect for the law is patent to all observers. Leading newspapers of the country barely miss a daily editorial criticism of the inefficiency of our legal system. Magazines make the law and its administration the subjects of their popular assaults. Judges, lawyers, distinguished teachers of the law, sociologists, publicists and philosophers, as well as merchants and laborers and the man on the street, join in criticism and denunciation of our courts, the Bar, the law and its administration. President Taft, against whom no one has brought the charge of radicalism, a man whose whole career has been identified with the law, who won his highest honors and distinction as a federal judge, his father an able judge before him, has made criticism of the law and its administration the serious subject of the times. In a speech he delivered in Chicago on September 16, 1909, he said:

There is no subject on which I feel so deeply as upon the necessity for reform in the administration of both civil and criminal law. To sum it all up in one phrase, the difficulty in both is undue delay.

But reform in our criminal procedure is not the only reform that we ought to have in our courts. On the civil side of the courts … undue delay … always works for the benefit of the man with the longest purse. What the poor man needs is a prompt decision of his case, and by limiting the appeals in cases involving small amounts of money so that there shall be a final decision in the lower court, an opportunity is given to the poor litigant to secure a judgment in time to enjoy it, and not after he has exhausted all of his resources in litigation to the Supreme Court.

Of all the questions that are before the American people, I regard no one as more important that this, to-wit: The improvement of the administration of justice. We must make it so that the poor man will have as nearly as possible an opportunity in litigation as the rich man, and under present conditions, ashamed as we may be of it, this is not the fact.

And in his annual message to Congress, the President said:

In my judgment, a change in judicial procedure, with a view to reducing its expense to private litigants in civil cases and facilitating the despatch [sic] of business and final decisions in both civil and criminal cases, constitutes the greatest need in our American institutions.

A by-product of the unanimity of criticism, and significant as reflecting the resulting popular regard for lawyers, was recently conspicuously manifested with a certain public character, ambitious for further political honors, made a point of the fact that a large proportion of the President’s cabinet are lawyers and that all of them had been the attorneys for large corporations. No charge was made that they had been dishonest, but the simple fact that they had reached such eminence in the profession as to win the recognition of large and important interests, was set forth as a mark of discredit to them and as evidence that the government was entitled to popular disapproval for utilizing their talents for the public service. The suggestion implied is either that all lawyers are untrustworthy, or that lawyers as soon as they win distinction become so, and forfeit the right to be of public service. Such a suggestion could not have been made with any hope of the desired effect had not its author felt that the legal profession had come into popular disfavor. That the legal profession has lost much of its ancient prestige is painfully apparent to every member of the Bar. This loss must be charged in large part to the indifference with which the legal profession, including the judiciary, has permitted the law and its enforcement to decline into its present inefficient state.

There is no room for the law in a democracy unless it accomplishes the will of the people. As an institution requiring respect and unqualified homage, it must be an efficient instrument for the furtherance of public good. That it falls far short of attaining this ideal is obvious. Just as in the administration of public affairs, the cry throughout the nation is against the vested advantages of the privileged few, and the deliberate disregard for the welfare of the mass, so there is now a growing feeling that the law in some respects on its substantive side, but chiefly and altogether on its administrative side, has come to be the instrument of power in the hand of ‘him who hath’ as against the welfare of society as a whole. Therefore it becomes the work of the lawyer, who is inspired by the traditions of his profession, who chose it as his own not merely through his commercial instinct, and who is not content to spend his life as a parasite on a decadent growth, to examine into our jurisprudence and to find remedies for the evils that have come to it.

The complexities of modern social and industrial life have necessitated a shifting from individual rights to the common welfare. The law in its persistence for individual rights has failed to adapt itself to the greater interests of society as a whole, and therefore, now for the first time in its history, the law is not regarded by the people as an institution primarily for their benefit and welfare.

The tenacity with which courts have clung to this individualistic conception and have consistently refused to perform their part in the general movement for social betterment, has undoubtedly irritated the people and provoked popular dissatisfaction. Popular tolerance of the law has been severely strained by the application to modern industrial conditions of the fellow servant rule, the doctrine of contributory negligence and the doctrine of assumed risk. So entrenched have these theories become in the modern law of torts that it would be practically impossible to circumvent them, even if it were thought desirable to do so. The people, who after all have it in their power to dictate what the substantive law shall be, are now beginning to compel legislative consideration of the evils of modern industrialism insofar as it affects human life and health. Workmen’s compensation and employers’ liability acts and industrial insurance will soon find their way into our legislation, as they long ago have done in other civilized countries, and the hardships of the application of the old common law of master and servant to present conditions will soon be ameliorated.

Another branch of the substantive law that is responsible for much of the popular dissatisfaction is the law of liberty of contract. Into the constitutional formula that no person shall be deprived of life, liberty or property without due process of law, there has been construed, as being a part of liberty and of property, the right freely to make contracts, including the contract of employment. Though courts have held that when the public good justifies it, legislation may impose restrictions upon this constitutional safeguard, they have, with recent refreshing exception, deliberately overlooked the public good when passing on statutes affecting the rights of workingmen. Rather, with respect to what has been styled social and labor legislation, courts have usurped the constitutional discretion in the legislature to determine whether an act tends or does not tend to protect the public health, safety and welfare. Thus, statutes limiting the hours of employment, fixing the periods at which certain classes of laborers shall receive their wages, prohibiting the practice of fining workers in cotton mills, regulating the measuring of coal for the purpose of fixing the compensation of miners, prohibiting the payment of wages in store orders, preventing employers from prohibiting employees from joining or retaining membership in trades unions, have been held unconstitutional, on the ground that they interfere with the freedom of the individual to contract for his labor in any way that he sees fit. It is not intended here to discuss the merits of this class of legislation. The point here is that such legislative enactments express the will of the majority in the manner provided for such expression under our constitutional and representative form of government. For the courts to vitiate the solemnly enacted will of the people, except in case of palpable violation of a clearly and specifically expressed constitutional limitation, is to set themselves up as superior in wisdom to the people whom they are established to serve. It tends to the destruction of a democracy of people and to the creation of an oligarchy of courts, the final arbiters of what is good for the people being not the people themselves, but the judges whom they have chosen.

The public has no respect for those decisions of our courts that are based on the theory that an employer and an employee, under the present day conditions of industrialism, have equality of rights. Courts lay this doctrine down in all solemnity while everyone knows that the laborer in the mills and in the mines and the women and children in the factories must accept employment under whatever conditions the employer may choose to impose, or join the army of the unemployed and throw those dependent upon them upon the mercy of public charity. That courts made up of intelligent men should fly in the face of the practical conditions of inequality makes it difficult to win for the law and to hold the respect of the working people of the country, so essential to the preservation of peace and order.

This discrimination by our courts against legislation intended to protect the working people against fraud, imposition and oppression cannot fail to have a very serious effect. Miss Jane Addams, the great sociological authority, says in 13 American Journal of Sociology, page 772:

From my experience, I should say, perhaps, that the one symptom among workingmen which most definitely indicates a class feeling, is a growing distrust of the integrity of the courts, the belief that the present judge has been a corporation attorney, that his sympathies and experience and his whole view of life is on the corporation side.

According to Professor Roscoe Pound in his exhaustive discussion of this subject in an article entitled, “Liberty of Contract” in the Yale Law Journal of May, 1909, this doctrine of liberty of contract, as it now is construed and interpreted by our courts, is a new one, and that the first decision turning upon it was rendered in 1886. But, though it is a new theory, it promises to be short lived. Already it shows signs of breaking down. Not that there is any change in the constitutional formula that no person shall be deprived of life, liberty or property without due process of law, nor in the principle that this includes the freedom of contract. But there is a shifting by the courts of the emphasis from the principle of the individual freedom of contract to the principle that such individual freedom to contract is subject to legislative restriction in the interest of the public good. The agitation for more democracy as evidenced by the newly adopted political machinery of the initiative and referendum and direct primaries, the resulting responsiveness of legislation to popular demand, the general feeling that this shall be in fact as well as in name a government by and for the people, will influence courts to permit legislators to exercise the discretion, vested in them by the Constitution, to determine what the demands and needs of the public welfare may be.

The decisions on this subject show that the defects in the substantive law are due largely to the tardiness of courts and judges to respond to the popular will. Furthermore, we find that a saving grace in the modern law is the comparatively new doctrine of the police power. And so now, while the people are impatiently struggling against the traditional conception of the rights of the individual as against the welfare of society as a whole, the police power comes to the front as the elixir of new and more serviceable life to the common law. Its rigidity is being counteracted by the application of this modern instrument for the health, safety and welfare of the people. The doctrine of police power now comes to the rescue of the substantive law and renders it again national and popular and an institution for service to the community as a whole.

The time consumed in the natural course of procedure from one court in our complicated and redundant system to another, aggravated by the numerous instances of delay of a decision after the case has been briefed, argued and submitted to the court, with the altogether too frequent dispositions of cases on mere matters of practice or the granting of new trials on account of an infraction by one side or the other of a rule of procedure, together with too frequent disposition of cases on mere matters of practice or the granting of new trials on account of an infraction by one side or the other of a rule of procedure, together with the expense attending such a tortuous, dilatory and uncertain operation, wholly vitiates the theory that our law is for the poor as well as for the rich. All men are indeed equal before the law, that is, before the substantive law, but the procedure that leads up to its application prohibits the poor man from enjoying its benefits. President Taft, in an article in the North American Review, Vol. 187, page 852, makes the statement:

It may be asserted as a general proposition that everything which tends to prolong or delay litigation between individuals, or between individuals and corporations, is a great advantage to the litigant who has the longer purse. The wealthy defendant can always secure a compromise or a yielding of lawful rights on account of the necessities of the poor plaintiff.

A poor man wronged by a wealthy individual or corporation who undertakes to obtain relief through the courts of the land is in not much better position than was Tantalus doomed by the gods eternally to stand up to his neck in water which fled from him when he tried to drink of it, and over whose head hung fruits which the winds wafted away whenever he tried to grasp them.

The older members of our profession, and those whose lives are spent outside the large cities, contemplating the evils of our jurisprudence, are naturally absorbed with the problems of technicalities and delays in our appellate courts. How to get a speedy hearing and a final disposition of the cause on the merits constitutes for them the whole problem that requires attention. But the younger members of the Bar and those who practice in the large cities realize that the character of our courts of first instance for the trial of petty offenses and controversies is a serious menace to the majesty of law and a flagrant cause of popular disrespect for its administration.

A system of statistics showing the number of cases instituted in our courts, the time expended in their consideration and disposition, the number of trials de novo in smaller controversies and petty offenses, the number of appeals upon points of law, the wasteful retrials, the disposition of cases on points of practice, and then the terrific cost not only to litigants but to the State at large, would bring about a veritable revolution in our antiquated and unjust system. Because of our lack of definite knowledge, the evils have been allowed to accumulate and to grow until the conditions under which the law is administered have become intolerable. Mere continued complaint, confined as it is to newspaper and magazine discussion and to an occasional Bar Association address, will result in nothing but aggravation of the growing contempt for the whole institution of law and its enforcement, which if not abated by intelligent and scientific reform will inevitably bring disaster to our whole social and political fabric. The evils in our substantive law, that law which is the crystallization of the customs and aspirations of the people, they, the people, have the power to correct. But the evils in the administrative law, in the judicial machinery and legal procedure, the legal profession, lawyers and judges alike, must reform.

Suggestions for reform are not wanting. Everyone has some remedy to offer either for a part or for all the evil. These remedies may be the very ones to adopt, and yet because of the lack of publicity and the consequent lack of study of them by the profession and by the people at large, no remedy thus offered meets with the approval necessary for its adoption. It is the first duty of lawyers as a body to suggest safe and sane methods for arriving at an intelligent solution of the problem.

By such action, and by the dedication of our talents to the welfare of the people in so far at least as the administration of law affects it, we shall help to restore the legal profession to its traditional place of nobility and dignity. The clergy throughout the civilized world is engaged in the inspiring task of revitalizing and popularizing religion and of socializing the institutional church. The medical profession has organized itself and assembles for the purpose of giving the world the benefit of its scientific knowledge to the end that disease may be prevented even though the need for doctors may thereby tend to be diminished. That the legal profession may regain its ancient place of equal nobility with the ministry and medical profession, lawyers must demonstrate that, above employment to private interests for mere pecuniary gain, they also value and cherish the ideal of serviceableness to mankind. Law is a means and not an end. And the end is not the development of a game for the intellectual delectation of judges and lawyers, nor is it that lawyers shall by their wits be able to serve the greed and tyranny of a favored few, but the end of law is that justice and righteousness shall prevail in order that we may realize, in these United States, the ideal of a true democracy.