Law in the United States

[During August and September the American Notes which have previously appeared on this page are being replaced by a series of articles by our American Correspondent, designed to form a back- ground against which future notes may be read. They deal with various broad aspects of American life, and outline the general situation in each.—En. Spectator.]

No subject is engaging more widespread or more critical attention in the United States at the present time than the law—civil and criminal—and the machinery for its adminis- tration and enforcement. Popular interest has been quickened by the appointment of President Hoover's Law Enforcement Commission, but certainly did not originate with it. Discussion, for instance; of the legal difficulties of enforcing

Prohibition has been continuous and intense ever since the effects of the Eighteenth Amendment were felt. Morever, crime, generally, is a perennial subject of debate in the United States. Americans have always been very frank in advertising their crimes and the defects of their law and legal institutions. In President Hoover's recent speech, for instance, he gave statistical comparisons in respect of crime with England's relative lack of it. And yet, as the President's Commission discovered, no reliable crime statistics for the United States exist, and, in addition, the whole background

of conditions, historical, geographical, political, racial, social and economic, widely differentiate the United States from any other country and make its task and its problems unique.

Law everywhere in the modern industrial world is inevitably complex, and the problems of law are growing even more so. It is frequently pointed out that most of our Common Law grew up to deal with conditions prevailing before the highly complicated relationship of the modern machine age developed. Law is complex in the United Kingdom with its homogeneous population of forty-four millions in an area of ninety-four thousand odd square miles. It is infinitely more complex in the United States with its heterogeneous population of over one hundred and twenty million persons drawn from very diverse racial stocks, each having very different conceptions both of the functions and of the sanctions of law, and living under much more rapidly changing conditions M an area of over three million square miles.

Moreover, unlike England, the United States, in law making, administration and enforcement, is not one country, but at least forty-nine, since each of the forty-eight States has its own separate and, unless otherwise specified by the Federal Constitution, sovereign authority embodied in systems existing side by side with and independent in jurisdiction of the Federal system. For example, there is no uniformity among the States in the laws governing divorce or inheritance.

This division of sovereign authority is in itself a fruitful source of complexity. It encourages the natural tendency of democracies to make many laws. The United States rightly has been called " the greatest law factory in the world." Eliminating minor measures, Congress and the States together enact bi-annually—the usual legislative term of office —an average of twelve thousand statutes. Counties and municipalities in their turn add a mass of ordinances far exceeding in number the legislative output of Congress and the States combined, and similarly with law-making or the adaptations of law by the decisions of the Courts. These decisions—of courts of last resort only—occupy to-day 10,443 volumes in the Law Library of Congress, which contain approx- imately 1,408,455 cases, and 10 per cent. of them are not recorded.

The division of sovereign authority also leads, naturally, to immense diversity not only in the law itself but in the various agencies and forms of procedure for its administration and enforcement. Federal, State and local courts, police and law enforcement officials are without central, unifying control.

There is no one court, such as the Privy Council in England, which has authority to lay down, finally, the rule which shall be supreme, except in questions relating to Constitutional provisions, in all States in the Union. In by far the greater

part of both civil and criminal causes affecting the property and persons—even in matters of life and death—of the Ainerican people, neither the United States Supreme Court nor any Federal authority has jurisdiction.

There is no organization in the United Statqs corresponding to Scotland Yard. Nor is there any effectively unifying organization of bench and bar. Federal courts and State courts respectively may determine who has the right to practice before them.

There are more than four hundred different bar associations in the United States, and one national organization, the American Bar Association. But the total membership of these bodies, in proportion to the number of judges and lawyers in the country, is comparatively small. Of more than 4,000 judges actively engaged in the administration of justice, and of between 125,000 and 150,000 practising lawyers, only 1,005 and 26,595, respectively, were members of the American Bar Association at the time its last annual report was made.

Moreover, the various Bar Associations are purely voluntary bodies, and though they have great influence they have no legal powers corresponding to those of the Inns of Court and the Law Society in respect of discipline or admission to practice. Nor is there any central authority to exercise such powers, for they are divided between the Federal and State Governments and exercised in such ways as the several constitutions determine.

Thus the organization of the vast and complex system of law and legal institutions has not kept pace with the social and economic progress and complexity which mark the United States of to-day. As Dean Roscoe Pound, of Harvard Law School, has said :—

" The characteristic Anglo-American legal polity has a back- ground of historical unity and a foreground of individualized local detail. This polity did well in the society of independent, local neighbourhoods of early nineteenth-century America. It is strained to the breaking point in the economically unified society of inter- dependent communities which obtains to-day."

Will it survive the strain ? Despite the grave warnings that have been heard from the highest authorities, including the President and the Chief Justice of the Federal Supreme Court, very few Americans have serious doubts on that score. In fact, the average American's optimism over his national institutions does not cause him to give the problem much thought.

In the first place the defects are widely recognized and many of the best legal and lay minds in the country are striving to eliminate them. An immense amount of work has already been done towards reform and readjustment, and in this work none are more active than influential members of the bench and bar themselves. A most important movement is that of the American Law Institute, which includes among its membership many of the most distinguished judges and lawyers in the country. It has undertaken the immense task of reducing the Common Law of to-day to clear and authoritative restatement. It is also devising a model code of criminal procedure which may be uniformly adopted. Though the results of its efforts will be merely persuasive, they will have behind them such a body of competent opinion that distinct progress should result. Similarly the National Conference of Commissioners on Uniform State Laws is also doing much to influence the adoption of uniform statutes. Reforms in the training and admission to practice of lawyers and in the selection of judges and the conduct of the courts are being brought about by a number of influences. In this work the Bar Associations and the leading Law Schools are co-operating with State and Federal authorities. President Hoover has brought the immense moral and administrative influence of the Presidency to reinforce numerous official and unofficial activities in various parts of the country. The appointment of his Law Enforcement Commission, and the attention which he is giving to reforms in the Federal system, mark a decided practical advance.

Finally, the problems of law are being seen, more and more, as a challenge to the morale and genius of the whole nation.

They are problems without parallel in the history of democratic institutions and their solution is unlikely to be achieved by short-cuts. Yet to doubt that steady progress toward their solution will be realized would be to shut one's eyes to the whole record of American achievement.