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Sections I. Proposal for the New York Short Practice Bill.. 1-8

Letter from Mr. Moot.................... 8 II. Proposal for the Federal Cotton Futures Bill... 9-11

Letter from Mr. Caffey................... 10 III. Relation of Proposals to the Present Discontent.12-31 IV. Proposal for An Amendment of the Judicial

Code of the United States and for a Repeal of
Certain Sections in the Federal Reserve Act
and in the Clayton Anti-Trust Act..........32-36

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81. Letter to Mr. Rodenbeck.

January 18, 1916.
Hon. Adolph J. Rodenbeck
Chairman, Board of Statutory Consolidation,

739 Powers Building,

Rochester, N. Y. My Dear Sir:

Recently I received the Board's circular of October 18, 1915, inviting sug. gestions as to the proposed short practice act, etc. In response I venture VOL. L. 11


to offer for the consideration of the Board one of the following alternatives as an additional section for the proposed short practice act:


The power to interpret the constitution and statutes of this State for the purpose of adjudicating justiciable controversies, including the power to decide for the same purpose the constitutionality of statutes, is a judicial function which must be exercised in each case without prejudice from anything done or decided in any other case between different parties but with due regard nevertheless to precedents according to their just value as evidence of the law to the end that there may be as much uniformity of judicial decisions as may be consistent with the elimination of error and the maintenance of constitutional principles.


Every litigant in a court of this State is entitled to be heard, without prejudice from anything done or decided in any other case between dif- ferent parties, on the question of what the law is which governs the disposition of the particular case before the court; and in considering and deciding that question the court must not deem itself bound by any precedent but may nevertheless give due weight to precedents according to their just value as evidence of the law.

The enclosed leaflets give some reasons for embodying one or other of the alternatives in the Constitution of the State. The same reasons hold good for making one or other of them a legislative regulation of judicial procedure.

I find a strong additional reason for this proposition in the Second Report of the State Bar Association's Committee on the "Duty of Courts to Refuse to Execute Statutes in Contravention of the Fundamental Law," presented at the recent meeting of the Association in this city. That report shows a wide-spread and menacing discontent with the judiciary. It also shows, as I think, that the reasons assigned for the discontent by those who feel or foment it are unsound. Nevertheless the report is superficial and inconclusive. Showing that the grounds assigned for the discontent are unsound does not prove that the discontent itself is not well grounded. I think it is well grounded and that the true reason for it may be found in the modern judicial attitude of mind towards precedents, illustrated by the dissenting opinion of Justices Clarke and Dowling, in the Charles Schweinler Press case, quoted at page 6 of the leaflet of May 29, 1915. I think also that the discontent would be allayed if the courts would give up the pernicious notion that they have, or the highest of them has, the legislative function of declaring and settling the law uniformly throughout the State and would confine themselves strictly

to the business of adjudicating each particular case as it comes before them after a fair hearing of the parties thereto on all questions of law as well as of fact involved therein.

I take it that I cannot possibly be mistaken in supposing that the characteristic function of all courts, including the Court of Appeals at Albany and the Supreme Court at Washington, is to hear and determine. No decision or utterance by any court can possibly be legally binding, as a judicial act, on any person who has not first been given an opportunity to appear in court, to participate in the framing of issues of fact and law, and to be heard on the issues so framed face to face by his judge. For a court in disposing of the particular case before it to allow itself to be bound by a precedent between different parties is in effect a denial to the parties before the court of a hearing on the question of law involved in the precedent; and the doing of this generally by the courts is in essence a judicial usurpation of legislative power.

With great respect, I am,
Your obedient servant,


§ 2. The theory of the proposal, the difference between the suggested alternatives, and the intended meaning and effect of the phrase "without prejudice” therein, may be explained as follows:

The first alternative is framed so as to apply directly only to questions arising under the Constitution and statutes of New York. Its effect, if adopted, on questions arising in the New York courts under the Constitution, treaties and statutes of the United States and on questions of the unwritten or customary law would be indirect and more or less dependent on its direct effect. The second alternative is framed so as to apply at once to every sort of question which may arise in the New York courts. The argument for the proposal hereinafter made is believed to furnish adequate grounds for the second or broader alternative and necessarily therefore for the first.

The West Publishing Company's book on “Words and Phrases Judicially Defined,” under the heads “Prejudice,'' “Great Prejudice,” “Undue Prejudice” and “Without Prejudice,' shows that the word “prejudice” has been used

in many statutes and has frequently received consideration from courts. The citations seem to justify Webster's definition of “prejudice,” as follows:

"An opinion or decision of mind formed without due examination; prejudgment; a bias or leaning toward one side or another of a question, from other considerations than those belonging to it; an unreasonable predilection or prepossession for or against anything; especially an opinion or leaning adverse to anything, formed without proper grounds or before sufficient knowledge.”

The usus loquendi which the draftsman of the proposal had in mind was the familiar one in decrees or orders dismissing complaints or bills in equity without prejudice. By such a decree neither the parties nor the courts are in any way bound. In a subsequent case between the same parties and involving the same cause of action the parties would be as free to frame issues of fact and law and would be as much entitled to be heard on all the issues so framed as they would have been had the first case never been brought and dismissed; and the court would be as free and as much under a correlative duty corresponding with its freedom to decide the facts and the law in accordance with its opinion then to be formed about them as it would have been had the first case never been brought and dismissed. The thing to be attained is a like measure of freedom and duty for each court and every party in each case at the time it comes up for adjudication, except only cases involving matters which have already been adjudicated between the same parties.

Under our constitutional system precedents are incompetent to make law. They make law evident if they are decided correctly. They make law obscure if they are decided incorrectly. Hence, except as to persons mutually bound by prior adjudications, precedents must always be open to inquiry as to their correctness. A precedent differs from a constitutional provision in this that, given the meaning of the constitutional provision, there can be no question about its being law, while the declaration of what the law is, expressed or implied in any precedent no matter by what

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