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The New York State Bar Association i martubig an interest in the forward-looks move what have taken deep root in our country in the past few years and are making for better cord dus, better laws, better administration of the laws; for shelter government, and for a better country in which to ie, This interest consists in the appointment of a Standing Committee of five members of the Bar Association to investigate regarding, and to report upon, designated phases of the new and pre ressive doctrines and accomplishments, and particularly as they affect the courts and the administration of justice 1 the courts

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THE

AMERICAN LAW REVIEW.

JULY-AUGUST, 1916.

RECALL OF JUDGES AND JUDICIAL
INDEPENDENCE.

The New York State Bar Association is manifesting an interest in the forward-looking movements which have taken deep root in our country within the past few years and are making for better conditions, better laws, better administration of the laws; for a better government, and for a better country in which to live. This interest consists in the appointment of a Standing Committee of five members of the Bar Association to investigate regarding, and to report upon, designated phases of the new and progressive doctrines and accomplishments, and particularly as they affect the courts and the administration of justice in the courts.

As a preliminary to their serious work this Standing Committee is wont to prepare and scatter broadcast "questionaires," requesting the favor of a reply from the persons to whom they are sent. Just what aid the Committee derive from this method of proceeding, or how far they consider themselves bound by, or are governed by the replies received, in their deliberations and in making their report, is not disclosed. Upon the coming in of the report of the Standing Committee at the annual meeting of the New York State Bar Association, resolutions are passed approving the sug(481)

VOL. L.

31

gestions of the Committee, adopting the ideas thereof and vouching for them as those of the State Bar Association as a whole.

What has stirred the New York State Bar Association to inaugurate this procedure is doubtless the fact that this country-particularly in the middle and western part thereof has forged ahead until it has become the most forward-looking nation in the world, with the single exception of Switzerland,' and has carried the principles of direct popular sovereignty to great lengths, and bids fair, in the near future, to carry them to still greater lengths. Among the many things calculated to disturb the equanimity and arouse the fears, perhaps, of those backward-looking individuals who are bound by precedent and the traditions of a selfish and sordid past, may be mentioned such legislative acts,-constitutional and statutory, as child labor laws; corrupt practice acts and primary laws; creation of departments of industry and labor; factory laws; juvenile court acts; laws preventing reversal of causes for mere technical errors or irregularities in law or procedure not affecting the substantial merits; maximum hours of labor; minimum wage laws; railroad commissions and other industrial commissions, with a strong arm and adequate means to bring under and within the laws of the land recalcitrant and avaricious and law-defying corporations and other predatory interests which prey upon the people; the retirement and pensioning of employes; woman suffrage; workmen's compensations acts, and other acts to relieve the oppressed and promote social justice. But no political phenomena of this or any other time is more significant than the wide and rapid spread of the doctrines of the initiative and the referendum in legislative matters, and the recall of officers, including judges, which is now firmly established in at least twenty states, and principally during or since the year 1911, and now exists therein either in state

1 See "Referendum and Initiative in Switzerland," 185 North American Review, p. 202.

2

and municipal matters or in municipal matters. It is not so much an abiding faith in the infallibility of the people that has caused this rapid and wide spread of these doctrines, as it is a well-grounded want of faith in legislators -state and municipal,-who are too often the creatures of political bosses and too susceptible to be "influenced" by selfish and greedy corporations, and other corrupt and corrupting interests.

In 1914 the New York State Bar Association assigned to the Standing Committee for consideration and report, the question of the "recall of judicial decisions" on constitutional questions by permitting the people, by plebiscite, to determine whether the statute involved and pronounced by the court to be invalid because in contravention of the fundamental law, shall become a law under the police power of the state,—-a doctrine which was given prominence during the presidential campaign of 1912. The claim has been put forward for this method of procedure that it would preserve judicial independence and open the way for social legislation. There are among students, philosophers, publicists and jurists, alike, those who look upon the proposed procedure for the recall of judicial opinions as highly obnoxious; as a veritable death-blow to the vital principles of eternal right and justice for which we as a nation have struggled so strenuously; to the fundamental law, which is the keystone to our whole superstructure of liberty, personal independence and social justice. The effect of such a procedure would inevitably be to work an amendment to

2 Initiative and referendum in 22 states; recall in 10 states; woman suffrage in 12 states; direct primary 37 states; presidential primary in 21 states, etc.

3 In recent times there is very little, or no, sympathy with the romantic concept of the Historic School, according to which law and the principles of legal right come into existence or are formed painlessly, without trouble and without action, much like the growth in the vegetable creation. See Von Jhering's

Struggle for Law (2nd ed.), p. 16; also I Continental Legal History Series, pp. 183, 195-197, 443, 444; I Modern Legal Philosophy Series, pp. 63, 65, 66, 319, 320; II Id., pp. 6, 7, 17, 21, 204 et seq., 254, 375; III Id., pp. 62, 63; IV Id., pp. 27, 118; VII Id., p. 106; X Id.. p. 48; XII Id., pp. 10, 353, 354, 365, 378.

4 See "The Constitution and the People's Liberties," 184 North American Review, p. 508.

"All our laws are legislative, judicial, and doctrinal. The Constitu

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