In the second place, the courts have become the targets of adverse criticism by declaring social legislation unconstitutional. One has but to recall the popular disapproval aroused in recent years by the decisions of the New York Court of Appeals. Laws that prevented the manufacture of tobacco in tenement-houses, safeguarded life against dangerous machinery, limited the hours of labor of women in factories to ten hours a day for six days in the week, and the Workingmen's Compensation Act have been held unconstitutional. These decisions have done much to provoke the belief that the courts are unsympathetic with humanitarian measures and that they unwarrantedly interfere with legislative discretion.
The people believe in their courts, they admire and love many of their judges, yet they feel, vaguely, perhaps, but persistently, that something is wrong about a judicial system under which a few men obstruct the will and the needs of the many on matters which seem to involve no question of substantial right at all, so far as individuals are concerned, but only divergences of view as to what is expedient and proper so far as society, as a whole, is concerned.[1]
A third fact, and one often emphasized by Ex-President Taft, concerns the almost interminable delay incidental to judicial procedure in many parts of the United States, the practically endless opportunity for appeal, the frequency with which the outcome of litigation turns upon some technicality of the law and not upon justice, and the fact that the winner in a lawsuit is often the man with the longest purse and not the man with a just cause. The legal profession is prone to procrastinate. Compliance with the forms of law instils the habit of delay. To postpone action until an important witness for the opposing side moves away or dies, or until some other desired event happens, is a favorite device. A banker of long experience tells me that the average business man takes considerably less time to settle an estate than the average lawyer. In the state of New York since 1848, three out of every five cases have been decided upon some point in procedure in place of being decided upon their merits. In other words, the doing of justice has been subordinated to the enforcement of technical rules. The plaintiff in a divorce case failed to secure a decree because the words, "Action for divorce," were written on the back in place of on the face of the summons to her husband, as required by the statutory code. If the action had been to recover a penalty, the "general reference to the statute "should have been placed upon the back of the summons.[2] Failure to do justice, consequently, is sometimes due to the fact that the statutory codes governing procedure leave the courts no discretion. When one considers how much the usefulness of the Interstate Commerce Commission was for years impaired by judicial obstruction, it is
