RESEARCH SURE TO PRESERVE COMMON LAW, CLAIMS POUND

Chicago, III., June 3, 1926.--Dean Roscoe Pound of the Harvard Law School addressed the Harvard Law School Alumni today at a luncheon at the Harvard-Yale-Princeton Club. He gave the Alumni his reasons for the drive launched recently by the Law School to obtain funds for the establishment of five research professorships

Discussing "The Scope and Purpose of Legal Research," Dean Pound said: "In an age of expanding trade the operations of business could not be confined by the straight jacket of legal conceptions and legal institutions worked out for the simpler commercial conditions of Feudal England. Then it took an act of Parliament to bring courts to recognize an established instrument of commerce. Today a simple legislative act will seldom suffice. Also today the economic structure is so complex and so delicate that we cannot wait for things to work themselves out at a great cost in friction and waste.

Overmuch Lawmaking Ineffective

"Too much law making strains the judicial and administrative machinery and makes them less effective for their purpose. Cumbrous, expensive, dilatory judicial administration and a substantive law, inadequate to the new conditions of manufacturing and marketing and industrial organization strain the machinery of legislation and of administration, since they cause us to turn from the judicial department in matters that ought to be dealt with judicially, and attempt vainly to do the work of courts by legislation or by administration.

"Business men are but too well aware of the friction and waste involved in the functioning of our legal system under the urban, industrial conditions of today. Under modern methods of manufacturing and marketing and finance, there are contacts with statutes and rulings and commissions and administrative officers and courts at every turn. Legal advice is needed at every turn. But much of this legal advice has to proceed haltingly on hopes and analogies and considerations of what chances are involved and of what chances are involved and of what objections are likely to made any by whom. Yet the very foundation of our economic order is certainly and uniformity. When the legal system fails to provide for new business institutions of new business methods the tendency is to resort to legislation or to provide lay tribunals, as many states are doing through arbitration statutes or to set up new administrative tribunals.

"Experience is showing that these expedients are by no means diminishing friction nor eliminating waste. In the end we shall have to fall back upon careful, continuous, scientific research for the underlying conditions, for the limits and scope of the problem, for the materials available for solutions, for the factors involved in each solution, and for the means of making our legal solutions effective in action when devised and formulated.

"One field of research then is the functioning of our law with respect to the needs for modern business organization; the adaptation of our modes of finding and applying legal precepts, our judicial organization, and our administration of justice, to the modern system of production and distribution which has arisen since our legal apparatus was devised and has given us business institutions new to legal thought and out of line with traditional legal ideas.

"Our economic ventures presuppose reduction of operations to their lowest terms in point of effort and expense. We cannot tolerate that the legal part of those operations should continue cumbersome, dilatory, uncertain and expensive, while all else is moving swiftly, smoothly and without waste. Business men have a right to call upon us to do for our operations what they have been doing for theirs and we must do our part as they have been doing theirs. We must study the workings of the law, see how it falls short and why, and must apply our inventive powers to find better methods, better machinery and the principles of a better system.

"Let study of how to make the law effective with respect to the exigencies of business stand for one example of research work. Another is study of the whole field of criminal law, criminal procedure, the administration of criminal justice, and the legal phases of penal treatment. Still another is the respective provinces of adjudication and administration; how to achieve a proper balance between treatment of individual cases as types of generalized classes of cases, governed by broad principles, and treatment of each particular case as unique. Still another is preventive justice something no less fraught with possibilities than preventive medicine. Still another is the limits of effective legal action; a study of what we may hope to do through law and legal machinery."

Law Schools Are Agreed

Dean Pound emphasized that there is general agreement that the law schools must engage in and stimulate research work, a field in which the Harvard Law School is actively engaged and for the furtherance of which work an endowment fund is being raised.

"The research of which there is crying need", he said, "is the research that American law schools are imperatively called to carry on; it is investigation by legal scholars who devote their lives to the study of some field of the administration of justice, to some field of the legal adjustment of human relations, in order to teach us what its problems are and how to meet these problems effectively by means of the law.

"Let us note what happens as things are, and what might happen if legal research were endowed and organized and carried on as in almost every other field of human endeavor.

"Recently the secretary of the National Industrial Council published some significant figures as to American legislation. This is what might be styled an off year in legislation. Only ten of the forty-eight states have had legislative sessions this year. None the less, with one state yet to be heard from, 4100 new laws have been put upon our statute books, as compared with 3378 in the last off year. In 1925, the last year in which the majority of state legislatures were in action, over 11,000 new statues were enacted.

No Stop on Lawmaking.

"Thus, despite the general conviction that there has been statutory over-production, despite denunciation of over legislation on every hand, the making of laws goes on merrily with no sign of diminution. Nor is it hard to see why. We have set up an elaborate law making machine. We have provided for the study of legislative drafting and for the machines of law making. But for the basis upon which to make laws, for the materials out of which they are to be made, for the defining of the provinces of legislative law making, of judicial finding of law and of administrative application of law, respectively, we have done and are doing little or nothing.

"Functional studies of the law in action are by no means without precedent. The work done by Professor Williston is preparation for the Uniform Bills-of-Lading Act, and the studies by Professor Isaacs, of the School of Business Administration, as to Sales Agencies in relation to Agency, as to business securities and the law of mortgages, and as to the practice of corporate promotion and the legal conceptions available for the resulting problems, suggest what may be done and should be done for the whole field of business law. Indeed, what is proposed, and what must come, is a continuous scientific study of the law in action, with reference to the law in the action, as distinguished from exclusive study of the law in the books; doing thoroughly and completely for great departments of the law what has been done modestly but effectively for smaller areas of business law by Professor Williston and Professor Isaacs.

Such things may well appeal to laymen. But I have high hopes that they will appeal to the bar also. For in the end the results of legal research must aprove themselves to the bar or the investigations will have been in vain. And a program of legal research may well appeal to the bar, if for no other reason, because through research we may most assuredly preserve the common law as the law of our several states and the conspicuous bond of union among English-speaking peoples.