N.J. Constitutional Convention: Vol. 4, Page 182


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Wednesday, July 2, 1947 (Morning session)

Dean Pound. I recall distinctly that when I went to law school they referred to three or four states as having outstanding equity opinions. New Jersey was one of them. New York, incidentally, in the earlier days, but after the merger, had brilliant equity opinions, shortly after Chancellor Kent's time, and the equity standing in New York continued for quite a while.

When you have impairment of the standing of particular courts, the result is reflected in law school studies. That has been true of New Jersey. If you check through your law school material and compare the old case books that were used in law school, say 25 years ago, with the ones that are in use today, you will notice a very substantial drop in New Jersey equity cases.

JUDGE BRENNAN: That ignores reality, too. After all, to pass the test of validity and to be the law of the State, the decision ultimately goes to the Court of Errors and Appeals, doesn't it?

MR. BROGAN: That's right.

VICE-CHAIRMAN: You recall to my mind that Judge Adams was a lay judge, as was Judge White -

MR. BROGAN: Judge White was a judge of great distinction.

VICE-CHAIRMAN: Of outstanding distinction, but they were assigned not even to law courts, but as lay judges.

MR. PETERSON: They were lawyers, however, weren't they?

JUDGE BRENNAN: Yes. You have one now in New York, McKenna.

MR. PETERSON: It would seem to me that that is an exception to case law that has been set down. When an opinion has once been written, covering all phases of a subject, and been filed, you refer to it as being law and, therefore, the opportunity for writing new law or a new interpretation has gone or hasn't been taken advantage of. Maybe in New Jersey we know what is law or equity - when I say law I mean equity too.

JUDGE BRENNAN: Well, opinions of the court of equity, to be the law, must all pass the muster of the Court of Errors and Appeals.

MR. PETERSON: That's true, but the United States Supreme Court has upset decisions a hundred or a hundred and fifty years old.

JUDGE BRENNAN: It isn't so at all that the opinion of an equity judge is a finality.

MR. BROGAN: Well, a great many are affirmed on opinions below.

JUDGE BRENNAN: That's true.

MR. BROGAN: And a great many are modified or reversed on separate opinions.

VICE-CHAIRMAN: May I suggest, unless there are some other questions of Judge Brennan, that we permit him to leave.


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