N.J. Constitutional Convention: Vol. 4, Page 232


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947 COMMITTEE ON THE JUDICIARY
Thursday, July 3, 1947 (Morning session)

the Chancellor and to the equity precedents. It is only in a rare case that I found a conflict between Vice-Chancellors administering equity under the Chancellor, whereas in New York each justice of the Supreme Court is a law unto himself. There is no Chancellor to whom he is subordinate. When he administers equity, he is the court. And in my compilation of decisions in New York State I found that in almost every single case in equity you could find almost as many decisions on one side as on the other, because the justices who had administered equity felt that they were entitled to have their own views and were not bound by the precedents of others who were coordinate with them.

Now, take what you have today in the unified system in federal court. I was chosen years ago to debate with Professor Morgan and with Dean Clark, now Judge Clark of the Second Circuit, on the efficacy of the then drafted federal rules, and I was considered a rebel because I had used the Practice Act of 1912 of New Jersey as my model.

In the unification there you will find the bench and bar overburdened, not so much with substantive law, but with the varying interpretation of federal rules. I think in the few years that the federal rules are in existence there are already five large volumes of precedents. And then, there is the Advance Reports which comes out every week, and you just simply can't follow the interpretation by the federal judges of their own federal rules. In addition to that, just as in New York, the federal courts are not bound by the decisions of other districts, nor are their appellate divisions or separate courts of appeal bound by the other circuits. If you pick up a volume of the United States Supreme Court Reports any day it comes out, you will find a judge making a statement something like this: "This case comes from the Third Circuit. Because of a diversity of opinion with the Second or Ninth, we are reviewing it."

Now, if you have that sort of system established in New Jersey with a Court of Chancery abolished - and I use the term "abolished" because of Justice Colie's statement that he cannot understand the term "abolished" as applied to the Court of Chancery - you would have each judge a coordinate judge. He will not be a member of the Court of Chancery. He will be a judge in his own right - a king in his own right - and you will have a contrariety of opinions by these coordinated judges, and you will magnify the appeals that will have to be taken to the Court of Appeals on equity matters, because there are conflicts between the coordinated judges. In New York State -

MR. McGRATH: Can you give one example of that?

MR. KAUFMAN: I would say - I don't quite get you, Judge


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