N.J. Constitutional Convention: Vol. 4, Page 315

Tuesday, July 8, 1947 (Afternoon session)

were many judges who were tempted to interpret. It will be conceded, at least among judges, that some of us entertain a difference of opinion, very often, as to the application of rules in certain situations. There were many of us who were - and I'm not characterizing myself in saying "us"; I am taking the onus of those with whom I don't agree as well as the onus of those with whom I do - there were many of us who were reluctant to yield to the changes that were embraced, even though some of them were not drastic. There were those of us who were sympathetic with traditional systems because we grew up with them; we learned to like them; they had become our working companions for years, and as a result we were reluctant to accept a change.

Now, I said that has led to the judges yielding to the temptation of interpreting the rules, and despite the 20-odd volumes, I think, in use, there are actually only six volumes of reported cases. It is probably running into the seventh now - since that time. That's due, however, not so much to the judges writing, as to the fact that after the new rules were adopted the publishing company also established a separate reporting system for the Federal Rules of Civil Procedure, and that is now termed Federal Rule Decisions. Prior to that the rules of civil procedure, at least their interpretation as they arose in the cases - their interpretations were in Federal Supplement, which is a set we still have.

The writing the judges have been tempted to do is not because the Federal Rules of Civil Procedure have complicated it in any way, but frequently we write, I suppose, because the questions strike us as interesting. There are many times we shouldn't, and there are many opinions that the law book company shouldn't publish, but they insist upon publishing. We have no control over that.

MR. BROGAN: They sell them.

JUDGE SMITH: Yes, they sell them, and in saying it has produced volume after volume of reported decisions, it is well to remember that in many instances the decisions should not have been reported, and sometimes, if the judge had his way about it, they would not have been reported.

The Federal Rules of Civil Procedure have led to no complication, insofar as that is concerned. I mean, there is nothing that would strike apprehension into the heart of the average lawyer, because they are a simple body of rules.

Now, in talking about the change this morning I said it would be a mistake to freeze into the Constitution a system that was not readily subject to change. The simplicity of change is also embodied in the Federal Rules of Civil Procedure.

After an experience of more than five years, these 86 rules have been changed by a meeting of the original rules committee appointed by the Supreme Court. They are making a study, such as

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