N.J. Constitutional Convention: Vol. 4, Page 356


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Wednesday, July 9, 1947 (Morning session)

bench and bar to decide that question. The day following the announcement of the membership of the Judiciary Committee, the Newark Evening News said (reading):

"Theory behind naming five laymen to the judicial committee was obviously intended to have the group function independently of the courts, but how the selection will be accepted by members of the bar became a major point of speculation as soon as the names were announced. There were many lawyers among the delegates who wanted to have a hand in drafting the judicial article."

The following day the Newark Evening News found it necessary to write an editorial apologizing for the presence of laymen on this committee.

Although I have the highest regard for our New Jersey bench, and for my colleagues at the bar, I respectfully submit that the Judiciary Committee and the Constitutional Convention should not arrive at its decision on the basis of a poll of the members of the bar, and solely on the testimony of judges and lawyers, no matter how eminent and eloquent. This question is much more important to the public than it is to the lawyers. The lawyers have gotten along very well with the present system for almost two centuries, and it won't hurt them one bit if it continues. That is why one cannot depend too heavily on the opinion of the lawyers. As Professor Borchard says in his Declaratory Judgments, a recent book (Second Edition, page vii): "The simplification of procedure is not as insistently demanded by judges and practitioners as it ought to be by litigants who pay the price of obstructive technicalities."

Professor Borchard goes on to speak of "the many obstructions to the administration of justice which the current legal system incorporates and tolerates," and he says (reading):

"These obstructions are cherished by many judges and lawyers as indigenous to the system and to the judicial process. They are inclined to forget that both Bench and Bar are merely servants of the people, the better to enable the administration of justice to be accomplished.

This lack of social perspective accounts for the inhospitality of certain judges, if not of the system itself, to the simplification of procedure ...

New Jersey by its persistent refusal to break down the separate administration of law and equity, is a flagrant example of this denial of justice. The poor glazier in Moresh v O'Regan was in the New Jersey courts for four trials and appeals before he could establish the simple fact that he was not subject to the requirements of the insurance law."

Professor Borchard continues:

"Procedure should be the 'handmaid of justice,' a means to an end. Instead, in all mature legal systems cultivated by a professional guild, from the earliest to the latest, procedure tends to become rigid, stereotyped, and over-technical, an end in itself, often seemingly oblivious to the practical needs of those to whose ills it is designed to minister. Litigants thus often become pawns in a game, the social cost of which is excessive and the result of which is frequently unnecessarily cumbersome and socially undesirable. Substantive rights often become the incidents of procedural fencing." (Page xiii)

"To meet this criticism, all systems have periodically undertaken re-


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