Reforming The Law
September 1991 | Volume 42, Issue 5
As early as the 1860s the need to amend it in New York State was clear. New York’s Supreme Court (which, despite its name, is the state’s lowest court for serious cases) was at that time divided into eight districts. Although the judges were elected by district, their powers ran to the borders of the state. Further, they were free to make rulings on any case brought before them, regardless of its status in any other district. This had not presented a problem in the 184Os, when time and distance kept the judges from interfering with one another.
The railroad and the telegraph, however, changed all this, and lawyers began to go judge shopping. If one lawyer induced a judge to issue a ruling in his favor, his opponent would try to get a second judge in another district to vacate the order. Sometimes there would be three or four judges issuing conflicting orders in a single case. In 1869 an English observer described the results: “In New York there is a custom among litigants, as peculiar to that city, it is to be hoped, as it is supreme within it, of retaining a judge as well as a lawyer. … it [is] absolutely essential to each party to have some magistrate in whom they could place implicit confidence in an hour of sudden emergency.”
The Field code also gave the judges considerable powers in ex parte proceedings—those in which only one side of the case is heard and any rulings are intended only to protect life and property until a full hearing can be held. The transportation and communication revolution largely obviated the need for this wide judicial discretion, with its considerable potential for abuse, and Field worked long and hard to get these procedures changed.
But New York State was fast sinking into the pit of political corruption that would come to be epitomized by Boss Tweed. Legal reform was the last thing on the minds of the state legislature and some of its Supreme Court justices who were profiting handsomely.
There once was a time when the law desperately needed reform and it was the lawyers, mirabile dictu , who reformed it.
To many lawyers and observers, the New York State law had become a real danger to New York City’s preeminence as a commercial center. “Law does not protect property,” the New York lawyer George Templeton Strong lamented in his diary, a lament that has a startlingly modern ring to it. “The abused machinery of law is a terror to property owners. No banker or merchant is sure that some person calling himself a ‘receiver,’ appointed ex parte as the first step in some frivolous suit he never heard of, may not march into his counting room at any moment, demand possession of all his assets and the ruinous suspension of his whole business, and when the order for a receiver is vacated a week afterwards, claim $100,000 or so as ‘an allowance’ for his services, by virtue of another order, to be enforced by attachment. No city can long continue rich and prosperous that tolerates abuses like these. Capital will fly to safer quarters.”
By the late 1860s the New York State judicial system had become a national disgrace. “The Supreme Court is our Cloaca Maxima ,” Strong wrote in 1870, “with lawyers for its rats.”
But the rats were moving to change things. The shrewder among them realized that their long-term self-interest required an honest, effective judicial system. Just as Strong was writing, a group of lawyers, led by the former U.S. Attorney General William Maxwell Evarts, came together to organize the New York State Bar Association. Its purpose was both to police the profession and to lobby for legal reform.
In a speech that was widely printed in the newspapers, Evarts deplored how far standards had fallen in New York. In the early days of his practice, he said, “for a lawyer to come out from the chambers of a judge with an ex parte writ that he could not defend before the public, would have occasioned the same sentiment towards him as if he came out with a stolen pocket book.”
The new bar association’s opportunity came with the fall of the Tweed Ring the following year. Reform was suddenly the order of the day as the politicians not directly implicated scrambled to keep their jobs. The bar association contributed thirty thousand dollars, a very large sum in those days, to help pay the expenses of prosecuting corrupt judges, and they were swept out of office. It pushed through reforms, including new procedures forbidding judges to interfere in cases not before them and issuing ex parte injunctions without good reason.
Thanks to David Dudley Field, William Maxwell Evarts, and other members of the bar, New York State went in a few years from having the worst legal system in the country to having one of the best. Can their professional descendants do less today?