The Problems of Appellate Courts 681 as to obtain comparative data, is perfectly equity cases in the same way, in order to practicable and may be carried on in such try out the feasibility of this system for a way as to impose no burden upon litigat- dealing with general equity litigation. ing parties. I think a sympathetic judge can do a In the circuit court in Detroit, the judg- great deal in the way of encouraging very es have been experimenting with a new profitable experimentation, without any system of handling mechanics' lien cases real hardship to parties. and have developed a very effective plan. The third sort of data available is the The old method of litigating all the formal observation of the results of various meth- issues involved in such cases produced ods employed under different conditions very unsatisfactory results. Therefore all over the world. This will require the they tried having the litigants represented co-ordination of many observers and ne- in court by attorneys without witnesses, cessitate the development of a comprehen- who wererequired to state their respective sive system of statistics. Legal statistics positions. The stenographers take down have never received adequate attention be- these statements, on the basis of which the cause they have never had a place in the the precise court determines and fixes traditional system that depended only on points in actual dispute. These are usual- precedent. ly few and simple in lien cases. The case If legal research could be successful in is then referred for the taking of deposi- tions on the real issues so ascertained, and carrying on a systematic study of these the evidence when prepared goes to the various processes, methods, and experi- judge for decision. By this means many ments, in as thorough a way as studies are cases may proceed simultaneously under constantly carried on in medicine, and, in the direction of a single judge. fact, everywhere outside of the law, I The presiding judge of the Detroit cir- think it would go far towards restoring cuit court, being of an experimental frame the prestige of the legal profession, and of mind, has recently suggested to the bar would give society what it is entitled to re- of the city that if they desire it, he will ceive in the way of public service from assign a judge to handle other kinds of the profession. The Problems of Appellate Courts By WALTEIR F. DODD Profe8sor of Law, Yale Uniersity [Address delivered at the Twenty-Seventh Annual Meeting of the Association of Anierican Law Schools in New Orleans, Decernber 30, 1929] islative departments, provision was made C highlyOURTS specialized of review parts have of nowour judicialbecome that the judges of the superior court (the system. This was not the case in the earli- trial court) should constitute the Supreme 1 er history of state and federal judicial sys- Court of Errors. During a long period tems. During the greater part of the pe- under the federal system, justices of the riod between 1818 and 1848 the Supreme United States Supreme Court went upon Court of Illinois was composed of judges circuit. who did trial work as well. When Con- Some vestiges still remain of the union necticut, in 1806, separated judicial func- of trial and appellate work. In Connec- tions from those of the executive and leg- 1 See Reporter's preface to 1 Conn., at p. xxii. HeinOnline -- 6 Am. L. Sch. Rev. 681 1926-1930 682 The American Law School Review ticut, judges of the Supreme Court of Er- protect themselves by advising parties to rors are also judges of the superior court, seek their remedies in the trial court, un- but they have long ceased to act in the tri- less the issue sought to be presented is of al of cases. The chief justice and asso- great public importance. ciate justices of the Supreme Court of In the growth of an appellate organiza- New Jersey (who are also members of the tion independent of that for the trial of Court of Errors and Appeals) are by law cases, there has been a tendency to have charged with general trial duties, but ad- different judges for the two sets of courts. ditional judges have been provided to hold This result has come about partly as a circuit court in the absence of a justice of matter of policy and partly because of the the Supreme Court. In Maine until re- .pressure of appellate business. In Illi- cently the justices of the Supreme Court nois, judges of the Appellate Court. (the performed trial duties, but they were intermediate court of review) are desig- largely relieved of these duties by an act nated from the circuit court, and are pre- of 1929 enlarging the jurisdiction of the sumed to combine trial and appellate work, superior courts.- and in the less populous appellate districts Massachusetts presents peirhaps the they do this, although the mass of busi- most interesting illustration of a gradual ness in Chicago renders such a union of severance of trial and appellate jurisdic- functions substantially impossible. In tion. The Supreme Judicial Court of that New York, justices of the Appellate Di- state had and exercised, as late as fifty vision are designated from among the jus- years ago, original jurisdiction in impor- tices of the Supreme Court (the trial tant actions at law, and had exclusive ju- court) but are constitutionally restricted risdiction in equity suits. By transferring in the exercise of trial functions.5 Obvi- such jurisdiction to the superior court or ously, where the same judge performs by authorizing the Supreme Judicial Court both trial and appellate duties, it is, neces- to make such transfer, most of the trial sary to adopt some nile by which he shall work has been gradually shifted to other not, as an appellate judge, pass upon his courts. Jury terms of the Supreme Judi- actions as a trial judge. But embarrass- cial Court have ceased, and it has had the ment may arise where a number of mem- opportunity to concentrate more definite- bers of the court of review have acted up- ly upon problems of appellate review, al- on a case in its earlier stages. In New though the judges of this court still per- Jersey the Supreme Court ordinarily sits form numerous trial functions.2 in three parts (of three judges each) I but Through processes such as have just recently the nine justices, by sitting in been indicated; trial and appellate func- banc upon a case, prevented its review in tions have largely been separated. In the Court of Errors and Appeals, because some cases, as in Connecticut, appellate nine of the sixteen members of that court tribunals have been given no original ju- had disqualified themselves by passing up- risdiction, but in others, certain cases, may on the case in the lower court.' still be originated in the appellate tribu- Normally, if a court of review is com- nals. 'The original jurisdiction of the posed of five, seven, or nine members, no United States Supreme Court is limited to particular hardship is occasioned by the 4 small scope by the Federal Constitution, fact that one member disqualifies himself but in states where there is a wider scope by action below, and the difficulty is not of original jurisdiction, courts of review insuperable, even with a higher court of have ii many cases found it necessary to three, as is the case with the Illinois Ap- pellate Court. Nor would such disquali- 2 Laws of Maine, 1929, pp. 110-116. 3 First Report of the Judicial Council of Mas- 5 New York Constitution, art. VI, sec. 2. sachusetts 1925, pp. 10-14; Third Report, 1927, 6 Rule 150 in 2 N. J. Misc. R. 1256. p. 47. Mass. Statutes, 188:3, ch. 223. For the 7 In re Hudson County, 144 Atl. 169 (1928). development of the equity jurisdiction of the The Court of Errors and Appeals is composed Supreme Judicial' Court before 1883, see Edwin of sixteen members, the chancellor, the chief 11. Woodruff, Chancery in Massachusetts, 5 justice and eight justices of the supreme court, Law Quarterly Review, 370 (1889). and six specially appointed judges who need not 4 Marbury v. Madison, 1 Cranch. 137 (1803). be lawyers. HeinOnline -- 6 Am. L. Sch. Rev. 682 1926-1930 The Problems of Appellate Courts 683 fication occasion difficulty where other temporary relief alone'is sought, Supreme judges may be brought in to replace the Court commissioners have often been pro- disqualified member. But the establish- vided to aid in the work of the court. In ment of courts of review with separate or- a number of states the highest courts are ganization and separate personnel has now authorized to sit in sections or divi- been little influenced in this country by sions. the fear that prejudice may exist because In some states efforts have been made a member of the court has already com- by constitutional and statutory provisions mitted himself by presiding at the trial of to meet the increasing burden of appeals a case. The development of specialized by providing for temporary additional courts of review has been primarily oc- judges, or for additional courts to be tem- casioned by the constant and increasing porarily created. In New York the Con- pressure of judicial business. stitution provides that "whenever and as It has not been possible to meet the pres- often as a majority of the judges of the sure of increasing judicial business mere- Court of Appeals shall certify to the gov- ly by separating the trial and appellate ernor that the said court is unable by rea- functions.