The Pathfinders

Chief Justice Earl Warren opened the meeting with a cry for help. U.S. courts must "repair the dislocations of a changing, burgeoning and increasingly complicated social order," he said. The law's delay is worse than ever. "There can be no justice in the real sense when litigants must wait years for their cases to be heard and decided."

On that theme, the 1,500-member American Law Institute opened its 41st annual meeting last week at Washington's Mayflower Hotel. Unlike conventional conventioneers, the 500 members present were there for sober work. The institute (dues: $35 a year) taps only the ablest, most dedicated judges, lawyers and law professors in the land.

High on last week's agenda was a Warren-inspired project, financed by the Ford Foundation, to ease the workload in case-clogged federal courts. A key problem: the right of litigants from different states to use federal courts in cases involving more than $10,000. Such "diversity suits" (18,990 last year) can be halved in federal courts, urged an institute preliminary report, if the old right is sensibly curbed so that many suits do not automatically escalate into federal cases. If the institute has its way, for example, a person suing in his home state will no longer be able to ask for federal jurisdiction simply because the defendant is a citizen of another state.

Clarifying & Simplifying. Arcane as they may sound to laymen, such subtleties reflect the institute's lofty goal: "To promote the clarification and simplification of the law and its better adaptation to social needs." Source of that idea was Elihu Root, then "dean of the American bar," who in 1923 founded the institute with the cooperation of such other legal eminences as Benjamin Cardozo, Learned Hand, Roscoe Pound, Harlan Fiske Stone and Harvard's Samuel Williston, author of such law-school classics as Williston on Contracts. "The two chief defects in American law," they fretted, "are its uncertainty and its complexity." This led to the question: what exactly was U.S. law?

With hefty grants from the Carnegie Corporation, the institute began its now monumental "restatement"--a gold-panning search for the essential principles of U.S. law. Codified in 24 volumes, the results clarified everything from Agency to the Law of Trusts--each field exhaustively panned by a topflight academic (or "reporter"), then endlessly sifted by expert "advisers" in the field, then refined by the institute's 30-member council and finally approved by the full membership.

Business & Crime. All this took years --17 for the five-volume Restatement of the Law of Property--and meanwhile the courts ground out new decisions that often outdated the work. In 1951 the institute got enough Mellon money to start continuous revision and a second series of restatements, which is still far from finished. Despite their difficulties, the present restatements are so authoritative that by last month they had been cited in 32,422 appellate court decisions alone.

Jointly with the American Bar Association, the institute now runs a nationwide program of "continuing legal education" that aids lawyers through courses, pamphlets and a 16,000-subscriber magazine, The Practical Lawyer. The institute is completing a restatement of foreign-relations law, is mulling over others on the laws of labor, copyright, and such land-use problems as zoning (one of U.S. law's messiest fields). In recent years, the institute has gone beyond restatements of common-law rules in an effort to improve the law through legislation--honing model codes that state legislators may take as guides. Most effective so far: the 1952 Uniform Commercial Code, which coordinates all business transactions and has been enacted by 30 states from Oregon to Massachusetts. Equally impressive is the 1962 Model Penal Code, a blend of enlightened law and behavioral science that sharply clarifies such emotion-clouded problems as insanity, obscenity, sex offenses, and the death penalty. Widely cited, copied and acclaimed, the code has already stirred criminal-law revisions in states from New York to California.

"The purpose of the law is to discipline and harmonize, not to reflect momentary public passions," says the penal code's chief reporter, Columbia Law Professor Herbert Wechsler, who became the institute's director last year. A noted critic of the Supreme Court --for its reasoning rather than its decisions--Wechsler faults the court for being overly attentive to narrow claims. He seeks "neutral principles" transcending particular cases and parties. For four decades, that has been the goal of the Law Institute itself. And Wechsler obviously hopes to keep it that way.

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