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A Prospectus for Reform

Francis A. Allen^*

    The one thing certain about the age in which we live is that we cannot stand still. We cannot escape or outwit the forces of change by nonaction; for, in any event, the social context in which we live and work will alter, as will our relations to it. Accordingly, the only issue remaining is whether or to what extent change is to be the product of thought and deliberation.

    Reflections such as these must have crossed the minds of many lawyers during the course of the past decade. There is nothing new, however, about the problems of accommodating law to altered circumstances. The common law has survived the centuries because it contributed a shrewd awareness of the changing needs of men, and because its method of adjudication constitutes an effective mechanism for orderly change and development. Those who practice in the common law system are routinely engaged in processes of law reform and regeneration. The creative impulse of the common law has not run its course, and all evidence indicates that we shall continue to rely on the evolution of judge-made law as one important means to insure the continued relevance of the legal system to the new conditions that beset us. No lawyer needs to be told, however, that we are, and for a long time have been, living in an age of legislation and administration. Judgments may differ about some uses made of legislation, but few of us would deny that the wise applications of legislative power and of judicial and administrative rule-making power are indispensable to the satisfactory functioning of modern society.

    The continuing necessity for law reform has not escaped the attention of the American bar. Nor has the appreciation of these needs been confined to any single segment of the profession. If one restricts his attention to leaders of the bar in the last generation who were deeply involved in law reform activities, he will encounter such names as William Howard Taft, Roscoe Pound, Charles Evans Hughes, Elihu Root, Louis D. Brandeis, and Willis Van Devanter. The political and social values of these men were diverse and in some measure conflicting. But one characteristic they shared in common: they were lawyers strongly committed to improvement of the law and its administration through conscious effort.

    Although law reform has been one of the historical preoccupations of the American legal profession, the problems of adapting law to the conditions of modern society have acquired a wholly new magnitude, complexity, and urgency. We are passing through a knowledge explosion of unprecedented dimensions; and the social problems following in the wake of the new technology present challenges to the wisdom and ingenuity lawyers unlike anything encountered in the past. We are confronted by movement of social protest that questions the efficacy of the law as an instrumentality of social justice, and which asserts that the administration of law has frequently been used as a device to frustrate the legitimate aspirations of those seeking to, participate in the benefits of American society. We live in a world characterized by a radical disorganization of international relations, and in which human survival is threatened by irresponsible uses of military power.

    No one will assert that problems of this scope concern only lawyers or that fundamental solutions are likely to result simply from exercises in law reform. Yet the legal order figures prominently in each, and we can reasonably assume that the lawyer's contribution to their solution will be of genuine importance. No new law journal can aspire to address all of the great problems of these times, even those issues of direct relevance to the improvement of law and the administration of justice. But great problems often consist of an aggregate of smaller problems; and a journal that seeks conscientiously to identify some of the areas in which intelligent action is required and offers guidelines for that action, can be expected to make a worthwhile contribution.

    This is the first issue of PROSPECTUS: A JOURNAL OF LAW REFORM. Since we do not suffer from a lack of legal periodicals in the United States, the launching of a new law journal ought to be accompanied by a statement of purposes and (if necessary) justification. It can fairly be said that this publication aspires to achieve two principal objectives. First, it seeks to report efforts to improve the law and its administration and to stimulate thought and constructive action to this end. Some of the studies published in this journal may concentrate their attention on the needs for law reform in a wide variety of areas. One of the remarkable and lamentable aspects of the age of legislation and administration in which we live is the poverty of the resources we devote to identify the needs to which response is required and to audit the effectiveness of measures already undertaken. Law reform does not necessarily consist of enlarging legal regulation. It may on occasion demand the cessation of legal intervention in a field where experience has demonstrated that the existing law is not achieving its intended purposes, or in which achievement of the purpose is accompanied by unintended consequences too serious to tolerate. The problem is that the efforts of legislatures, law revision commissions, and governmental boards of inquiry although highly important, are insufficient, standing alone, to assure identification of the needs for law reform. This journal can be expected to address this problem and, in so doing, render a valuable public service. It will also report experience and contribute new thought on the way and means of law reform. We may hope that it will serve as a clearinghouse of information about interesting and significant experimentation throughout the country and perhaps occasionally in other countries. It will, moreover, serve as a vehicle to communicate new ideas in the field and stimulate public discussion of promising and untried proposals.

    The interests of this journal are not focused narrowly on any particular areas of law reform. It will be concerned with issues relating to the improvement of both private law and public law, judicial administration, law enforcement, administrative regulation, and much more. In short, it seeks to promote the improvement of law and its administration in all areas in which needs are disclosed and in which useful proposals can be advanced. No doubt, many of the problems to be discussed will be those with an important local impact. One of the interesting developments of our times is the degree to which the principal problems of our domestic policy involve interests that are immediate and local -- problems of local government and the quality of life in our cities, the control and prevention of crime, the physical environment in which men work and live. But the journal's attention to local problems does not imply a parochial orientation. Michigan problems will be grist for the mill; but, at the same time, its interests will not be limited by state or regional boundaries. Finally, the approach will be essentially practical. The emphasis will be on practical problems and practical solutions.

    The second principal objective of this publication is to enlarge the opportunities for law journal experience of students at the University of Michigan Law School. A substantial portion of the contents will consist of student writing. The potency of law review participation as an educational device has been clearly and repeatedly demonstrated over a period of three-quarters of a century. Nor is there any room to doubt that law students are capable of producing written work of substantial value to the bar and others concerned with social problems in which the law is significantly involved. The need for extending the advantages of this experience to a larger fraction of the student body is particularly acute at a time when the general levels of competence of our students have markedly increased and when it has become clearly apparent that the capacity to profit from law journal experience and to produce creditable work is not restricted to a small group of those enrolled. Although the purpose is to enlarge opportunities for law journal participation, this publication will not in all respects be bound by the traditions or format of existing American law reviews. It will seek innovation in presentation and content, and will not hesitate to employ unorthodox means whenever these give promise of achieving the journal's objectives.

    A new journal does not, like Athena, emerge full grown from the brow of Zeus. The birth of PROSPECTUS has been attended by a full measure of labor pain. No doubt its progress toward maturity will be accompanied by further difficulties, frustrations, and false starts. Nevertheless, much that is associated with this venture provides a sound basis for future development. Special thanks are extended to Jason L. Honigman, Esq. of the Detroit bar, who has made indispensable contributions of interest and money to the founding of this journal. Mr. Honigman, a distinguished alumnus of the University of Michigan Law School, successfully championed the establishment of the Michigan Law Revision Commission and is currently serving as its first Chairman. In this capacity and in his numerous other activities, he is enhancing the public life of the state. Among the many who devoted invaluable efforts to this undertaking was the late Professor Frank E. Cooper, who graciously and generously consented to serve as Faculty Editor. Professor Cooper's untimely death before the first issue appeared has saddened us all. He will be sorely missed. Finally, I wish to thank Mr. David L. Gallies, Managing Editor and his loyal and hard pressed student editorial board. They understand better now than when they first assumed their duties, the frustration and rewards that are the lot of pioneers.

    PROSPECTUS: A JOURNAL OF LAW REFORM thus begins its career. It is a lusty infant, and the prospects of sound and healthy growth are good.

* Dean and Professor of Law, University of Michigan Law School.   A.B. 1941, Cornell College; L.L.B. 1946, Northwestern University.

 

The Journal: After a Decade

Alexander R. Domanskis^*

    Our legal institutions must have the flexibility to adapt to rapidly changing conditions. Often, laws are passed and implemented at a time when changed circumstances make them outmoded or unworkable. The legal community thus faces an enormous and important challenge: law reform. Legislatures, the framers of policies and the makers of law, need suggestions for law reform. Courts, the interpreters of the laws and the arbiters of private and public disputes, need guidance in dealing with new situations and new statutes. Administrative agencies, the delegated experts carrying out the legislative mandate, need guidance in defining their functions and roles. Suggestions and solutions for the efficient and just functioning of these institutions are not easy to formulate. Nevertheless, without continued evaluation and examination, there is an ever-present danger of institutional stagnation resulting in procedural and substantive inequities. The legal community must maintain a constant flow of new ideas and approaches to a variety of legal topics and problems. The University of Michigan Journal of Law Reform was conceived to meet the need for communicating recommendations for law reform and to provide the basis for thoughtful discourse.

    The Journal is now beginning its second decade of publication. This is an appropriate time to reflect on how well the Journal is realizing its original purposes. The publication was established to satisfy two principal goals: to provide a forum in which law reform can be examined and in which the administration of justice in all its aspects can be improved and to expand student opportunities for legal analysis, research, writing, and editing. In attempting to lay the groundwork for law reform and to provide guidance for the legal practitioner, the Journal has published a wide variety of articles; There have been articles on particular subject areas, case comments, notes on proposed and recently adopted legislation, proposed statutes, as well as reports of empirical research. The substantive areas covered have been as diverse as the methods of presentation. Furthermore, though professors have contributed significantly, the bulk of the Journal's articles have been written by students. In only three issues a year, the Journal provides as much space for students as other law reviews provide in as many as eight issues.

    Certainly, my law school experience was greatly enriched by my participation on the Journal as a staff member, as an author of an article, and as an editor. The significant quantity of legal material to be digested in law school instruction often results in narrowly focused classroom discussions which rarely consider broad social and institutional problems. Through the Journal, I had the opportunity to probe more deeply into some of the legal issues which first captured my attention in the classroom. My Journal experience thus served to complement my traditional law school education.

    Due to the annual change of staff and editors, the philosophy and procedures of the Journal are subject to constant evaluation and reworking. The Journal's two primary objectives, however, of providing a forum for the examination of problems of law reform and of offering students the opportunity to write on current legal issues will remain unchanged. It will continue to offer clarification to legal practitioners on complex legal issues, to examine recent and significant legislation, and to make suggestions for law reform.

    The Journal should continue to note trends and point out new directions for legal reform. In addition, it should seek to expand the examination of legal changes within a broader societal context. New and complex problems require more than the traditional legal inquiry with its rehashing of cases and established legal theories. Legal problems must be viewed in a larger context, taking into account all that is being learned in the natural, physical, and social sciences, as well as the insights of the humanities. Without this perspective, it will be difficult, if not impossible, to make tenable recommendations for legal change.

    There is no question that a great need exists for law reform. The University of Michigan Journal of Law Reform is a forum in which legal change can be noted, examined, and inspired. The Journal's task of communicating ideas for law reform is a great challenge, and I wish future staff members and editors good fortune in meeting it. Those of us who have spent many hours working on the Journal and who have now entered legal practice anxiously await the results of the next decade. We look forward to growing and developing through the insights and ideas of the Journal's contributors.

 

*Law Clerk to Judge Edwin A. Robson of the United States District Court for the Northern District of Illinois. B.A., 1973, University of Michigan: J.D., 1977, University of Michigan.

 

On Coming of Age:
Twenty-Five Years of the University of Michigan Journal of Law Reform

Francis A. Allen^*

   A generation has grown to maturity since a small group of Law School faculty members, reinforced by the indispensable interest and financial support of Jason L. Honigman of the Detroit bar, founded in 1968 what has become The University of Michigan Journal of Law Reform. Asked to pronounce a decanal blessing on the new enterprise, I concluded my benediction in the first issue with typical deanly rhetoric: "It [the new journal] is a lusty infant, and the prospects of sound and healthy growth are good."¹

    Actually, the vital signs were weaker than the brave pronouncement suggests; parturition was accompanied by unusual perils. The gravest of these related to the editorial leadership of the new enterprise. The founders intended to place the Journal initially under faculty editorship. Professor Frank E. Cooper, the preeminent and much admired expert on state administrative law and procedure, agreed to take on the task. Professor Cooper's death before the first issue appeared was a sad loss to the School, and created a crisis for the student editorial board that had been appointed to assist him. The ingenuity and improvisations of the student board, led by the Managing Editor, David L. Gallies (now a prominent law teacher at the University of Hawaii), gave life to the enterprise. Editorial direction of the Journal has ever since been firmly in student hands.

    Naming the child created unexpected difficulties. The first issues bore the legend, Prospectus: A Journal of Law Reform. The title, it was thought, suggested a forward thrust especially appropriate to a periodical concerned with legal change and reform. Subtlety and nuance, however, are better eschewed when devising labels. Very soon it became clear that the title was causing misunderstanding among prospective contributors and readers, many apparently believing that the new publication was one devoted to corporate securities regulation. Accordingly, the present designation of the Journal evolved in rather short order.

    Finally, the emotional environment of the universities in 1968 might have been thought unfavorable to launching a periodical dedicated to social amelioration through reform of law and legal institutions. The first issue of the Journal appeared as campus unrest in the Vietnam era neared its crescendo. Voices (perhaps louder than their numbers warranted) denounced law as the tool of oppressors. Law reform is futile, it was said; it serves only to divert attention from the central task of overthrowing a corrupt and unjust social order. The distinguished Association of the Bar of the City of New York, alarmed, issued a volume entitled Is Law Dead?²

    Yet despite the special difficulties, as well as those associated with any new publishing venture, the Journal survived and continues to survive. Scores of Michigan law students have contributed to its life. The bound volumes have proliferated, and the volumes have become more voluminous. A substantial array of distinguished legal scholars have contributed to the Journal's pages, including (if my count is correct) some thirty members of the Michigan Law School faculty. Numbers of young law teachers from across the country appear to have launched their writing careers in the Journal. What impact has the Journal had on social amelioration through law? Is it widely read in the profession and in the law schools? These are questions I am unable to answer in any satisfactory way, but let me submit one piece of empirical evidence, In thumbing through the bound copies of the Journal on the shelves of a law library situated a thousand miles from Arm Arbor, I was struck by the frequent heavy underlinings of passages in articles and student contributions, indicating, I should think, close reading. I was therefore gratified, however much such book abuse may be deplored by law librarians,

    Procreators of both persons and periodicals are often, in the course of time, surprised and sometimes dismayed by what their offspring have become. What did those who founded the Journal in 1968 expect it to be, and how well have these purposes been realized? There is some contemporary evidence of the founders' objectives. In the introduction to the first issue, mentioned above, I find myself pointing to two goals: "to report efforts to improve the law and its administration and to stimulate thought and ... action to this end,"³ and second, "to enlarge the opportunities for law journal experience of students at the University of Michigan Law School."⁴ Ten years later, the Journal, celebrating completion of its first decade, published a statement of a former student editor. Mr. Domanskis repeated and reaffirmed the objectives as stated above, and asserted that, thus far, they had been honored in practice.⁵

    Any periodical dedicated to law reform necessarily undertakes a number of ancillary commitments. Important contributions to social policy demand more than value analysis and manipulation of concepts, important and fascinating as these pursuits undoubtedly are. Rational social policy requires knowledge of concrete social reality, entailing the sometimes burdensome commitment to fact finding. The necessity of acquiring sound empirical foundations asserts itself at every stage of legal policy making: the discovery of problems requiring attention, the devising of institutional solutions, the evaluation of the performance of measures already undertaken. This does not mean, of course, that every venture into law reform necessarily entails the elaborate apparatus of empirical research. It does mean a stronger orientation to concrete social reality than we as lawyers ordinarily bring to our thought on policy issues. The commitment to law reform also probably entails greater concentration on legislative law than is displayed in most law-review fare and correspondingly less preoccupation with the seductive pleasures of judicial, and especially constitutional, theory.

    Let us return to the earlier question: How well has the Journal during the past quarter-century realized its original purposes and expectations? There are, after all, limits to self-immolation and to the patience of readers; and so I shall not offer the meticulous analysis of twenty-four bound volumes of the Journal necessary to a fully satisfactory answer. It seems clear, however, that the second objective stated above has been achieved: Opportunities for student participation in law review activities at Michigan have been significantly enlarged. An extraordinary range of issues and topics has been uncovered and addressed by the students; and, with all due deference to the distinguished faculty contributors, much that is most interesting about the Journal has been achieved by the student writers and editors. In recent years the editorial boards have published numerous symposia on a variety of important issues with contributions from experts across the country. There is much of interest and value in this. I hope the tendency, however, will not result in significant diminution of student contributions, as it has in some other periodicals.

    Has the Journal sustained its distinctive focus on law reform and social policy and honored the ancillary commitments necessarily implied? One would not be surprised to find some slippage here, some weakening of purpose, with the passage of time. The force of convention and habit, and notions of prestige make distinctive orientations hard to maintain, and move student-edited periodicals to resemble all other student periodicals. There are issues of the Journal in past years that appear to be bending to such pressures. Contributions appear that have only tenuous relation to the Journal's declared purposes, and the apparently insatiable urge of students to write and publish Supreme Court casenotes seems on occasion to have been too powerful to resist. Yet such detour and deviation do not characterize the Journal's history as a whole; the original thrust has lost little of its force. To a surprising degree, the interests and emphases of the Journal persist.

    If, as I suggested earlier, close attention to legislative law and law-making is a prime requisite of publications focusing on law reform and social policy, the Journal in its quarter-century history has abundantly satisfied the requirement. Extensive discussions of statutory law at the national, state, and local levels are to be found in all the Journal's bound volumes. In its early years the Journal published a series of "Legislation Notes" reporting new legislation, not only in Michigan, but also throughout the country, often providing a brief history of the enactment and analysis of its provisions. The "Notes" appear to have been abandoned, a loss I regret; but in justice it must be said that the Journal in other ways has succeeded in alerting its readers to an extraordinary range of new statutory law.

    Has the Journal maintained a steady gaze on social reality, on the actual performance of social institutions? My recollections of the hopes of the Journal's founding fathers may still be of some relevance here. It was never the expectation of that hardy band that the new student publication should confine itself to empirical studies establishing the need for law reform or auditing the performance of existing arrangements. Yet I think that most felt such studies should regularly appear in the Journal's pages. It was my hope that perhaps each summer a group of student writers could be funded to carry out such inquiry and publish its results in the succeeding volume. The dream has not come to full fruition. Reasons are probably to be found both in the burdensome logistics that such frequent projects impose on the student boards and faculty advisors, and also the tyranny of the "summer clerkship" that since the Journal's founding has increasingly preempted students' time between May and August. Nevertheless, a considerable amount of such material has appeared in the Journal's pages, including some excellent work by student researchers. Like Oliver Twist I should like more.

    How does all this add up? Very creditably, I think, to the student editors and writers (who may have received a bit of help from faculty advisors). To a surprising degree (at least surprising to me), the originally perceived purposes of the Journal have been kept in view. The Journal's interests and commitments, sometimes in unexpected forms of expression, have survived and continue to animate its publication. The interests and commitments are important, and not only to the Journal's future. The assumptions on which the Journal has operated for a generation are in conflict with certain tendencies in law school research and scholarship. It is good to have publications affirming that there is a distinctive legal subject matter, that in intellectual life law schools need not conceive themselves to be merely colonial outposts of university graduate schools, that "a juster justice and a more lawful law"⁶ is a meaningful goal, and that "the relief of man's estate" (as Lord Bacon put it)⁷ is the ultimate ethical justification for the legal enterprise.

 

Notes:

* Edson R. Sunderland Professor of Law emeritus, University of Michigan.  Professor of Law, University of Florida.
1.      Francis A. Allen, A Prospectus for Reform, 1 Prospectus 1, 4 (1968).
2.      Is Law Dead? (Eugene V. Rostow ed., 1971).
3.      Allen, supra note 1, at 2.
4.     Id. at 3.
5.      Alexander R. Domanskis, The Journal: After a Decade, 11 U. Mich. J.L. Ref. 1 (1977).
6.     See Max Radin, A Juster Justice, a More Lawful Law, in Legal Essays in Tribute to Orrin Kip McMurray 537 (Max Radin & A.M. Kidd eds., 1935).
7.      Francis Bacon, The Advancement of Learning 35 (G.W. Kitchin ed., J.M. Dent & Sons Ltd. 1965) (1605).