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Defunding the New York State Law Revision Commission

July 11, 2016

By Bennett Liebman
Government Law Center

Efforts at public ethics reform in New York State often terminate with a whimper and not a bang. But at least most of the time, there are whimpers. Muttered complaints are generally voiced about the lack of reform. Yet, this year, one of the progressive reform efforts of New York State was placed out of commission in complete silence.

Defunded this year was the State’s Law Revision Commission which had operated since 1934. The Law Revision Commission was designed to serve as a non-partisan body of legal experts which would “examine the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms.” It has been considered “the oldest continuous agency in the common-law world devoted to law reform through legislation.”[1] The Law Revision Commission continues to exist in statute, but without funding, it has been rendered inoperative.

That’s not the way it is supposed to work. New York’s Law Revision Commission was one of the signature progressive reforms of the 20th century in New York. Its ancestry is impeccable. Its parentage runs through Benjamin Cardozo, Alfred Smith, Herbert Lehman and Thomas Dewey.

It was truly Benjamin Cardozo’s concept. Cardozo, while an associate judge on the New York Court of Appeals, authored a law review article suggesting the creation of a ministry of justice.[2] That ministry would be an agency that would mediate between the work of the courts and the legislature. The ministry would place the duty on a group “to watch the law in action, observe the manner of its functioning and report the changes needed when function is deranged.”[3] It should be a formal office composed of at least five members who would have a “single-hearted consecration”[4] to research and scholarship. The need for such a body was obvious to Justice Cardozo. “Men are insisting, as perhaps never before, that law shall be made true to its ideal of justice. Let us gather the driftwood, and leave the waters pure.”[5]

Cardozo’s concept of a ministry to regularly report on improving the law was soon advocated by New York State Governor Alfred E. Smith. Smith, in his State of the State message to the legislature in 1923, proposed a “commission to investigate defects in the law and its administration.”[6] Smith noted, “It is necessary that … we keep pace with our own growth and with modern conception of right and justice. The law of the State, civil and criminal, should be brought into harmony with existing social, economic and business conditions.”[7] The legislature responded by establishing a commission to investigate defects in the law.[8] That commission recommended a law revision commission,[9] and in 1925, Governor Smith again recommended the establishment of a permanent law revision commission.  Smith in his State of the State message noted that he was “thoroughly in accord with the report of the commission” and he recommended that the legislature should enact suitable legislation to create such permanent agency.”[10]

While Smith was unable to secure passage of the legal reform commission, Governor Herbert Lehman was successful. Lehman in 1934 in a special message to the legislature formally proposed a law revision commission. Such a commission would provide “a through and disinterested recommendation”[11] of State laws. “Its function will be the consideration of changes in substantive law and the recommendation of those changes yearly to the Legislature.” [12]

Lehman’s proposal was soon passed by the legislature. In signing the Law Revision Commission bill,[13] Lehman further wrote, “The creation of this permanent agency is an outstanding progressive development in the administration of justice within this State. The importance of the work of this commission cannot be exaggerated. It will be able to bring the law of this State into conformity with modern conditions and modern needs. Its recommendations will be of inestimable value to the Legislature.”[14] It was the first of its kind in the United States and[15] termed a “pioneer juristic venture.”[16]

The Albany Times Union was enthusiastic about the legislation. It wrote, “With the appointment of the Law Revision Commission … New York now becomes the first state to undertake this reform. Moreover, by making the Commission a permanent adjunct of its government, New York assures that the work of law revision will be both continuing and enduring.”[17] The Law Revision Commission was considered as bringing the “brain trust system” into American government[18] as well as the “messenger of which Judge Cardozo wrote.”[19]

In 1948, Governor Dewey and the legislature expanded the focus of the Law Revision Commission. They directed the Commission to review the overall issue of the confidentiality of news reporter sources. This was a significant departure from its prior work as the Commission had previously only reported on problems with existing laws. For the first time, the Commission worked on writing new legislation.[20]

The legislation creating the Commission has remained largely unchanged since its creation. Besides certain ex officio members of the legislature, it has always consisted of five members appointed by the governor for five-year terms. Four members of the Commission must be attorneys, and two must be members of law faculties of New York schools.[21] The duties of the Commission have remained unaltered since 1934.[22]

Similarly, the record of accomplishment of the Law Revision Commission is difficult to match. In its first two years of existence, the Commission submitted 15 proposals to the legislature, all of which were voted on.[23] By 1948, the Law Revision Commission could report that 70% of its proposals since its inception had been enacted by the legislature.[24]

It has handled and reported on hundreds of difficult issues, involving most every aspect of the public law of New York. It has issued reports on topics as diverse as mechanics liens, guardianship, commercial codes, gubernatorial succession, trusts and estates, extradition, the statute of frauds, and the rule against perpetuities. It has handled hot button issues that the elected branches wanted to farm out, such as the insanity defense, eminent domain, whistleblowing, and landlord-tenant issues. Even in recent years, with a most limited budget, the Commission has worked on reforming the alcoholic beverage control laws and the Not-for-Profit Corporation Law. In 2016, the legislature has passed bills recommended by the Commission on the limited disclosure of HIV medical information and on reforms concerning charitable corporations and trust governance.

As the Commission stated in its 50th annual report in 1985, The New York Law Revision Commission, “through its ‘recommendations’ has provided this advice during the past fifty years and, with the help of God, will continue to do so for many years to come.”[25]

One would think rationally that in 2016 the Law Revision Commission’s role would be more valuable than ever. The political parties are more divided. Politics seems more divisive than ever. The pace of technology is creating more anachronisms in the law and creating a climate for more reform. The legislative process is overwhelmed by scores of moneyed interests. The need for disinterested, dispassionate intelligent review of legislation is more needed than ever. Shouldn’t the Law Revision Commission be called upon to report on ride sharing services, vacation and room rentals, tax exemptions to support affordable housing, local government powers and cooperation, the expansion of legalized traditional gambling endeavors, and power company and transmission company regulations?

Defunding the Law Revision Commission in 2016 is at best extremely shortsighted. It has always helped to improve New York State laws and New York State government. It is a government agency that has worked, and ought to be put back to work right now.

 

[1] New York State Law Revision Commission website, https://lawrevision.state.ny.us.

[2] Benjamin Cardozo, “A Ministry of Justice,” 35 Harvard Law Review, 113 (December 1921).

[3] Id. at 114.

[4] Id. at 124.

[5] Id. at 126.

[6] Public Papers of Governor Alfred E. Smith, Annual Message to the Legislature, 63 (1923).

[7] Id. at 64.

[8] Ch. 575, L. 1923.

[9] See John Godfrey Saxe, “A Ministry of Justice or Law Revision Commission,” 3 N.Y. L. Rev. 98 (1925).

[10] See “Text of Gov. Smith’s Annual Message to Legislature,” New York Times, January 8, 1925. The New York Times suggested in an editorial that a law revision commission was “worth trying.” “Law Revision,” New York Times, January 28, 1925.

[11] Public Papers of Governor Herbert Lehman, 83 (1934).

[12] Id.

[13] Ch. 597, L. 1934.

[14] Id. at 350.

[15] John W. MacDonald, “The Bar and the Law Revision Commission,” 9 New York State Bar Association Journal, 56 (1937).

[16] Herbert Laube, “Book Review,” 20 Cornell Law Quarterly, 403 (1935). See also John W. MacDonald and Simon Rosenzweig, “The Law Revision Commission of the State of New York: Its Organization, Procedure, Program and Accomplishment,” Cornell Law Quarterly, 415 (1935).

[17] “New York Leads,” Albany Times Union, July 13, 1934.

[18] “Cardozo Brain Trust Pioneer, Says J.P. Hill,” Associated Press, Binghamton Press, November 5, 1934.

[19] MacDonald, supra note 15.

[20] Emmet N. O’Brien, “News Bill Marks Shift for State Law Board,” Albany Knickerbocker News, March 22, 1948. The referral of the issue to the Law Revision Commission also was endorsed by State Attorney General Goldstein who stated that he had “utmost faith and confidence” in the Commission’s study. John Mooney, “GOP Gives News Confidence ’49 Priority,” Saratogian, March 16, 1948.

[21] Legislative Law, Section 70. See Ch. 597, L. 1934.

[22] Legislative Law, Section 72. See Ch. 597, L. 1934.

[23] MacDonald, supra note 15 at 60.

[24] “US Information As Bad as Reds’ at Times, Editor Says,” Syracuse Post Standard, September 28, 1948.

[25] New York Law Revision Commission, Annual Report, 48 (1985).

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