Duke Law Scholarship Repository

Bradway, John S.

LEGAL AID WORK IN PENNSYLVANIA
The future development of legal aid work in Pennsyl-
vania depends in large measure upon the present status.
A brief survey of the extent of the work at present shows
us a strong foundation. The Philadelphia Legal Aid Society
was established in 1902. In 1920, it ceased to function and
its work was taken over by the Municipal Bureau of Legal
Aid, one of the bureaus of the Department of Welfare of
the City of Philadelphia. That organization now handles,
in a single year, over 14,000 cases. At the present time an
enterprise is on foot to establish legal aid service in the crim-
inal field in Philadelphia.
The Pittsburgh Legal Aid Society was established in
1908. It sprang into National prominence in 1911 by calling
the first National Convention of Legal Aid Societies. Dur-
ing the World War, its activities necessarily were curtailed,
but at the present time it is rapidly developing under the
guidance of a group of members of the Bar, and handles on
an average of over 1800 cases a year. It is supported by
the Community Chest.
In 1923, the Legal Aid Committee of the Pennsylvania
Bar Association was established, and the reports of this
Committee for the succeeding years are available in the
annual reports of the Bar Association.
In 1928 an organization was established in Reading
which handles about 100 cases a year. In 1929 an organ-
ization was established in Harrisburg, which also handles
about 100 cases a year. It is not at all unlikely that
the volume of business of these two organizations will
increase considerably as individuals in the communities
learn to know what sort of service may be secured. This is
the present extent of the work.
We come now to the extension of the service to other
parts of the state. The first question is whether such exten-
sion is necessary. The demand can hardly be estimated by
observing the extent of the demand in a single law office.
District attorneys, probation officers, court clerks, and other
public officials generally, indicate that many poor people
apply to them for legal aid. Social service agencies report
that even in rural communities there is great need for ade-
quate legal advice from some person who can afford to
engage counsel to conduct the particular case. Many social
agencies hesitate to bring their legal problems to busy law-
yers. This indicates the need for a legal aid lawyer who
can spare the time for financially unproductive work. It is
fair to assume that Pennsylvania, in this respect, is like other
industrialized states.
The applications for aid in the less thickly settled
communities present problems similar to those in large cities.
Fifty per cent. of the applicants desire advice as to the law
and nothing more. They want to know their rights. Their
inquiries range over the whole field of law. Another
25 per cent. want claims adjusted. As an example, five-
dollar wage claims and small loans are to be collected where
a letter to the opposite party produces the result. In another
20 per cent., the applicant and the opposing party must be
brought together to produce a settlement. Domestic diffi-
culties and cases where the applicant is defendant and desires
to reach an adjustment out of court are examples. Finally
about 5 per cent. of all the applications are litigated matters.
Of them, many are ex parte such as the appointment of
guardians for the persons of minors.
In Illinois, Massachusetts and Michigan, the State Bar
Association has faced the problem of a state-wide legal aid
service, and has found need for it.
In 1923, Dean Wigmore of the Northwestern Uni-
versity Law School, the Secretary of the Illinois State Bar
Association, and a group of social workers representing the
Family Welfare Societies of the State, drafted an agree-
ment for a co-operative approach in handling cases that
arose throughout Illinois. The plan has been quite success-
ful. Most important for our purposes is that its operation
has disclosed the existence of a considerable volume of legal
aid business in the less thickly settled communities.
In Massachusetts, the State Bar Association in conjunc-
tion with the Boston Legal Aid Society has selected indi-
vidual members of the legal profession in various parts of
the eastern section of Massachusetts who have agreed that
they will handle legal aid problems upon request. This plan
also seems to be working satisfactorily.
In Michigan the Legal Aid Committee of the State Bar
Association divided the State into districts and secured one
or more lawyers in each district who agreed to accept charity
cases without charging a fee whenever they are assigned.
Of these three plans, the Illinois plan is the most detailed.
It contemplates an investigation by the Family Welfare
Society of applicants for aid, a reference to some member
of a local Bar Association committee who will handle the
case, and a report back to the Family Welfare Society
as to the work done.
All three plans are based on voluntary service by mem-
bers of the Bar. Therefore, they are subject to all the
advantages and all the disadvantages of volunteer service.
We cannot expect an unlimited amount of free aid from any
lawyer.
There are several communities in Pennsylvania that,
judging from the comparative figures elsewhere, are large
enough and sufficiently industrialized to require definite legal
aid organizations: Scranton, Wilkes-Barre, Allentown, Beth-
lehem, Erie, and possibly Newcastle. A simple and inex-
pensive form of legal aid organization with a paid secretary
and a young lawyer who gives part of his time to the work
and receives a moderate compensation would suffice. This
is the plan that has been developed in Reading and Harris-
burg.
There are other counties such as Delaware and Schuyl-
kill, where a county-wide service would be of value. Here
again it might be possible to arrange for an office with a
part-time secretary to keep the routine work moving and for
a part-time young lawyer to keep certain office hours.
The important matter in connection with legal aid
service is that there should be a definite place where the serv-
ice is given, a definite time when applicants may come, an
attorney waiting to talk to them-a definite individual who
is charged with the responsibility and who is compensated
so that he may devote his time to this service without feeling
that he is neglecting other work of a more profitable nature.
Finally, it is desirable from several viewpoints that there
should be a supervisory committee of the local Bar Asso-
ciation.
Finally, we come to the question of where the financial
support of this work is to be secured.
Throughout the country the figures indicate that it
costs each year approximately $450,000 to handle 175,000
cases, or about $3.00 a case. Of course, in an office where
only a small volume of business came in, there would be a
larger cost per case but not very much larger. The difficulty
lies in estimating in advance the volume. It is quite
possible to start the work for a year on an initial expendi-
ture of $1,000 and then observe. The New York Legal Aid
Society spent $1,060 in its first year (1876).
In Philadelphia, the city pays for the legal aid bureau
out of its own treasury. In Pittsburgh the community chest
supports the work. The same is true in Reading and Harris-
burg. Elsewhere throughout the United States, the practice
has been that the Bar starts the work going by contributing
enough to cover the operation expenses for the first year or
two. Thereafter, the enterprise is financed often by the
Community Chest or by some other special system of
money-raising. Thus after a time, the enterprise is placed
on a firm foundation, and while the members of the Bar
continue their contributions, they do not pay all. In New
York, Chicago and Boston the relationship of the contribu-
tions of the Bar to the total budget of the legal aid society
is indicated by the following figures:
Approximate Proportion
Volume of Contributed by
Business Total Members of
Per Year Budget the Bar
New York ... 35,000 Cases $125,000 $48,760
Chicago ..... 20,000 Cases 40,000 14,500
Boston ...... 8,000 Cases 42,000 9,075
There is need for organized legal aid work in Penn-
sylvania, beyond the present system. Other states are already
forging ahead. There is every reason that the organized
Bar should carry on its responsibility to improve the admin-
istration of justice in Pennsylvania. Legal aid work is one
step forward in this progress. It has become a definite
responsibility and at the same time a definite professional
privilege.
JOHN S. BRADWAY,
Philadelphia.
LEGISLATION OF 1931
The legislation enacted at the Session of 1931 com-
pares favorably, both in quantity and quality, with that pro-
duced by Legislatures during the last twenty-five years.
While the total number of general laws, 361, is 40 per cent.
less than the number enacted in 1929, there is no decrease
in bulk. In fact, if the 20,000 mile State highway law
were to be printed in the Pamphlet Laws, the volume would
probably exceed in size the 1974 pages found in the 1929
volume. This law includes descriptions of 4763 new State


English

Legal Aid Work in Pennsylvania

The Legal Aid Clinic: A Means of Building Tough Mental Fiber

Dean, Gordon E.

The American Law School Review
Bar Associations and the Law School
Student Body
By GORDON E. DEAN
Assistant to the Dean of the Law School, Duke University, Durham, N. 0.
O NE of the most interesting featuresin the history of the legal profession
is the heightening group consciousness
which is developing in the American law-.
yer. In the past his relationship, at least
to his fellow members of the bar, has made
him a symbol of individualism. Perhaps
the nature of his calling was largely re-
sponsible. A lawyer's advocacy, for in-
stance, is always met with the rebuttal of
an antagonist. His life is a series of en-
counters, of quick decisions, of rapidly
planned campaigns. He holds, locked
within his mind, the secrets of a most in-
timate clientele. Like most military lead-
ers he plays a lone hand. Of necessity,
then, he remains, even today, an individu-
alist, but to a much lesser extent; for the
last thirty years have witnessed a gradual
process which might be termed the sociali-
zation of lawyers. The lawyer has, with
his brothers of the profession, created bar
associations, which organizations have in-
creased more rapidly in proportion than
has the profession or the population.
Many circumstances have caused this
growth from individualism to socializa-
tion, from non-organization to the com-
plicated machinery of the incorporated
bar. The challenge flung by the public to
the bar to overhaul the judicial mechanism
and to replace its outworn parts with
modern instruments has unquestionably
been a spur to organized activity. The
encroachment by lay and corporate bodies
in the fields so long reserved to the lawyer
has caused the bar to assert the preroga-
tives that rightfully belong to it and to
fight for a retention of those duties which
it feels it alone is qualified to perform.
Numerous instances might be cited where
lawyers' clubs, and local and state bar as-
sociations have organized with this grow-
ing problem as the primary stimulus. The
eradication of those within the ranks, such
as the shyster, the ambulance chaser, and
the attorney who regards the law not as a
profession, but rather as a highly compet-
itive business, has also been a powerful
spur to the bar to present an organized,
if not a unified, front. A realization that
the time was ripe to cull out and prevent
the admission to the profession of the
poorly trained and unequipped has been
still another spur, one which has caused
the bar to regard with more than remote
curiosity.the real problems of legal edu-
cation and admission to the practice.
As the number of bar associations has
increased, so has the strength and efficien-
cy of the organizational structure of each
association. The creation of many of
the old voluntary associations evidenced
nothing more than, as one writer says,
"An increased appetite for good fellow-
ship and post-prandial felicity." The
modern association, on the other hand,
with its numerous sections on every con-
ceivable phase of legal and professional
activity, is organized for serious business.
Although we have nothing in this country
comparable to the inns of court in Eng-
land, which originated essentially as quasi-
corporations of lawyers, at least, the lead-
ers of the bar in this country are now
thinking and talking in terms of federated
bars, self-governing bars, and incorpo-
rated bars. The concept of the bar as a
unit or a group of units arrayed in the
fight for a better administration of jus-
tice is becoming less a dream and more a
reality.
The more scientific and useful the
structure of the bar and the more unified
its activities, the more 'powerful it be-
comes,-the greater its influence. Not
Bar Associations and the Law School Student Body
many years ago it was generally accepted
that the best way to kill a pending legis-
lative measure was to bring to the atten-
tion of the legislature the fact that the
measure was initiated by, or had the ap-
proval of, the bar. Today the situation
has changed considerably. Recommenda-
tions of bar associations are being enact-
ed into law.' Other indications of the
increasing influence of the bar may be
found in the success with which it is com-
bating the unlawful practice of the law,
and in the fact that candidates for the
bench, receiving the endorsement of the
bar, have generally been successful. The
contributions of the organized bar to the
work of the American Law Institute, to
the cause of uniform legislation, and to the
success of the Judicial Council Movement
have been acclaimed by those of the laity
who are informed.
In spite of all the bubbling efferves-
cence which has characterized the mem-
bers of the bar during the last few years
as they have banded together demanding
professional autonomy, some have sud-
denly realized that the young blood in the
army of the association is conspicuous by
its absence, that many law graduates of
today hav'e no conception of what a bar as-
sociation is or does, and that in the not too
distant future re-enforcements will be
needed and found lacking. I submit that
the fear is somewhat justified. If some
of the die-hards of the "good fellowship"
type of bar associations were reluctant
converts to the movement to unify and
strengthen association work in a program
of service, the young man or woman who
has just successfully navigated the chan-
nels of the bar examination is an even
poorer recruit.
One advantage of the fast-fading law
office education was the opportunity for
contact with the members of the bar
which it afforded to the prospective practi-
tioner. Today the average student has no
such contact. The bar associations have
no place in the already over-crowded cur-
riculum and the administration of justice
is a pretty vague sort of conception to the
average student. Furthermore, the finan-
cial drought which beginners in the prac-
tice must suffer, a natural timidity in
thrusting oneself into the inner circle of
association activity, together with a com-
plete ignorance as to bar association work,
purposes, and ideals, often results in an es-
trangement between the older members
of the bar and those who should supply its
new blood.
The theory that a man must prove him-
self at the bar, in some states for a definite
period of years, before admission to the
association, kept out many whose enthusi-
asm might have prevented stagnation.
Such a system overlooked the possibilities
for influence and inspiration which an as-
sociation of mature men might exert on
the newly initiated. In recent years bar
association activities have become less
fraternal, more business like, less frivo-
lous, more sincere, less cliquish, more
representative and democratic. Today
the average bar association has work to do
and it extends open arms to the younger
men of ambition. And yet, queer as it
may seem, there is still the same estrange-
ment, the same breach between law school
interests and the interests of the practi-
tioner. Of course, great efforts have
been made to narrow the breach. This
started years ago with the inauguration in
the law schools of procedural subjects,
moot courts, and law reviews, and is being
carried on with such organizations as legal
aid clinics, and schemes for legal interne-
ship such as those recently inaugurated at
Western Raserve University Law School.
The breach between the law school and
the practical prdblems involved in the
administration of justice has also been
narrowed by a constant broadening of
law school activities. A list of these
should include: the American Institute
of Criminal Law and Criminology, the
American Judicature Society, the Crime
Surveys of Harvard Law School, the
Statistical Studies at Yale, the American
Law Institute, the Johns Hopkins Insti-
tute, the Recent Crime Detection Labora-
tory and Air Law Institute at Northwest-
ern, the participation by Yale and Har-
vard in the Hoover Law Enforcement
Survey, the joint research projects be-
tween the West Virginia Law School and
The American Law School Review
the West Virginia Bar Association, and
the Legal Research Institute at the Mich-
igan Law School. Space does not permit
the enumeration of all such activities.
The schemes which relate the law stu-
dent even more closely to the bar asso-
ciation, and to its problems are found
in such efforts as those of Dean William
Green Hale who at the Oregon Law
School and later at Washington Univer-
sity Law School in St. Louis established
a course designed to acquaint students
with the problems involved in the admin-
istration of justice. A similar project has
been carried on at the University of North
Carolina under Dean Charles T. McCor-
mick, in which the entire faculty has co-
operated with the students in producing
reports on the history and achievements
of the American Bar Association, the
growth of the self-governing bar, and
related subjects. A course in the Profes-
sion of the Bar has been developed at
Northwestern Law School which will
cover, among other things, bar associa-
tions, admissions to the bar, and matters
of discipline.
In some cities, notably Los Angeles, the
Junior Bar movement has taken hold.
Such organization of the younger mem-
bers of the bar is proving successful. The
Los Angeles organization is alive. It is
a fine type of training ground for bar as-
sociation participation-a sort of reserve
officers' training corps for the regular
army.
But the most fertile field for recruits
for bar association work has been, until
just recently, entirely overlooked. I re-
fer to the association generally known a.s
the law school student body. In struc-
ture and purpose it is usually nothing
more than a hang-over from the academic
school, where political prominence was
too often associated with good looks and
athletic superiority. *In spite of the fact
that law students soon lose the liberal arts
complex, treble their hours of study,
gradually break away from the extra-cur-
ricular distractions of academic school,
and become serious of purpose, the hang-
over of the student body organization with
its petty politics, social calendar, and pur-
poseless program seems to persist.
Three years ago at the University of
Southern California, and six months ago
at the Law School of Duke University,
the student body governments were com-
pletely scrapped and in their stead were
created, at the suggestion of Dean Justin
Miller, student bar associations, patterned
after local and state bar associations. The
step, of course, was 'part of an inevitable
and logical development. It is surprising
that more law schools have not substitut-
ed this active type of professional organi-
zation for the ancient hang-over of the
liberal arts school and thus in effect made
the law school student body an important
unit of the profession.
The decided advantage which the bar
association form of student government
has over a course in the Administration
of Justice or the Profession of the Bar
lies in the fact that under the associa-
tion constitutions of the two schools pre-
viously mentioned it is provided that
every registered student be a member of
the Association. The advantages derived
from participation in such work are
shared by all and not merely the few who
choose to elect such training. The mem-
bers of the faculty are honorary members.
In both schools the association collects
an annual fee, in one this includes a sub-
scription to the Law Review of the insti-
tution, and in this school provision has
been made whereby the fee is collected by
the treasurer's office at the time of regis-
tration.
The constitution of the Southern Cali-
fornia Bar Association rovides for the
following officers: the president and sen-
ior vice-president (who must be members
of the senior class), the junior vice-pres-
ident and secretary (who may be chosen
from either the first or second year class),
and two representatives (one the class
president) from each class, who with the
first four officers compose the board of
governors.
Provision is made for semi-annual
meetings, called meetings being held on an
average of once each month, at which the
Bar Associations and the Law School S~udent Body
reports of the various sections are re-
ceived.
Sections similar to those of the city,
county, state, or national association are
provided for, such as those on Conduct,
Admissions to the Bar, Civil Procedure,
Criminal Law and Procedure, Courts and
Judicial Officers, Regulatory Commis-
sions, Publicity, and Association Meet-
ings,
The following sections have proven to
be a great help in a law school associa-
tion: a Section on Law Review, which
in co-operation with the editorial board of
the publication, smooths out various ad-
ministrative problems connected with the
publication of a legal periodical, the Sec-
tion on the Library, and the Section on
Buildings and Grounds. Their names
suggest the spheres of their activity. Sal-
utary provisions have been enacted to
handle the problems of honor and disci-
pline, the board of governors being the
final board of review with power to expel
from the association, and transmit recom-
mendations to the dean.
In one school arrangements have been
made whereby the sections of the Law
School Association may attend the sec-
tion meetings of the local, city, and coun-
ty bar associations, and participate in their
discussions.
The student association through its ap-
propriate sections is enabled to keep up
with legislative changes and judicial re-
forms. Research projects are conducted
by the sections on such subjects as Legal
Aid Clinics, Uniform Legislation, Bar
Association Organization and Growth,
and so forth, and reported on to the en-
tire association.
The sections on Legal Education and
Admissions to the Bar in their explora-
tions in the field have given to the associa-
tion members some insight into the prob-
lems involved in raising and keeping
raised stdndards of education, attainment,
and character. Heretofore, the average
law student had no appreciation of such
work. The bar association form of law
student organization presents unlimited
possibilities. Whatever the most skep-
tical may predict, it is a certainty that
such associations will train their mem-
bers in the technique, structure, and pro-
cedure of bar association activity. This
alone justifies the student association, es-
pecially in view of the increasing power
and possibilities of the organized bar.
Note the language of the recent report of
the Committee on Bar Reorganization of
the American Bar Association, addressed
to the Conference of Bar Association Del-
egates: "In the past two decades more
than six hundred new bar associations
have come into existence, reaching a pres-
ent total of 1,216. During the same time
the American Bar Association has in-
creased its membership six-fold, and the
membership of most state associations
has doubled. Bar associations have pro-
gressed from organizations pre-occupied
with annual dinners and funeral gather-
ings to organizations that are shaping leg-
islation, purging their own ranks, pre-
scribing rules of practice, publishing their
own journals, and performing many other
services for the profession and commu-
nity."
The law student of today should in ten
or twenty years be the leader of this pro-
gressive movement. The law school bar
association can do much to train him for
such leadership.


Bar Associations and the Law School Student Body

Miller, Justin

Dean, Gordon

20 THE MEDICO-LEGAL JOURNAL
CIVIL AND CRIMINAL LIABILITY OF PHYSICIANS FOR
STERILIZATION OPERATIONS
By JUSTIN MILLER and GORDON DEAN
(From the March issue of the American Bar Association Journal).
In California, between 1910 and
1929, six thousand and fifty-five ster-
ilization operations have been per-
formed in public institutions.
About three thousand such opera-
tions have been performed in other
States during the same period.
How many operations have been
privately performed, it is impossible
to state.
"The operations most frequently
used for this purpose are that of
vasectomy as applied to males and
salpingectomy as applied to females.
We are assured by members of the
medical profession who have develop-
ed these techniques that, unlike cas-
tration and spaying, vasectomy and
salpingectomy do not desexualize the
individual or produce other physical
or mental changes except such as
may grow out of a realization that
the child-producing function had
been destroyed. The constitutional-
ity of statutes providing for the
sterilization of the unfit has been
established in a number of states and
by the Supreme Court of the United
States. The courts have been more
reluctant about conceding the con-
stitutionality of statutes providing
for the sterilization of criminals."
(For a full discussion of the law in-
volved in the preceding introductory
paragraphs see, "The Law and
Human Sterilization" by Otis H.
Castle, 53 Reports of Am. Bar. Assn.
556).
"In most of the statutes which
provide for the sterilization of the
unfit in state institutions, there have
been incorporated provisions, absolv-
ing from civil and criminal liability,
those who perform such operations.
As yet, none of these provisions have
been passed upon by courts of re-
view. Presumably, in order to avoid
liability, the provisions of the stat-
utes must be strictly complied with."
"Ordinarily the purpose is therap-
eutic (A distinction between eugeni-
cal and therapeutic purposes is im-
portant under some of the steriliza-
tion statutes; Indiana Stats. 1927,
Ch. 241, Sec. 6; Utah Stats. 1925,
Ch. 82, Sec. 6; Mississippi Stats.
1928, Ch. 294, Sec. 6; Virginia Ann.
Code 1924, Ch. 46b, Sec. 1095m, (P.
569). 'Medical' and 'therapeutic' are
probably synonymous. See Williams
v. Scudder, 102 Ohio State 305, 131
N. E. 481, 483; Gould Med. Dict. (2d
ed) p. 1380.), rather then eugenic,
nevertheless there are cases of vol-
untary private sterilizations where
the purpose is to cut off a strain of
defective germ-plasm, as in the case
of a diagnosis of hereditary insanity
or in case of the marriage of two
persons each with a pronounced fam-
ily history of cancer. We may safe-
ly assume, no doubt, that in some
cases the purpose of the operation
is merely to remove danger of preg-
nancy."
"An operation for sterilization
would clearly result in criminal lia-
bility in many cases. Death result-
ing from such a cause, if no justifi-
cation or excuse were present, would
make the perpetrator guilty of a
homicide, varying in degree accord-
ing to the malice and intent in his
mind at the time of the act."
"The usual considerations in de-
termining liability for homicide
would be pertinent here. Gross negli-
gence, general criminal intent, the
SELECTIONS
fact of being engaged in the corn-
mission of another felony, might
each be sufficient to supply the ele-
ment of intent. (Gross Negligence.
See note 61 L.R.A. 287, 289. See
also State v. Reynolds, 42 Kan. 320,
22 Pac. 410, 16 Am. St. Rep. 483
(1889) and note; State v. Hardister,
38 Ark. 605, 42 Am. Rep. 5 (1882).
General Criminal Intent. Clark and
Marshall Crimes (3d ed) Sec. 243;
State v. Moore, 25 Iowa 128, 95 Am.
Dec. 776 (1868); State v. Lodge, 9
Houst (Del) 542, 33 Atl. 312 (1892).
Homicide in Commission of Felony.
I Hale P. C. 473; 21 Mich. L. Rev.
95. See Clark and Marshall Crimes
(3d ed) 195, and cases collected in
63 L. R. A. 353. At present, Utah is
the only state which makes an un-
lawful sterilization operation a fel-
ony; Utah Laws of 1925, Chap. 82,
Sec. 7. In two states unlawful steril-
ization operations are misdemean-
ors; Iowa Stats. 1924. Code of Iowa
1927, Ch. 168 Sec. 3364. When origi-
nally passed in 1915 the section was
2600s (5). Kansas Stats. 1917, Chap.
299, Sec. 7. Revised Stats. 1923, Chap.
76, Sec. 177.) The main considera-
tion would be that of causation, and
death resulting.
"In similar manner such an oper-
ation might result in liability for
mayhem or maiming. This would be
clearly true in case of castration be-
cause the effect of the operation is to
change the entire physical character
of the individual. (Castration: Bou-
vier Law Dict. 1 Hawk P. C. 107;
Bishop Crim. Law. (9th ed.) Sec.
1001.)"
"In cases both of homicide and
mayhem, even the consent of the
person castrated would not 'serve to
excuse the physician, for it is clear-
ly established that consent of the in-
jured person in this type of case does
not operate to prevent criminal lia-
bility. (See People v. Clough, 17
Wendell 351, 31 Am. Dec. 303 (1837)
for a full discussion, and Rex. v.
Wright, 1 East P. C. 396, Co. Lltt.
127a. In abortion cases where death
results, the homicide is not justifi-
able. State v. Magnell, 3 Penn.
(Del) 307, 51 Al. 606 (1901); State
v. Moore, 25 Iowa 128, 95 Am. Dec.
776 (1868). The same is true where
death is the result of a duel. Re-
gina v. Barronet, Dears C. C. 51.)"
"An interesting subject of inquiry
is opened up when we attempt to
apply these principles of law to the
modern sterilization operations of
vasectomy and salpingectomy. As
has been pointed out already they
are entirely different from the cruel
and despoiling operations known to
the common law. It is true that in
at least one recent case the use of
the modern operations was condemn-
ed as constituting cruel and unusual
punishment. (Hendricks v. Mickle,
262 Fed. 677, D. C. D. Nev. 1918;
Davis v. Berry, 216 Fed. 413, D. C. S.
D. Iowa 1914. See also dissenting
opinion in Smith v. Command 231
Mich. 409, 204 N. W. 140, 142
(1925).)"
"In recent years a few of the states
which have adopted sterilization
statutes have incorporated therein
two types of prohibitory provisions
with regard to the performance ol
non-therapeutic private operations
of sterilization.
"First, the statutes of Indiana,
(Indiana Stats. 1927, Ch. 241, Sec.
6), Utah (Utah Stats. 1925, Ch. 82,
Sec. 6) Mississippi (Mississippi
Stats. 1928, Ch. 294, Sec. 6) and Vir-
ginia (Virginia Ann. Code 1924, Ch.
46b, Sec. 1095m, (p. 569.), make the
following provision for therapeutt
operations of sterilization:
'Nothing in this act shall be con-
strued so as to prevent the medical
or surgical treatment for sound the-
rapeutic reasons of any person in
this state, by a physician or surgeon
licensed in this state which treat-
THE MEDICO-LEGAL JOURNAL
ment may incidentally involve the
nullification or destruction of the re-
productive functions.'
"The Indiana statute makes a fur-
ther qualification, 'provided that
such treatment shall be that which
is recognized as legal and approved
after due process of law.'
"It will be noted that this type of
provision does not make such oper-
ation a criminal offense, and no pun-
ishment is provided. It is probably
at most a provision designed to
avoid civil liability except where the
operation is non-therapeutic, or pos-
sibly even where the physician is un-
licensed, or the operation 'primarily'
(as distinguished from 'incidentally')
involves the nullification or destruc-
tion of the reproductive functions.
If the operation did contain any of
the above impliedly prohibited cir-
cumstances, an attorney might well
hesitate to advise a physician that
he might safely perform the opera-
tion in a state which had such a
statute. Especially would this be
true in Indiana. (Indiana is one of
the states in which consent to an ab-
ortion is not a bar to civil recovery
against the physician by the patient.
Martin v. Hardesty, 163 N. W. 610,
(Ind. 1928), but see Courtney v.
Clinton 18 Ind. App. 620, 48 N. E.
799 (1897).
"Second, in three states, Iowa
(Iowa Stats. 1924. Code of Iowa
1927. Ch. 168. Sec. 3364. When or-
iginally passed in 1915 the section
was 2600s (5), Kansas, (Kansas
Stats. 1917, Chap. 299, Sec. 7. Re-
vised Stats. 1923, Chap. 76, Sec. 177),
and Utah, (Utah Laws of 1925,
Chap. 82, Sec. 7.) a direct penal pro-
vision is found:
'Except as authorized by this act'
(the act refers to the sterilization of
the unfit in state institutions,)
'every person who shall perform, en-
courage, assist in, or otherwise pro-
mote the performance of either of
the operations' (vasectomy a n d
salpingectomy) 'for the purpose of
destroying the powers of procrea-
tion, unless performance of such
operation is a medical necessity,
shall be guilty of a misdemeanor.'
"Utah is the only state which in-
corporates in its acts both of the
above provisions."
"In those states which have penal
provisions regulating liability for
performance of s u c h operations
without therapeutic or medical justi-
fication, liability is determined
thereby. Where the state has noth-
ing but a mayhem statute which fol-
lows the common law concept, it is
very doubtful if the modern opera-
tions for sterilization could be
classed as criminal. Where the
statute speaks in terms of 'rendering
useless' a member or organ of a
human being, there is possibility of a
decision either denying or establish-
ing liability. In any event malice
seems to be an element essential to
criminal liability in such a case."
As to civil liability the authors dif-
ferentiate between cases where the
plaintiff has consented to the opera-
tion and those where the operation
has been performed without or
against the plaintiff's consent.
They state that although some
cases are on record involving oper-
ations which incidentally resulted in
sterility, no case has been found in
which a person who has consented to
a sterilization operation has brought
suit against a physician.
The authors draw an analogy be-
tween illegal sterilization operations
and illegal abortions.
"Appellate courts of this country
have considered nine cases of abor-
tions where suit was brought by or
for one who had consented to the
operation. In four of the jurisdic-
tions, Federal, (Hunter v. Wheate,
289 Fed. 604 (C. A. D. C. 1923),
Kentucky, (Goldnamer v. O'Brien 98
SELECTIONS
Ky. 569, 36 L. R. A. 715, 33 S. W.
831, 56 Am. St. Rep. 378 (1896). This
case is approved in Bigelow on
Torts, p. 41), Massachusetts, (Wa-
claw Scadificz v. Cantor, 154 N. E.
251 (Mass. 1926), and New York.
(Larocque v. Conheim, 42 Misc. 613,
87 N. Y. S. 625 (1904), no recovery
was allowed, on the principle that an
illegal transaction cannot be made
the basis of an action by one who is
a party thereto. In five of the juris-
dictions, Alabama, (Hancock v. Hul-
lett, 203 Ala. 272, 82 So. 552 (1919),
Indiana, (Martin v. Hardesty, 163 N.
W. 610, (Ind. 1928), but see Court-
ney v. Clinton 18 Ind. App. 620, 48
N. E. 799 (1897), Maine, (Lembo v.
Donnell, 116 Me. 505, 101 Atl. 469
(1917), Ohio, (Milliken v. Hedde-
sheimer, 144 N. E. 264. (Ohio, 1926).
and Wisconsin, (Miller v. Bayer, 94
Wis. 123, 68 N. W. 869 (1896) recov-
ery was allowed on the theory that
'because of the state's interest,
neither party has a right to make
any agreement to sacrifice his life
or suffer injury to his person, and
any such agreement is void.'
"In those states in which there is
no penal provision prohibiting a
sterilization operation by the mod-
ern methods, the general rule of tort
law would seem to apply and the
consent of the party to submit to the
operation should be a complete
shield against civil liability on the
part of the operating physician, pro-
vided the operation was performed
without negligence."
If a physician performs an oper-
ation different from the one con-
sented to, plaintiff can recover
(Cuthriel v. Protestant Hospital, an
unreported Ohio case, cited in the
notes to Kinkaid on Torts, Sec. 375).
Where an operation is performed
upon a person without the patient's
consent, express or implied, it is un-
lawful (Mohr v. Williams, 95 Minn.
261, 104. N. W. 12, 111 Am. St. Rep.
462, 1 L. R. A. (NS) 439 (1905) and
note. See also note 26 A. L. R. 1036;
2 Cal. L. Rev. 312; and Rolater v.
Strain, 39 Okla. 572, 137 Pac. 196,
(1914).
If the person operated upon is in-
capable of giving legal consent, the
physician is of course liable.
It has been held that if the wife
gives consent, the husband's con-
sent is either not necessary or is im-
plied.
Where a sterilization operation is
performed on a minor without the
consent of the parent, except the
factual situation presents a clear
case of emergency (Moss v. Rish-
worth 191 S. W. 843 (Tex. 1917), af-
firmed 222 S. W. 225 (1920). See
Browning v. Hoffman, 90 W. Va. 568,
111 S. E. 492 (1922) Luka v. Lowrie,
170 Mich. 122, 136 N. W. 1106, 41
L. R. A. (NS) 290 (1912) at 135),
the physician is liable.
Where before marriage, a wife is
sterilized by a private operation and
does not disclose the fact to her
husband before marriage, annulment
should be granted on the ground of
fraud, (Turner v. Avery, 92 N. J. Eq.
473, 113 Atl. 710 (1921).
The article contains quite a num-
ber of case references not mention-
ed in this excerpt and the reader is
referred to the original article for
further material on the question.


Civil and Criminal Liability of Physicians for Sterilization Operations

Horack, H. C.

Law Schools Today and Tomorrow

Liability of Physicians for Sterilization Operations

DEAN RICHARDS AND THE ASSOCIATION OF
AMERICAN LAW SCHOOLS
Dean Richards began his law teaching at the University of
Iowa in the fall of 1898. Two years later the Association of
American Law Schools was organized and in 1901 the first
annual meeting of this Association was held. This first meet-
ing Dean Richards attended and from that time until his death
no one has had a more active part in the growth and develop-
ment of this Association and the accomplishment of its one
object, "The improvement of legal education in America, es-
pecially in the law schools." It is fitting, therefore, that some
statement should be made with reference to Dean Richards'
activities in connection with this organization.
In the early years of the Association, Dean Richards was a
member of its Executive Committee and later its President,
and again on the Executive Committee. It would require a de-
tailing of the entire history of this Association year by year if
Dean Richards' influence were to be properly presented, for
there was hardly a meeting but that he was called upon for
some service in the constructive work of the organization,
either in planning or outlining the work of law schools through
committee study and recommendation, or in participation in
the development of the law in various Round Table Confer-
ences, or in the presentation of papers or addresses. Dean
Richards' attitude, and the basis of his influence in the devel-
opment of legal education through the Association of American
Law Schools can best be shown by quoting from his address as
President and his discussion of papers at recent meetings.
In setting forth his ideas he used a directness of approach
with an unstudied cleverness of expression that carried con-
viction. He had a way of turning an article upside down to
note its price mark and the place of its manufacture. He was
an expert at scraping off the gilding to determine the honesty
of the sustaining metal. He could detect pretense or self-de-
ception with unerring accuracy, and he had a remarkable abil-
ity to discover the inner workings of men's minds. These
qualities made his statements in debate or in presentation of
273
WISCONSIN LAW REVIEW
his own views most effective. A sharpness of wit and a use of
homely illustration made the expression of his opinion a de-
light to those who heard him, particularly to those who did not
disagree with him.
In his address as President of the Association of American
Law Schools he made a comparison of the progress made in
medical and in legal education, and showed the manner in
which the medical profession had cleaned out the schools op-
erated for pecuniary profit. Through their experience he
pointed the way which the bar should follow. Nothing tells
more clearly the accuracy of his aim than the fact that com-
mercialized law schools have, ever since his address, felt im-
pelled to combat his arguments and to recount the terrible in-
juries which they allege have resulted from cleaning up, what
were in reality, the quack hatcheries of the medical profession.
We are today striving hard to make the public and the pro-
fession realize what he then pointed out, that the certain re-
sult of preparation for the bar in schools of low standards is
"a host of shrewd young men, imperfectly educated,
crammed so they can pass the bar examinations, all
deeply impressed with the philosophy of getting on,
but viewing the Code of Ethics with uncomprehend-
ing eyes."
Dean Richards' peculiar ability to bring to earth for ex-
amination any new plan of approach to the study of law some-
times brought upon him the charge of being a conservative,
particularly by those who were seeking to pilot the new planes.
But his conservatism was most constructive and was only that
of one who insists that a cross country flight should not be at-
tempted until the plane has been thoroughly tried out on the
home proving grounds.
Three years ago at the meeting of the Association of Amer-
ican Law Schools Dean Richards discussed the emphasis being
placed on legal philosophy in law teaching:
"The law professor has become a philosopher. We
hear a great deal about philosophy nowadays in the
law schools. We hear about 'sociological jurisprud-
ence' and 'analytical jurisprudence' and the 'factual
274
DEAN RICHARDS AND THE LAW SCHOOL ASS'N.
approach' and the 'functional approach' and several
other approaches I can't think of just now. Now,
this epidemic is spreading all over the country, and
the peculiar thing about it is that the symptoms are
not the same in any two institutions. There seems
to be a common tendency to spread, but pathological
conditions are different. If one school breaks out
with 'functional approach,' no other school ever has
it. It may break out with something else, but never
with the 'functional approach.' That is sacred to the
school that first had it.
"One of the first symptoms that seems to be
common to all outbreaks of this disease is a sort of
glossarial rash that precedes the philosophical out-
break.
"The disquieting thing about it is that it seems to
be catching. Time was when if a man philosophized
about law, or anything else, we could tiptoe out of the
room when we got tired of it, but now it is thrust
upon us."
These statements are typically Richardsesque:
"When you look through the catalogs, you don't
find much said about practice any more, but a great
deal about legal philosophy. Even in the pictorial
section the picture of 'Our Courtroom' is no longer
featured in the center of the group. There has been
a very great change. We have become philosophers,
or are on the way to becoming philosophers, and we
ought to have in the process of time at least sixty-
four different schools of philosophy in the Law School
Association." (Sixty-four being the number of law
schools belonging to the Association at that time.)
He was a master of the use of clever irony. Note his
suggestion as to the manner in which the law professor may
impress the practitioner:
"The only way to get along with the bar is the way
we are getting along with them. Don't meet them on
their ground, but make them meet us on our ground,
275
WISCONSIN LAW REVIEW
and when you get them in a philosophical atmosphere
they are lost. To hold that advantage we must con-
tinue to philosophise, and never say anything more
about the practice courses."
Dean Richards' courage and directness in expressing his
views was well illustrated in the same address in his sharp
criticism of the attitude of the bar of that time with reference
to higher standards:
"The bar is always talking about the law being a
learned profession. I am tired of that phrase 'learned
profession.' The bar as a whole does little or nothing
to make it real. If there is any attempt to make the
bar learned or near-learned, there is always opposi-
tion from them. Who make up the faculties of all the
poor law schools we have in the United States? Mem-
bers of the bar, and of the courts. They will denounce
chicanery and the low tone of the bar, and then run
and deliver their lecture in some school that is induc-
ing young men with insufficient preparation and im-
proper training to aspire to a career at the bar."
At the meeting of the Association of American Law
Schools last December a symposium was held under the title
"Modern Movements in Legal Education," in which papers
were read by representatives from several leading law schools
describing or proposing certain new schemes for the teaching
of law, some of them departing rather radically from present
methods. Dean Richards in his inimitable way thus brought
the various planes of thought to safe landings for careful in-
spection:
"As I sat here listening to the very able papers, I
recalled the story of a Western railroad attorney. He
was a lawyer of the old school, who appreciated good
whisky, and played poker with skill. He knew all the
big shippers by their first names, and was a very use-
ful man for his company. In his later years he was
called into a conference with the representatives of
other roads to consider the question of freight rates.
The modern bespectacled expert was there, with his
DEAN RICHARDS AND THE LAW SCHOOL ASS'N.
statistical tables and graphs, holding forth at great
length. After our friend had listened for an hour or
so to this discussion, most of which was unintelligible
to him, he was asked for his opinion. He replied:
'Well, I'll tell you; I think it's time we all went out and
had a drink!'"
If he suspected an attitude of superiority he could deal
with it most delightfully:
"An Eastern friend of mine, who has read a great
deal of history, remarked to me, rather unkindly, I
thought, that his study of history had led him to the
conclusion that the highest type of civilization never
spreads very far from the sea coast.. . If my friend's
observations are sound, I suppose those of us who live
west of the Alleghanies need not worry, since, if the
projects presented to us today are the outpourings of
the highest type of civilization, they will never get to
us. But one can never be sure. Perhaps we should
take precautions. Sporadic cases of factual and
functional approach, rights, powers, privileges, and
immunities, jural relations, etc., have been noted or
proclaimed in schools west of the Alleghanies, but so
far the Corn Belt and the Pacific Coast are un-
touched."
Some of Dean Richards' friends liked to twit him about
his early practice experience in the State of Missouri, claiming
that it had left a permanent impress upon his character with
reference to the ease with which he might be convinced as to
new and unusual proposals.
His attitude was well illustrated in the suggestion that
those proposing the new plans demonstrate their efficiency
before general adoption by law schools would seem desirable:
"We are glad to see these schools, with high repu-
tations and strong financial backing, willing to put
these ideas to the test of practical application. We
shall watch the experiment with interest, not expect-
ing anything very decisive in the way of results. If
these schools have great teachers And intelligent
WISCONSIN LAW REVIEW
'poison squads,' the results will be favorable, no
doubt, for an intelligent subject can stand a great
deal of intellectual punishment without appreciable
impairment."
His ability to take a birds-eye view of any new movement
or proposal was shown in this further comment:
"The philosophical stirrings which these projects
indicate can be detected in any full-time faculty today.
They are the to-be-expected results, when full-time
teachers, caught early, were substituted in our facul-
ties in place of the hard-bitten lawyers and judges of
a generation ago. We are now definitely headed back
toward the continental ideal of legal education. We
have created a situation out of which philosophers are
born, or in process of being born."
He was never misled either by old labels or new ones. His
advice as to the manner of securing consideration and adoption
by the profession of modern ideas as to the content of the law
courses, shows both his keen insight and his practicality:
"Every intelligent student of our English law rec-
ognizes the strength and importance of the social
forces back of the law which cause changes in its
scope and direction. The law makes articulate this
social pressure. We want our students to know and
appreciate these forces, and feel that they must know
and appreciate them, if they are to become sound
lawyers. The question, then, is not the desirability of
this knowledge; that, I think, is conceded; but what is
the most effective method of getting it? It seems to
me that the methods presented in these papers are
open to the objection that they are calculated unduly
to alarm the patient. All the familiar stage settings
of the accepted order are changed. Old familiar labels
are removed, and strange new ones substituted. There
is a challenge in the whole proceeding that begets
opposition. Men do not object to new ideas, if they
are not so labeled; but they are very stubborn about
their labels, and their habitual procedure, and you
278
DEAN RICHARDS AND THE LAW SCHOOL ASS'N.
cannot hustle them. President Lowell, in his book on
Public Opinion, said very wisely that history shows
that no great reforms have been won by frontal
attacks, but always by flank movements. We must
bore from within. The radicals in the labor unions
have the right idea. They don't stay outside and
fight the unions, but join the unions and attempt to
instill their ideas into labor union precepts. That is
not fraud, I suppose, but psychology, even admitting
there is a twilight zone between fraud and psychology
that is hard to define."
His saneness and sense of proportion permitted him to
keep an even balance with his eye on the main purpose of legal
education. This was his comment on the place of the social
sciences in law teaching:
"It is now said that the law is not self-sufficient;
that to understand it we must go back and in our
classrooms discuss the great 'energizing forces' that
lie back of our law. To that we all agree, in part. It
is said the law but gives sanctions to economic and
social forces; if that is true, then by all means turn
our law schools into schools of economics and sociol-
ogy, and treat our law as procedure only. To accept
this idea is to close your eyes to the fact that, while
the law does give its sanctions, it has very profoundly
contributed to the determination and scope of these
social forces. Law cannot be ignored as a factor in
economic theory, any more than economics can be
ignored in legal theory.
"The economists and sociologists loom large in the
world today. . . They are working in the same gen-
eral fields as ourselves, trying to plat the probable
course of that very uncertain and contrary creature,
man. The law, while necessarily more empirical,
has submitted its theories rather successfully to the
acid test of practical application. We need the aid of
economists, and they need ours. We should work with
them, but not surrender to them."
WISCONSIN LAW REVIEW
In considering the content of one of the courses which
had been described, wherein some of the readings suggested
included Keyser's Mathematical Philosophy; Karl Pearson's
Grammar of Science; Gilbert Lewis' Anatomy of Science; A. D.
Ritchie's Scientific Method; Bertrand Russell's A.B.C. of
Atoms; John Dewey's Experimental Logic; the same author's
Human Nature and Conduct; Mill's Logic; F. C. S. Schiller's
Formal Logic; H. E. Cunningham's Text-Book of Logic; P. W.
Bridgman's Logic of Modern Physics; Frederick Barry's
Scientific Habit of Thought, Dean Richards remarked:
"I have no doubt, after reading [the instructor's]
description of his course, that he got a great deal of
good out of it; but I am rather skeptical of the bene-
fits which his students derived from it, if they were
the usual type of students with which we are familiar.
I suspect there is not a great deal of difference be-
tween a Yale student and the students of other
schools. . . .The list of readings suggested seems
a greater burden than their immature shoulders can
bear. I would feel very sorry for them, if I did not
know their resiliency, and the ease with which they
take on a protective coloration."
Reference to certain proposed law courses brought
forth this discriminating observation concerning research:
"We have failed to appreciate that not every man
is capable of doing research work in a productive
way. We have apparently assumed that all we need
to make a research man is time and money. We give
our candidate time and money, and say to him, 'Now,
research.' He may, and he may not; probably not.
What he will always do is to collect materials, read
and digest what everyone has said on the subject,
compile mountains of cases, and card indexes galore.
The results will be embalmed in a long, dull disser-
tation, rehashing other men's ideas. His thesis is
printed, bound, and filed away. He receives a degree
perhaps, and is thenceforth known as 'Doctor.' But
DEAN RICHARDS AND THE LAW SCHOOL ASS'N.
the end is not yet. The next generation of prospective
Doctors must read this contribution and combine it
in a new rehash, and so on and on-a mounting pile
of words and a diminishing stock of ideas. . . . The
lawyer and the judge look to the law teacher to blaze
a path through the myriad of special instances; do
not disappoint him with colossal compilations, that
block the way, rather than clear it. Do not bewilder
him with new terminology and philosophical hair-
splitting."
Dean Richards' connection with the Association of Ameri-
can Law Schools has been responsible in large measure for
the sound progress made in legal education during the time
of its most rapid development. In addition to his many af-
firmative contributions he rendered during this construc-
tive period an invaluable service in a capacity that might be
compared to that of a careful building inspector.
The substantial progress of professional and learned
societies would be materially advanced if each organization
might have one Dean Richards to cause them to recheck their
proposals and build only on foundations that are both suitable
and substantial, rather than to proceed to an elaborate super-
structure where materials of great value may be wasted or
discarded because the whole has been erected too rapidly under
the influence of the high enthusiasm which tends to accompany
a building boom.
Unfortunately for education and for civilization there is
no mould in which are cast such men as Dean Richards. They
come but on rare occasions, leaving the world saner and
happier for their sojourn.
H. C. HORACK


Triangle Universities Nuclear Laboratory

Not a member yet

Legal Aid Work in Pennsylvania

The Legal Aid Clinic: A Means of Building Tough Mental Fiber

Bar Associations and the Law School Student Body

Civil and Criminal Liability of Physicians for Sterilization Operations

Law Schools Today and Tomorrow

Liability of Physicians for Sterilization Operations

Civil and Criminal Liability of Physicians for Sterilization Operations

Dean Richards and the Association of American Law Schools

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