Field Code and Federal Rules and Common law pleading

I have to confess at the outset that this class will cover some of the most arcane and obscure material you probably will ever encounter in law school. The jurisprudential question behind the class, however, is this: To what extent does legal procedure impact our understanding of justice? More practically, the question arises as to the extent to which pleading requirements should be the possession and preserve of a technically-trained legal establishment, or whether pleading should be simple and accessible to any legal practitioner and perhaps even pro se plaintiffs. How easy should it be, that is, to "get your day in court?"

Introduction

The means by which we will try to address this question today is to examine the procedural changes brought to New York (and many other states) law through the work of David Dudley Field and the Commission appointed by the New York Legislature in the 1840s. In order to look at procedural change we can do it in one of two ways.

First, and this is usually how it is done if it is ever done in law school, is to assign reading like I did that talks about the results of codification. As a preliminary matter, Professor Clark really goes beyond the call of duty when he specifies four reasons why a state might have wanted to pursue a course of procedural reform (growth of American law; uncertainty about what to do with inherited English law; the ample discrtion accorded the judiciary; and the lack of care and standardization in the drafting of statutes). Then, after introducing reasons for code adoption, a few excerpts are sometimes given from the Field Code, and the professor rushes quickly to the Federal Rules of 1938 with a sigh of relief and proclaims all is well. In most cases, however, I think you are just presented the Federal Rules of Civil Procedure as a given, as if they dropped down from heaven intact, and told to study them. Generally, this is how it should be. Why clutter your time/mind with stuff that we no longer do?

But here is where a slight problem emerges for thinking people. When you study the Federal Rules (or even the Field Code) you run smack into concepts that are totally unfamiliar to you and which must, you think, if you think about that matter, have a history. The most obvious example is that words such as "action in law" and "case in equity" seem to be used interchangeably. But even the merest mention of these two indicates that there may be quite a history behind them, a history which is complex but which is elided in the Federal Rules.

And so it is. And then, when you scratch beneath the surface of the Federal Rules a bit more, you find that nearly every idea in them has had a long history in the common law and that the appearance in the Federal Rules is the result either of compromise or of one side defeating the other in defining what just procedure is. When it dawns on you fully that the Federal Rules are simply a historical product that attempts to capture our current understanding of fair procedure, it is like the realization you have when you take a look at a picture of your great-grandmother or father and realize that you have the same chin or the same eyes that they do. It both scares you and makes you grateful to be part of a family.

In short, what I am saying is that standing behind the Federal Rules of Civil Procedure of 1938 is the Field Code of 1848 (but standing behind the Rules only obliquely, as Stephen Subrin has shown), and standing behind the Field Code are the plethora of common law causes of action that grew up in English common law from the 12th - 17th centuries. When you know there existed a bunch of these causes of action, you are ready for my second point.

Second, in order to understand the scope of procedural reform in the assignment I gave you, you need to know what transpired before this in New York. It is really not enough to know that Bentham, for example, scored the common law tradition because it was costly and inefficient and in fact did not deliver justice. In order to enter into the world of code reform, you need to know the language and operation of the common law courts in the early 19th century. The handouts I will give in class today, and on which I will spend some time, bring you into the arcane but terribly illuminating world of common law pleading (before the days of code reform). It is this world that I would like to bring to you briefly in class today.

Therefore, the focus of the first part of class will be on the realities of common law pleading in New York (and the rest of the United States) in the early 19th century. Then, in the second half of class, we will look at code reform. The next page will consider these themes.

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