Putting Procedure in Perspective: The Evolution of American Procedure To The 1970s

Lewis A. Grossman
American University, Washington College of Law

 

  1. From the American Revolution to the Mid-Nineteenth Century

    1. The United States inherited England's dual system of law and equity, although in many states and at the federal level the same courts administered both.
    2. Common law procedure

      1. Common law procedure was characterized by different forms of action (writs) for predefined categories of disputes. Great emphasis was placed on technical compliance with the complex procedural requirements specific to each writ.

      2. Multiple pleadings were the primary pretrial mechanism for framing the issues. There was no pretrial discovery, although equitable bills of discovery were available in aid of actions at law.

      3. There was very little joinder of claims and parties, remedies were generally limited to monetary damages, and juries determined all factual issues.

    3. Equity

      1. Equity dealt with matters not addressed at common law, such as fraud and trusts, and offered remedies not available at common law, such as injunction.

      2. Equity procedure was less technical and more flexible than common law procedure. There was only one form of action, and pleadings contained narratives of facts and evidence rather than technical formulas.

      3. Equity permitted joinder of claims and parties. Discovery was fairly extensive and was important in framing the issues.

      4. Many Americans were hesitant to embrace equity because a judge, rather than a jury, rendered the decisions.

  2. The Field Code

    1. Although actual practice in the United States departed somewhat from the stringency of historic common law procedure, mid-nineteenth century reformers were dissatisfied with the common law's technical complexity and procedural limitations.

    2. In 1848, the New York legislature enacted a Code of Procedure, containing 391 sections, drafted by a three man commission led by David Dudley Field.

      1. Field's stated goal was "to make legal proceedings more intelligible, more certain, more speedy, and less expensive." He wanted cases to be decided on the merits rather than on technicalities.

    3. Details of the Field Code

      1. The Code merged law and equity into one procedural system.

      2. It provided for one form of action for all claims. The complaint was to contain a "statement of the facts constituting the cause of action, in ordinary and plain language."

      3. The Code allowed some joinder of claims and parties and substantial pretrial discovery.

      4. The Code preserved the common law right to a jury trial and, indeed, extended it to some matters that would have been nonjury equity cases before the enactment of the Code.

    4. Did the Field Code owe more to common law or equity?

      1. On the surface, at least, the Code borrowed more from equity than from common law procedure.

      2. Early twentieth century law reformers, in their effort to demonstrate continuity between Field's vision and their own, tended to stress the Field Code's equitable roots. Subsequent commentators perpetuated the theory that the Field Code was equitable at its heart.

      3. Subrin

        1. Stephen Subrin advances a revisionist thesis. He contends that despite the indisputable commonalities between the Field Code and equity practice, "Field . . . leaned as much, or more, toward the view of common law procedure, as to equity."

        2. According to Subrin, Field did not intend Code procedure to duplicate the flexibility and judicial discretion of equity. Field valued the common law's formalism and rigidity, even though he objected to the manner in which it obscured facts and law.

      4. Bone

        1. Robert Bone, in contrast to Subrin, suggests that nineteenth-century code procedure truly was the embodiment of equity. But he discerns a confining structure in late nineteenth-century equity that Subrin does not see.

        2. According to Bone, Subrin and other scholars make the mistake of viewing the development of American procedural thought as having only two stages - a formalistic common law outlook ("rights-centered") and a modern functionalist vision ("pragmatic").

        3. Bone argues that both equity and code procedure in the late nineteenth century were products of an intermediate "right-remedy" vision that fell conceptually and chronologically between the rights-centered vision and the pragmatic one. Procedure growing out of the "right-remedy" view was flexible enough to allow judges to shape optimal remedies for determinate substantive rights, but it was constrained by the perceived structure of these rights.

  3. From the Field Code to the Federal Rules

    1. By 1900, 28 states adopted the Field Code in whole or in part.

    2. Several developments, however, conspired to make code pleading more restrictive and technical than it was in Field's original conception.

      1. Judges and practitioners strained to read older procedural requirements into the code.

      2. Widespread confusion about the code's requirement of "fact" pleading generated a body of complex and inconsistent case law regarding the distinctions between facts and evidence, on the one hand, and between facts and conclusions of law, on the other.

      3. A series of amendments to the Field Code approved by the New York Legislature in 1876 and 1880 resulted in the Throop Code, which was more detailed, more technical, and ten times longer than Field's version.

  4. The evolution of the Federal Rules of Civil Procedure

    1. Although many states merged law and equity by adopting the Field Code, the federal system remained a procedurally divided one.

      1. Under the Conformity Act of 1872, federal courts hearing cases at law followed the procedures of the state in which they sat. In equity cases, however, they followed federal equity procedures promulgated by the Supreme Court.

    2. Early twentieth-century reform

      1. In 1906, Roscoe Pound inspired a new wave of procedural reform with his ABA address decrying the technicality and rigidity of procedure.

      2. Reformers attacked the lack of uniformity in federal court procedures, condemned the hypertechnicality of the state procedures the federal courts were required to follow, and argued that procedure should be shaped by legal experts (judges and lawyers), not by legislatures. They envisioned a system in which cases were decided on the merits rather than on procedural grounds.

      3. The first phase of twentieth-century procedural reform was led by conservatives such as Shelton and Taft, who wanted to increase certainty for business and to deflect radical attacks on the courts.

      4. Subsequent reformers such as Charles Clark were motivated by more progressive impulses. They wanted to give federal courts the flexibility to guide and shape litigation arising from the surge of New Deal social welfare legislation.

    3. The 1934 Rules Enabling Act

      1. Congress delegated to the Supreme Court the authority to prescribe general rules of practice and procedure for all cases in the federal courts.

      2. The Court created the Advisory Committee on Civil Rules, composed of practitioners and academics, to draft the rules.

  5. The Federal Rules of Civil Procedure (1938)

    1. The nontechnical and general nature of the Rules' provisions reflected the drafters' preference for simplicity and flexibility. The Rules de-emphasized pleading and instead depended on ample discovery to frame the issues. They also permitted extensive joinder.

    2. The historical significance of the adoption of the Federal Rules

      1. The drafters of the Rules did not portray their work as a radical departure from the Field Code approach.

      2. Subrin, however, sees the adoption of the Federal Rules as a "revolutionary" moment in which "equity conquered common law."

      3. Bone sees early twentieth-century procedural reform as an important but less dramatic development. Both late nineteenth-century ("right-remedy") reformers and early twentieth-century ("pragmatic") reformers prized flexibility and judicial discretion, but the later group valued them because they would ensure accurate fact determination and efficient litigation.

  6. The first decades of the Federal Rules

    1. The Federal Rules heavily influenced the procedures of many states, some of which adopted them wholesale.

    2. Until the early 1970s, the Federal Rules received, in Judith Resnik's words, "generally good press." In the 1970's, however, commentators increasingly began to assert that the Rules' failure to structure and control litigation engendered waste, delay, abuse, and court congestion.

    3. The challenge of complex litigation

      1. Under the Federal Rules, the federal docket underwent a transformation from "traditional adjudication" to "public law litigation" (Abram Chayes), from "cases" to "litigation"(Judith Resnik).

      2. This trend was accelerated by the 1966 amendments to Rule 23, which led to more cases being certified as class actions.

      3. By the 1970s, there were increasing calls for "managerial judging," for distinct procedures for different types of cases, and for limitations on adversarial attorney behavior.

     

History of American Civil Procedure
  Common Law (Writs) Equity Field Code FRCP
Law and Equity Distinct procedures and (in some states but not in federal system) separate courts Distinct procedures and (in some states but not in federal system) separate courts Merged Merged
Remedies Ordinarily money damages Specific performance, injunctions, etc. Entire range Entire range
Types of actions Wide range of claims defined by discrete forms of action (writs) Specific matters not adequately addressed at common law, e.g., fraud, mistake, breach of fiduciary duty, uses and trusts Entire range Entire range
Required content of plaintiff's initial pleading Technical legal formulas and conclusions; some facts ("declaration") Narrative of facts, statement of evidence, interrogatories ("bill of complaint") "Statement of the facts constituting the cause of action, in ordinary and plain language." No evidence or legal conclusions. ("complaint") "A short and plain statement of the claim showing that the pleader is entitled to relief." Only enough to provide notice. ("complaint")
Amendment of pleadings allowed? No Yes Yes, but somewhat limited Yes, liberal amendment permitted
Technical complexity and stress on technical compliance Extremely high. Different requirements for each form of action. Had to select proper writ and plead it perfectly. Meritorious cases often failed for technical failures in pleading. Much less than common law. Only one form of action. Cases more likely to be decided on the merits. But independent body of technical requirements did develop. Much less than common law. Only one form of action. Stress on plain language in pleadings. But technicalities emerged, e.g., facts vs. evidence/legal conclusions. Very low stress on technicalities. One form of action. Cases decided on merits more often than on procedural flaws.
Importance of pleadings in framing issues Extremely high. Pleading was the only pre-trial device. Multiple pleadings led to one issue of fact or law. High, but much less than common law High, but much less than common law Not important. Pleadings intended to provide notice, not frame issues. Issues framed by discovery and other pretrial devices.
Joinder of claims and parties Joinder of claims virtually forbidden. Joinder of parties extremely limited Fairly liberal joinder of claims and parties Rather restrictive provisions, often interpreted broadly in light of equity Very liberal joinder of claims and parties.
Pretrial discovery None (but equitable bills of discovery in aid of actions at law developed - with important restrictions) Fairly extensive discovery allowed (used in lieu of face-to-face trial) No separate equitable bill of discovery required, but restrictions from equity persisted. No interrogs. Very extensive discovery allowed
Jury Yes, for issues of fact No Yes, for factual issues in actions for recovery of money or specific property. No jury demand required. No directed verdicts. Yes, for all factual issues related to legal claims. Jury demand required. Directed verdicts.