Selected Papers of Homer Cummings, Attorney General of the United States, 1933-1939

By Carl Brent Swisher; Homer S. Cummings | Go to book overview

1. A Dormant Reform Movement Revived

[The problem of delay and injustice arising from the complexity of procedure in actions at law in the federal courts has been one of long standing. When the federal judicial system was set up in 1789, the Supreme Court was authorized to prescribe rules for suits in equity, but the Congress failed to provide a code of practice for actions at law and simply prescribed that the mode of procedure which was used in 1789 in the state in which the court was sitting should apply. By later statutes the Congress applied the same principle to states admitted since 1789, but the conformity provision in each instance referred to state procedure in effect on some fixed date. The Conformity Act, passed in 1872, for the first time provided that the practice in federal courts, with some modification, should "conform, as near as may be" to that currently in effect in the courts of the several states.

As early as 1822 the Supreme Court promulgated rules of procedure for cases in equity. These rules, largely declaratory of existing procedure, were revised twenty years later, but it was not until 1912 that the equity procedure was thoroughly revised. Forceful agitation for the reform of procedure in actions at law, which commenced as early as 1886, came to nothing though efforts were made down through the 1920's.

In 1934, Attorney General Cummings renewed the struggle for procedural reform--after the American Bar Association, long a proponent, had given up in despair--and pressed it to a successful conclusion. Within ninety days of the time he announced his position, the Congress granted the necessary authority. Through a committee appointed and supervised by the Supreme Court, rules of practice in both law and equity were consolidated, liberalized, simplified, and made flexible as well as uniform. The statute authorizing the project provided that the rules so proposed should be submitted to the Congress at the beginning of a regular session and should not take effect until the end of such session, so that the Congress might have an opportunity to modify or disapprove the proposals. They were so submitted at the Third Session of the Seventy-fifth Congress and, no adverse action having been taken, became effective September 16, 1938. Ed.]

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