The Myth of Civil Procedure Reform
Most lawyers in the United States emerge from law school in the grip of a myth. In the beginning, the myth runs, there was common law pleading, and it was very bad. Parties exchanged almost interminable series of pleadings -- from declaration to surrebutter and beyond -- in expensive and unsuccessful attempts to filter out invalid claims and defences without holding trials. Plaintiffs could not join related claims; defendants could not assert more than one defence; and advocates argued about how to fit claims into an incoherent medieval system of forms of action.
After this had gone on for 500 years, God said, 'let Bentham be' and all was light. Over the opposition of greedy conservative lawyers, an enlightened English public won legislation culminating in the Judicature Acts of 1873 and 1875. In the United States, the Field Code of 1848 initiated similar reforms, which the Federal Rules of Civil Procedure of 1938 consummated. As a result, cases were decided on their merits, without wasteful technicalities, and justice was done until 1975, when civil litigation somehow became even more expensive and time-consuming than under the common law.
Even today, many first-year law students find much of this story in their books1 or hear it in their civil procedure classes. Most teachers realize that it is an oversimplification, 2 but it furnishes too useful an organizing perspective to discard. Indeed, it is hard to survey common law procedure and its replacements at all without students hearing this as a narrative of progress. Most never learn or soon forget most of the necessary qualifications, bringing the myth into their lives as lawyers and judges. The forms of action we have buried, but we keep on digging them up to show how rotten they were.
The myth of past reform impedes present reform. If we believe that we have already emerged from darkness into light, we are less likely to seek further illumination. The historical narrative that structures our understanding of civil procedure functions as a justification for the status quo.
I appreciate the assistance of Stephen Burbank, Aviam Soifer, Stephen Subrin, Stephen Yeazell, and Adrian Zuckerman. This essay is dedicated to Benjamin Kaplan, who taught me legal history under guise of employing me as a research assistant.____________________