INTRODUCTION

I. COMMON LAW, EQUITY, AND THE FEDERAL RULES OF CIVIL PROCEDURE

A. Common Law Procedure

B. Equity Procedure

C. The Equity-Dominated Federal Rules of Civil Procedure

II. THE COMMON LAW MENTALITY IN PRE-TWENTIETH CENTURY AMERICA

A. The Early Distrust of Equity, Evolution to Common Law Procedure, and Passionate Belief in the Jury

B. The Disengagement of Procedure and Substance

C. Codification and the Field Code: Maintaining the Common Law Mentality

D. Nineteenth Century Rivulets Toward the Sea of Procedural Simplicity

1. Looking Backwards: Constricting the Code

2. The Much Maligned Throop Code

3. Simplified English Procedure

III. THE HISTORICAL BACKGROUND OF THE FEDERAL RULES: EQUITY TRIUMPHS

A. Roscoe Pound and Procedural Reform

B. Thomas W. Shelton and the ABA Enabling Act Movement

1. Rejecting the Common Law Mentality

2. Embracing Equity

C. Charles E. Clark and the Professional Cleansing

D. The Federal Rules and the Results of an Equity-Dominated System

Iv. LIVING WITH A PROCEDURAL SYSTEM DOMINATED BY EQUITY

A. Methods of Containment Rejected and Accepted

B. Coping with an Equity System

C. Neo-Classical Civil Procedure

CONCLUSION

After almost twenty-five years of battle, Congress passed the Enabling Act of by equity. The defense of equity power in constitutional cases designed to restructure public institutions tends to undervalue the problem of how to translate rights, constitutional or otherwise, into daily realities for the bulk of citizens. [FN22] Aspects of common law procedure and thought, not equity, may be required to help deliver or vindicate rights, now that equity has opened a new rights frontier. Focusing on the historical currents that resulted in the Federal Rules will illustrate what an enormous distance was traveled, how one-sided the procedural choices became, and the problems implicit in those choices. Perhaps exploring where one came from can help clarify where one may wish to go.

Part I of this Article first looks at the major components of common law and equity procedure, and then examines the domination of an equity mentality in the US Rules Part II explores the American procedural experience before the twentieth century, and demonstrates how David Dudley Field and his 1848 New York Code were tied to a common law procedural outlook. Part III concentrates on Roscoe Pound (who initiated the twentieth century procedural reform effort), *914 Thomas Shelton (who led the American Bar Association ("ABA") Enabling Act Movement), and Charles Clark (the major draftsman of the Federal Rules). Through understanding these men and the interests they represented, one can see that we did not stumble into an equity system; people with identifiable agendas wanted it. Part IV examines how the Federal Rules advocate rejected methods that might have helped balance and control their equity procedure, why the methods of confining the system failed, and why current approaches to redress the imbalance of an equity-dominated system will also fail. It concludes with a summary of fundamental constraints rejected by the advocates of uniform federal rules of procedure. My goal is to rescue some quite profound voices from the wilderness.

Much of the formal litigation in England historically took place in a two-court system: "common law" or "law" courts, and "Chancery" or "equity" courts. [FN23] Although they were complementary, law and equity courts each had a distinct procedural system, jurisprudence, and outlook. The development of contemporary American civil procedure cannot be understood without acknowledging these differences. The more formalized common law procedure has been so ridiculed that we tend to ignore its development to meet important needs, some of which still endure, and that many of its underlying purposes still make sense. Conversely, especially during this century, equity has been touted in ways that obscure the underlying drawbacks to its use as the procedural model.

beings, rather than divine justice by mysterious means. It now became logical for a trial to focus on proof relevant to those specific facts at issue that carry with them a legal consequence. [FN33]

Common law also evolved as a technical pleading system designed to resolve a single issue. When it became apparent that specific facts should bring about specific legal results, it made sense to determine whether the plaintiff's story, if true, would permit recovery and, if so, what facts were in dispute. Assuming the defendant did not contest that he was properly brought before the correct court, but still disputed the case, the common law procedure permitted first a demurrer, and then confession and avoidance, or traverse. [FN34] Under single issue pleading, the parties pleaded back and forth until one side either demurred, resulting in a legal issue, or traversed, resulting in a factual issue. [FN35]

*917 Lawyers well into the nineteenth century on both sides of the Atlantic viewed the "common law" procedural system as comprising the writ or form of action, the jury, and the technical pleading requirements that attempted to reduce cases to a single issue. This system became rigid and rarefied. [FN36] Due to the countless pleading rules, a party could easily lose on technical grounds. [FN37] Lawyers had to analogize to known writs and use "fictions" because of the rigidity of some forms of action. [FN38] Lawyers also found other ways around the common law rigidities, such as asserting the common count and general denials, which made a mockery of the common law's attempt to define, classify, and clarify. [FN39]

The common law procedural system, nonetheless, had its virtues. The formality and confining nature of the writs and pleading rules permitted judges, who were centralized in London, to attempt (and often to succeed) in forging a consistent, rational body of law, which provided lawyers with analytical cubbyholes. [FN40] The common law system, furthermore, permitted increased participation by the lay community. If the pleading resulted in the need for a factual determination, it could be sent to the county where the parties resided. A judge from the Central Court could easily carry the papers, reduced to a single issue, in his satchel, and convene a jury at an "assize."

The focusing of cases to a single issue also aided both judges and lawyers in their effort to understand and apply the law, as well as assisting lay jurors in resolving factual disputes. The use of known writs, each with their own process, substance, and remedy, allowed the integration of the ends sought and means used. The system presumably achieved--or at least tried to achieve--some degree of predictability about what legal consequences citizens could expect to flow from their conduct. Comparing the traditional common law system to that of his own day, Maitland (1850-1906) commented on the common law's attempt to control discretion: "Now-a-days all is regulated by general *918 rules with a wide discretion left in the Court. In the Middle Ages discretion is entirely law that developed around the writs, the Chancellor was expected to consider all of the circumstances and interests of all affected parties. He consequently was also to consider the larger moral issues and questions of fairness. [FN56] The equity system did not revolve around the search for a single issue. Multiple parties could, and often had to, be joined. [FN57] There was now a considerably larger litigation *920 package. This less individualized justice demanded and resulted in more discretionary power lodged in a single Chancellor, who resolved--often in a most leisurely manner--issues both of law and fact. [FN58] The lay jury was normally excluded. [FN59]

By the sixteenth century, the development of common law jurisprudence thus reflected a very different legal consciousness from equity. Common law was the more confining, rigid, and predictable system; equity was more flexible, discretionary, and individualized. Just as the common law procedural rules and the growth of common law rights were related, so too were the wide-open equity procedures related to the scope of the Chancellor's discretion and his ability to create new legal principles. In equity, the Chancellor was required to look at more parties, issues, documents, and potential remedies, but he was less bound by precedent and was permitted to determine both questions of facts and law. [FN60] The equity approach distinctly differed from the writdominated system. Judges were given more power by being released from confinement to a single writ, a single form of action, and a single issue, nor by being as bound by precedent; and they did not share power with lay juries. [FN61]

In assessing the place of equity practice in the overall legal system, it is critical to realize the extent to which the common law system operated as a brake. One could not turn to equity if there was an adequate remedy at law. [FN62] Equity grew interstitially, to fill in the gaps of substantive common law (such as the absence of law relating to trusts) and to provide a broader array of remedies--specific performance, injunctions, and accountings. Equity thus provided a "gloss" or "appendix" to the more structured common law. [FN63] An expansive equity practice developed as a necessary companion to common law. [FN64]

*921 The disparities between law and equity were not always stark. Not all common law declarations were incisive, and common law pleading did not always isolate tidy issues; sometimes there was joinder of parties or issues. Conversely, equity often developed its own formal rules of both substance and process. [FN65] It is true, however, that when looked at as a whole, the common law writ/single issue system took seriously the importance of defining the case; integrating forms of action with procedure and remedy; confining the size of disputes; and articulating the legal and factual issues. In short, a goal of the common law was predictability by identifying fact patterns that would have clearly articulated consequences.

This Article will explore flaws in equity and law when we examine the Federal Rules there had been no movement toward equity. To the contrary, the Field Code of 1848 took some steps in that direction, and there were subsequent experiments in liberalized pleading, joinder and discovery. [FN84] What I am saying is that the Federal Rules were revolutionary in their approach and impact because they borrowed so much from equity and rejected so many of the restraining and narrowing features of historic common law procedure. It was the synergistic effect of consistently and repeatedly choosing the most wide-open solutions that was so critical for the evolution to what exists today.

Second, I am not saying that the Federal Rules are solely responsible for shaping the contours of modern civil litigation. Factors such as citizen awareness of rights, size and scope of government, and individual and societal expectations for the good and protected life should also be considered. [FN85] Causes and effects here, as with other historical questions, are virtually impossible to disentangle. So far as I can determine, the Federal Rules and the Enabling Act are simultaneously an effect, cause, reflection, and symbol of our legal system, which is in turn an effect, cause, reflection, and symbol of the country's social-economic-political structure. It cannot be denied, however, that the Federal Rules facilitated other factors that pushed in the same expansive, unbounded direction. [FN86]

Third, to criticize a system in which equity procedure has swallowed the law is not to criticize historic equity or those attributes of modern practice that utilize equity procedure. This is not an attack on *926 those aspects of Brown v. Board of Education [FN87] or other structural cases that attempt to re-interpret constitutional rights in light of experience and evolving norms of what is humanitarian. I do criticize, however, the availability of equity practice for all cases, the failure to integrate substance and process, and the failure to define, categorize, and make rules after new rights are created. In other words, I question the view of equity as the dominant or sole mode instead of as a companion to a more defined system.

Fourth, I am not suggesting that we should return to common law pleading or to the Field Code. Nonetheless, there are aspects of common law thought, pre- Federal Rules procedure, and legal formalism that may continue to make sense and should inform our debate about appropriate American civil procedure. [FN88]

One way of gaining perspective on current civil procedure is to examine the previous American experience. By the end of the nineteenth century, some lawyers, particularly in New York, were proposing simplified, flexible rules that would permit judges to escape procedural restraints in order to do substantive justice. [FN89] The tensions associated with a federal system also collided with the common law integration of substance and process. Until the twentieth century, however, the predominant mode of procedural thought, Supreme Court, with the approval of the entire bench, instructed a jury that although judges are presumed to be "the best judges of law," questions of both law and fact "are lawfully within your power of decision." [FN104] The historian William Nelson reminds us that to the colonist "the jury was viewed as a means of controlling judges' discretion and restraining their possible arbitrary tendencies." [FN105] He also suggests that the jury was a vital means for officials to obtain support for the law. [FN106]

*929 By the beginning of the nineteenth century, American judges had begun to restrict the role of the jury. They questioned the jury's right to decide issues of law, tightened rules of evidence in order to control what juries heard, treated what had been fact issues as law issues, and regularly set aside jury verdicts as contrary to the law. [FN107] Also, the extension of equity and admiralty jurisdiction placed whole classes of cases beyond the reach of juries. [FN108] These developments transformed what had been questions for the community into questions for lawyers and judges. Over time, many lawyers viewed the jury merely as a mode of dispute resolution, and not as an integral part of democratic government.

Several factors in the American experience began to disengage matters of substance, procedure, and remedy that the common law had attempted to integrate. Gradually, treatises and law schools replaced apprenticing as the preferred method of learning to practice law. [FN109] This disembodied the study of law from practical considerations that are more obvious when one learns by doing. Sir William Blackstone also published his immensely influential four volumes of Commentaries [FN110] from 1765 to 1769. [FN111] Blackstone atomized the study of law by separating not only rights from wrongs, but also the methods of enforcement *930 from both. He treated English law as a rational, objective science, congruent with natural law. Blackstone, thus, disassociated the learning of rights, wrongs, and methods of enforcement from the socialeconomic-political environment. [FN112]

Federalism also tended to divert attention from the integration of rights and the methods for vindicating those rights. The establishment of separate federal courts presented the problem of what law to apply. It was unclear whether the Rules of Decision section of the Judiciary Act of 1789 covered procedural law, but the Process Act of the same year supplied the same basic formula: apply state law in federal court, unless a federal law provides otherwise. [FN113] Subsequent process and conformity acts repeated the pattern. [FN114] This would have permitted state substantive law and state procedure to be applied simultaneously in federal court, but federal court excursions into substantive law separated substantive and procedural lawmaking. [FN115] In 1875, the federal trial courts were granted jurisdiction to hear suits arising under usual portrayal, a parent to the Federal Rules. [FN122]

Both opponents and proponents of codification leaned heavily upon the common law tradition. For Joseph Story, who wrote his Commentaries on Equity Pleading in 1834 and Commentaries on Equity Jurisprudence in 1836, equity was a system "auxiliary" to law and its "peculiar province" was correcting defects in the stricter common law. [FN123] Story was concerned about "the arbitrary power" and "despotic and sovereign authority" inherent in an unrestrained equity court. [FN124] The limitations on equity were to be reliance on precedents and conformity to procedure. Common law and equity courts, in Story's view, were best kept separate. [FN125] Equity without law would be too discretionary. Law without equity would be too stagnant. For Story, the merger of law and equity-- soon to be accomplished in the Field Code--would endanger the confining quality of law and the creative force of equity. [FN126]

The merger of law and equity does have the capacity to upset the law-equity balance in favor of equity; if one set of rules must work for all cases, this, as we will see, may lead to more flexible, equity-like procedures. But a closer look at the merger under the 1848 Field Code shows more concern for the confining aspects of common law procedure than is generally recognized. [FN127] It was not that David Dudley Field and the other New York commissioners on Practice and Pleadings completely embraced common law procedure or totally rejected equity. They complained that the common law, and methods designed to circumvent that law, had resulted in a system that obscured facts and legal *933 issues, rather than distilling and clarifying them. [FN128] The separate courts for law and equity seemed unproductive, illogical, and wasteful to them; lawyers often did not know which court to enter, and frequently an entire controversy could not be decided in one suit. [FN129] Within the legal reform tradition of Bentham, Field and the other commissioners attempted to weed out what to their thinking was needless technicality that prevented the simple and inexpensive application of law. [FN130] They were returning to an earlier period in English equity practice, before equity pleading itself became extraordinarily complicated. [FN131]

Field and the other commissioners wrote that they used equity as a model. [FN132] Arphaxed Loomis, one of the original commissioners, described how he was forced to reject common law principles and turn to equity in order to draft a procedural code for a merged system of law and equity:

I prepared and submitted . . . about 60 sections of law, based on the Common Law System, abolishing forms of action and general issues and requiring all pleadings to be sworn to, as to belief. I found serious difficulty in applying it to Chancery cases and in framing fixed Common Law issues under it. I then abandoned it and drew up some 70 or 80 sections based on Chancery principles, abolishing forms of actions, applying it to all kinds of actions . . . . The system approaches and assimilates more nearly with the proscriptions, was needed to enforce the rights to be contained in the companion substantive code that he had envisioned. [FN147] As *936 at common law, procedure had to intermesh with the rights, in order for the rights to be delivered. For Field, procedural simplicity meant neither the absence of definition and constraint, nor did it mean discretion and flexibility.

As in common law procedure, Field and the other commissioners wanted pleadings to reveal each side's position and to narrow the controversy, thus leading to "the real charge" and "the real defense" as expeditiously as possible. [FN148] The Field Code contained a strong verification requirement to encourage truthful pleading, prevent "to a considerable extent groundless suits and groundless defenses," and compel the admission of the "undisputed" facts. [FN149] Although somewhat broader than at common law, the Code joinder provisions remained confining and limiting. Plaintiffs could be joined only if they had "an interest in the subject of the action, and in obtaining the relief demanded," and defendants if they had "an interest in the controversy, adverse to the plaintiff." [FN150] Causes of action could be joined only if they belonged to one of a group of classes of cases, and if the "causes of action . . . must equally affect all the parties to the action." [FN151]

Field's major purpose was to reduce the amount of documentation. [FN152] A critical step in facilitating merger was to make equity trials like law trials, with testimony in open court. [FN153] The Field Code eliminated equitable bills of discovery and interrogatories as part of the equitable bill. [FN154] The Code included no interrogatory provisions. Motions *937 to produce documents and for requests for admission had severe limitations. [FN155] Oral depositions were permitted only of the opposing party, in lieu of calling the adverse party at trial, and subject to "the same rules of examination" as at trial. [FN156] A pretrial deposition of the adverse party was to be before a judge, who would rule on evidence objections. [FN157]

The Field Code was jury-empowering. Field feared the potential tyranny of the unrestrained judge. The heart of his belief in codification was that legislators, not judges, should enact laws. [FN158] Field wrote that "our experience has made us regard it as a first principle, that every common law judge, whether in the highest courts or the lowest, should sit at trials with juries; a principle which I would extend to equity judges also." [FN159] The commissioners spoke of the jury as one of "[o]ur most valued institutions" and seemed to mean it. [FN160] The Field Code extended the right to jury trial beyond state constitutional protection, and included some cases that had previously been nonjury equity cases. [FN161] It was up to the jury to decide whether it wanted to render a general or special verdict. [FN162] There was no directed verdict provision in the Code. [FN163]

Prior to the Field Code, complaints about the expense, delay, and unwieldiness of equity cases were legion. [FN164] Chancellor Kent had been of action. [FN176] Needing some structure for their analysis of cases, many lawyers, not surprisingly, operated under the new codes while still trying to fit their allegations into forms they knew. Some judges ignored merger and treated law and equity as separate. [FN177] Others interpreted the complaint in terms of forms of action, insisted that pleadings comply with common law technicalities, and required that the complaint clearly state a single theory of recovery, binding on the pleader at trial. [FN178] Judges also confined the applicability of the joinder and discovery provisions. [FN179] Rebellion against the restrictive handling of procedural codes by some courts influenced the drafting methods and procedural choices of later Federal Rule reformers. [FN180]

Although not adopting the commissioners' proposed full length procedural code, the New York state legislature adopted amendments (mostly in 1876 and 1880) bringing the New York Code of Civil Procedure from its initial 392 provisions to 3441 provisions by 1897. [FN181] This Code, called the Throop Code, was in effect as amended until 1921. [FN182] It was attacked by bar committees for intermingling substantive and procedural provisions, and for being too long, too complicated, "too minute and technical, and lack[ing] elasticity and adaptability." [FN183]

Four proposed changes came out of the attack on the Throop Code, all of which carried over into twentieth century procedural reform. The changes leaned heavily toward equity procedure and thought. First, to counter the Throopian density and technicality, the new rules were to be fewer and more permissive in terms of joinder. [FN184] *941 The following goal stated by a bar committee in 1898 will sound familiar to modern proceduralists:

The practice in civil cases should be made so simple and elastic that courts and judges may be able to pass upon the substantive rights of the parties in each case, with as little restraint as is consistent with an orderly administration of justice; or to adopt the language of Lord Coleridge, "The science of statement should not be deemed of more importance than the substance of rights." [FN185]

This quest for simplicity included a desire to escape the pleading complexities arising from judicial attempts to interpret what pleading "facts" under the Field Code meant. There was much dispute in the case law about whether a particular allegation was a "dry naked actual fact," [FN186] evidence, an ultimate fact, or a conclusion of law. Such disputes led to increasing dissatisfaction with technicality and definition and procedure. [FN187]

The simplicity theme was buttressed by a second, companion complaint that the Throop Code put unrelated matters side by side--a "patent lack of arrangement and symmetry." [FN188] The 1898 New York Bar Association committee on code both simpler and more liberal than the Field Code. [FN197] These English developments, pushing away from a dual common law/equity procedural system, to one looking primarily like equity, were later frequently cited as successful and desirable reforms by participants in the ABA movement for uniform general federal rules. [FN198]

During the last two decades of the nineteenth century, there were several attempts within the American Bar Association to have the Conformity Act of 1872 replaced by uniform federal rules. One proposal went so far as to suggest that all civil cases in federal courts be governed by equity practice. [FN199] All attempts, however, failed to win ABA membership approval. [FN200]

*944 In 1906, Roscoe Pound rekindled interest in procedural reform in his famous address at the annual ABA convention. [FN201] Five years later, Thomas Shelton began the ABA movement for Congress to pass an Enabling Act authorizing the Supreme Court to promulgate uniform federal rules. [FN202] Law school professors, such as Charles Clark, joined the bandwagon. What had begun as a reform with deep conservative undercurrents was enacted as New Deal, liberal legislation.

The basic theme sounded by Pound remained as a constant in the movement. Formal procedural rules were no longer appropriate to define, confine, and attempt to deliver substantive law in a predictable manner. Instead, procedure was to step aside and let the substance through. In short, judges were to have discretion to do what was right. While common law and Field-like procedural thought died with the movement, equity lived on through the Federal Rules. The courts continue to live with the chaotic results of this uncontrolled and uncontrolling procedural system.

On August 29, 1906, Roscoe Pound, the thirty-six year-old Dean of the Nebraska College of Law, addressed the twenty-ninth annual meeting of the American Bar Association. [FN203] His reputation at the time as a botanist, lawyer, and legal educator was primarily local to Nebraska. [FN204] Like his father, Pound was active in Republican politics and in the local bar association. Also like his father, he had served as a judge. [FN205] A major theme of Pound's procedural work was the importance of enhancing respect for, and power in, the judiciary. [FN206] In 1897, Pound wrote an article on why judges should wear robes. [FN207] He urged that "[e]verything which tends to restore the judiciary to its true position, which tends even in slight manner to give to it in the eyes of the public those long lost attributes of dignity, authority, and eminence, *945 which belong of right to the common law judges, is opportune and welcome." [FN208]

it was important to "fight" for the historic powers of the equity judge. [FN220] As a result of Pound's controversial 1906 speech, the ABA established a Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation. Pound was appointed to what became known as the Committee of Fifteen. [FN221] The Committee's reports incorporated principles of administration and procedure that Pound developed. [FN222] Predictably, *947 Pound's approach was based in equity.

Pound asserted that procedural rules intended solely to provide for "the orderly dispatch of business, saving of time and maintenance of the dignity of tribunals," as opposed to rules granting parties an opportunity to state their case, should be enforced only within the sound discretion of the court. [FN223] The common law and Field Code used pleadings as a vehicle to help organize the facts and the law, and to facilitate the application of the latter to the former. For Pound, "the sole office of pleadings should be to give notice to the respective parties of the claims, defenses and cross-demands asserted by their adversaries." [FN224] In formulating his joinder principles, Pound explicitly turned to equity: "The equitable principle of complete disposition of the entire controversy between the parties should be extended to its full extent and applied to every type of proceeding." [FN225]

Pound's views that procedure should be made less technical and that judges should be given more latitude accompanied his view that the prevailing notion of substantive law, with formal categories and deduction of results from broad legal principles, did not make sense for modern society. In this period of his writing, Pound suggested that law was in a cycle of development that required new solutions, which, in turn, necessitated overturning formalized rules. [FN226] He urged that both law and legal decisions should be the outcome of the weighing of social policies, rather than the mechanical application of rules. [FN227] This thinking supported Pound's more expansive view of judicial power and explained his support for adopting procedural principles of equity.

In his Popular Dissatisfaction address, Pound cautioned on the difficulty of achieving a balance between technicality and definition on the one hand, and generality and discretion on the other. [FN228] He suggested less definition and more judicial discretion. [FN229] He later asserted *948 that "the controlling reason for a systematic and scientific adjective law, must be to insure precision, uniformity and certainty in the judicial application of substantive law." [FN230] He did not, however, explain how the procedural flexibility and judicial discretion that he favored would aid in such "precision, uniformity, and certainty." The ABA movement that followed Pound's path accepted his equity-based methods, but largely ignored his procedural goals of "precision, uniformity and certainty in the judicial application of substantive law."

else obiter dictum, and, of equal importance, it confines the testimony which may be introduced. [FN238]

*950 In 1911, the year his ABA resolution advocating uniform federal procedure was adopted, Shelton wrote a short article, The Relation of Judicial Procedure to Uniformity of Law. [FN239] He emphasized the need for uniform procedural rules so that decisions in like cases would be uniform. He also continued to stress the importance of controlling judges. For Shelton, procedural rules laudably

restrict and confine [the judge's] individuality, limit his personal power, and make of him the true impersonation of the blind Goddess of Justice.

. . . . . . . [T]he common law pleading of England . . . was made to stand and . . . did stand, as a barrier between the Prince and the citizen and as a guarantor of decisions reflecting the true law, the expressed spirit of the times and not the pleasure of the Prince or the Judge.

. . . . . . . [L]aw is meaningless when enforced without regard to fixed rules of procedure. It is worse than meaningless when left to unfettered individual inclination. [FN240]

By 1913, however, Shelton's views regarding the judge-controlling features of procedure had changed completely. [FN241] He wrote very little about restricting and confining judicial discretion. He rather repeatedly wrote about the importance of respecting and empowering the judiciary. [FN242] He defended the Supreme Court's authority to hold state and federal statutes unconstitutional. [FN243] He stressed submission to and faith in the courts, in addition to the importance of divorcing the courts from *951 politics, getting the legislature out of making court rules, and having all judges appointed and with life tenure. [FN244]

In his 1918 book, written with a religious fervor that makes the title, "Spirit of the Court," appropriate, procedure was no longer primarily presented as a means of controlling judges or of confining and focusing litigation. Now, Shelton argued through the use of several metaphors that procedure should step aside from substantive law. Procedure should be a clean pipe, an unclogged artery, a clear viaduct, or a bridge. [FN245]

During the 1920's, Shelton urged that procedural rules should be flexible and that it is the tying of judges' hands that leads to "uncertainty, delay, and expense." [FN246] In 1928, he complained that procedure had become a "fetish," [FN247] and a year later asked rhetorically, "Is it the function of the courts to administer justice or to follow technicalities . . . There is no possible excuse for the defeat of justice through upholding a simple court-made rule of procedure, however binding upon the court a statutory rule may have been . . . . " [FN248] In 1931, the year of his death, he praised "[t]he English judge [who] brushes aside senseless technicalities in the same spirit he would a house fly." [FN249]

[FN263] Shelton and other uniform federal rule enthusiasts *954 repeatedly pointed to the Equity Rules of 1912 as proof that procedure could be made simple and less technical, and that the Supreme Court was an appropriate body to do the drafting, with the help of expert lawyer and judge consultants. [FN264]

The continuing movement in New York against the Throop Code, a code ridiculed for its technicality, specificity, and lack of flexibility, pushed in the same direction as the new Equity Rules and Pound's thought. A 1912 Report of the New York State Board of Statutory Consolidation, called "Simplification of Practice," relied heavily upon Pound's procedural principles [FN265] that had been attached to Committee of Fifteen Reports. [FN266] Following Pound, the Report recommended (i) that judges be permitted to disregard procedural mistakes that did not affect substantial rights, (ii) that there be broad joinder of parties and issues so "that there should be afforded an opportunity for a complete disposition of the entire controversy," and (iii) that judges be given broad latitude to grant summary judgments, directed verdicts, judgments n.o.v., and new trials. [FN267] Proponents of the Enabling Act, including Shelton and his Committee on Uniform Judicial Procedure, cited approvingly to the Board of Statutory Consolidation's proposals, [FN268] and reiterated much of the Throop Code criticism.

*955 The highly charged political climate in the decade before the first World War, particularly concerning proposals for recall of judges, prohibition of labor injunctions, and prohibition of judicial comments on the evidence to juries, deeply influenced Enabling Act proponents. Again, 1912 represents the watershed. Woodrow Wilson and Theodore Roosevelt, running as a progressive candidate, each outpolled Taft, a hero of Shelton's. [FN269] Eugene Debs, the nominee of the Socialist National Party, garnered almost 900,000 votes. [FN270] The results, as well as the campaigns, terrified some conservatives. Roosevelt had portrayed the federal judiciary as a major obstacle to progress, and urged judicial recall and other restraints on the federal judiciary. [FN271] Individuals like Taft and Shelton, who strongly admired the judiciary, saw the courts as the protector of property and republican values, a last moat shielding the country from the wild progressives, the unions, and the masses. [FN272] Shelton's post-1912 work often displays a sense of panic and warns about the need to protect the judiciary. [FN273] Shelton, Taft, Chief Justice Winslow of the Supreme Court of Wisconsin, Henry D. Clayton, who drafted and had introduced the first ABA Enabling Act, and others explicitly advocated simplified procedure as a means of improving democracy in order to reduce the cause for bolshevik and other radical attacks on the courts. [FN274]

*956 The movement for uniform federal procedure was thus a means of deflecting attention from the conservative positions courts had taken on socioeconomic issues. Making courts and their procedure more efficient would Virtually every intellectual, cultural, and political signpost pointed to equity. Supporters of the Enabling Act normally premised their position on the failure of the Conformity Act. As the argument went, the Conformity Act made it difficult to practice in federal court for one did not know what procedural law would apply: state, federal, or judge-*958 made. [FN284] This difficulty was offered as an example of how procedure interfered with the application of substantive law. Proponents of the Enabling Act went directly from the "failure of the Conformity Act" argument to the contention that procedural disputes generally consumed too much litigation time. [FN285] They concluded by expressing the need for simplified rules. In support of these points, the proponents cited statistics to show that more cases were being decided in both state and federal courts on procedural than substantive grounds. [FN286]

This procedural simplicity argument was repeated throughout the Enabling Act's journey to adoption. The following 1926 letter to Walsh from an Illinois Federal District Court judge is representative: "We will all admit, I think, that questions of practice and procedure, not affecting the merits of the question, too often prevent success in a meritorious case. Technicalities of the common law pleading result always in delay and often in miscarriage of justice." [FN287] Learned Hand wrote Walsh in the same year indicating that he favored the Enabling Act because in New York "the practise is as barbarous as could well be designed" and that despite the New York legislature's reform efforts, the system still reduces "the practise of law to a tangle of rigid provisions." [FN288] Hand concluded: "The truth is that judicial procedure is like *959 history and that nation is happiest which has the least. The notion is at present thoroughly discredited I think in all responsible circles that procedure should be laid down in detail." [FN289]

The pro-simplicity theme had many aspects, all of which pointed away from common law thinking. Shelton suggested in the 1922 House Judiciary Committee hearings that

this is one of the things that is making Bolshevists in this country; that frequently, a sensible man, a business man, a practical business man, sits in the courtroom and sees his case thrown out on a technicality that he can not understand, and does not know why it is necessary . . . . [FN290]

A related theme was that the bar must rid itself of technical lawyers-- "procedural sharps" as Shelton called them--who gave the profession a bad name by taking advantage of procedural loop-holes. [FN291] There was an almost quaint attraction to being modern. The new judicial procedure was to be scientific, flexible, and simple. [FN292] Commerce and business believed in such simplicity. Businessmen got things done by cutting through technicality, and by not letting rigid, antiquated rules get in their way. Procedure should have been equally straightforward. [FN293] Both progressives and conservatives were attracted to Frederick Winslow Taylor's thoughts about scientific justification, Clark has been called the "prime instigator and architect of the rules of federal civil procedure." [FN304] Unlike men such as Shelton and Taft, whose zealousness to have the Enabling Act passed may have made them circumspect about describing the procedure they had in mind, Clark was eager to describe exactly what type of rules he contemplated. In Clark, one finds personality traits, experience, and--later on--political leanings, all supporting his open espousal of equity procedure. His times and his associates pushed in the same direction.

*962 Starting in 1923, during his fourth year on the Yale Law School Faculty, Clark began a series of articles on procedural topics. [FN305] Many of the articles later became incorporated in his 1928 treatise, Handbook on the Law of Code Pleading. [FN306] One theme pervades these works: procedural technicality stands in the way of reaching the merits, and of applying substantive law. [FN307] Throughout his life, Clark kept repeating that procedure should be subservient to substance, a means to an end, the "handmaid and not the mistress" to justice. [FN308] Clark, a brilliant mathematician in college and a straightforward, noncomplicated writer and thinker, was distressed by what he considered arbitrary procedural lines and categories; he wanted the law applied to the situation without procedural interference. [FN309]

Clark purported to call upon history in order to make his point. The Chancellor's discretion to issue writs preceded the common law's attempt to organize writs and procedure in a formal way. Common law procedure, therefore, can easily be viewed as a noble effort to rescue equity from disorganization and chaos. Clark viewed equity, however, *963 as rescuing common law from technicality and rigidity. [FN310] Clark, following Pound, characterized the common law as "arbitrary" and "highly technical." [FN311] For Clark, "the rise of the courts of equity served . . . to postpone the necessity of reform for some time." [FN312] He explained that

equity procedure was much more flexible in many respects, particularly as to joinder of parties and of actions, and as to the form and kind of judgement which might be rendered. . . . [E]quity procedure itself was designed as a flexible system to meet varying claims and hence was a kind of appeal to those who were attempting to change the harshness and inflexibility of the common law. [FN313]

As Clark understood it, however, even equity was best viewed as too rigid to "fulfill the needs of a growing and developing system of law." [FN314] Equity had for centuries been seen as too flexible and too costly; equity's attempt to include all parties and all issues made dispute resolution unmanageable. [FN315] These are not the aspects of equity Clark describes.

Clark's portrayal of the Field Code and its problems also support his equity- prone view of procedure. He endorsed Field's merger of law and equity, as well use the courts for purposes of delay. [FN329] His opinion of plaintiffs' counsel was hardly more positive; he found that they often made "grossly excessive attachments" and used jury trials to elicit sympathy. [FN330] He participated in a 1932 report on "Compensation for Automobile Accidents" that castigated the practices of some plaintiff tort lawyers. [FN331]

Clark issued a preliminary report on his Civil Cases Study of the Federal Courts in May 1934, just before the Enabling Act became effective. Clark found, as he had previously, that plaintiffs usually win when cases go to trial, that few cases reach trial, and that recoveries were surprisingly small. [FN332] In view of the small amounts, a simpler, less technical procedural system made sense to Clark. He found that many federal claims in federal courts, notably on the equity docket, were more complicated than the tort and contract claims under diversity jurisdiction; he thought that the federal claims might require special litigation techniques. Clark concluded that "to a large extent . . . [the federal] courts may now be considered as the courts for adjudicating *966 various claims involving the central government. This tendency is certain to increase with all the new and various forms of federal legislation recently passed." [FN333] Given the growth of complex federal cases, a proceduralist would naturally think of the flexibility of equity rules.

Clark felt himself to be part of an exciting new legal, political, and procedural world. Breaking down old formalisms, facilitating the government's regulatory role, exploring new roles for legal professionals, and helping to create a less technical civil procedure were part of the same outlook. The legal realists were urging elasticity and contingency of language and concepts. [FN334] Clark was impressed with the observation that one could not define what was a fact, evidence, or ultimate fact in a scientific way, and that such terms were best seen as a continuum, without logical cutoff points. [FN335] The deductive reasoning of the common law was flawed, and set, defined legal categories were suspect. Balancing tests replaced attempts at categorization and definition. [FN336]

As early as 1928, Clark began to look at law and litigation with the broader focus of an emerging social reformer. Clark perceived litigation as designed for something more than the purpose of merely resolving a dispute between two parties. In his first article describing his empirical research, Clark wrote: "One of the most important recent developments in the field of the law is the greater emphasis now being placed upon the effect of legal rules as instruments of social control of much wider import than merely as determinants of narrow disputes between individual litigants." [FN337] Unlike Field, who saw law as a means of controlling government, Clark came to perceive the need for government to play a more active role in society. [FN338]

*967 In 1933, Clark was President of the Association of American initially sponsored the Enabling Act coalesced with the ideas of liberals who later participated in its enactment and implementation. This is most notably true with respect to expanding judicial power, trusting experts, their lack of faith in juries, and their overall attraction to equity practice. [FN354]

Homer Cummings, Franklin Delano Roosevelt's first Attorney General, was perfectly typecast to resubmit the Enabling Act to Congress in 1934, after conservatives had failed to accomplish its passage for twenty years. [FN355] This Democratic liberal chief legal spokesman for New Deal legislation was, like Taft and Hughes, experienced with the big case. His firm in Connecticut represented major banks, manufacturing corporations, and utilities. [FN356] When he sponsored the Act in 1934, he echoed many of Clark's themes: now was the time for lawyers to give up their technical rules and to aid the government in drafting and implementing new legislation to solve national problems. [FN357]

*970 In 1934, the Enabling Act was passed with only modest resistance. [FN358] When it appeared that the Supreme Court might not merge law and equity, as the Enabling Act permitted, Clark wrote a two-part article with William Moore, strongly urging merger and insisting that the Federal Equity Rules of 1912 should be the basis for the merged system. [FN359] Part I of their Article ends as follows: "As we shall see, the Federal Equity Rules of 1912, in themselves an embodiment of this best practice, furnish the substantial model for the new Federal procedure of the future." [FN360] Part II describes how equity rules relating to pleading, joinder, and other procedural issues best accommodate a merged system. [FN361] Clark and Moore concluded by applauding "flexible rules as to pleading and parties, leaving much to the discretion of the trial court," and by noting the "very close to unanimity of opinion on many, perhaps most of the objectives to be sought in these points of detail." [FN362]

Clark sent copies of the article to dozens of judges, to legal scholars, and to lawyers. [FN363] "In this article," he explained, "we urge that the union of law and equity in the federal courts has now gone so far that the federal equity rules ought to provide the basis for a unified procedure under the proposed new system." [FN364] Edgar Tolman had initially *971 been appointed to be in charge of drafting new rules as a special assistant to the Attorney General, and later became Secretary of the Supreme Court Advisory Committee. [FN365] A full six months before the Advisory Committee was appointed, Clark wrote Tolman that "a really unified procedure would not involve repudiation of the present satisfactory equity rules, but merely an expansion of them to all actions." [FN366] Many of Clark's correspondents, including future members of the Advisory Committee, agreed with him. [FN367] Even Tolman, who did not initially favor utilization of the merger provision of the Enabling Act, apparently looked to equity for the rules to govern law cases. [FN368]

During the drafting process, the Pound-Clark vision prevailed. As we will see in Part IV, there were occasional suggestions, and even some rules, that looked in a more confining direction. But the major theme was that procedure should step aside and not interfere with substance. The rules became law in 1938 by congressional inaction. [FN380]

For Clark, procedural history was a sort of morality play in which the demon, procedural technicality, keeps trying to thwart a regal substantive law administered by regal judges. Clark would use equity procedure to conquer the demon where Field had failed. [FN381] Removing technicalities *974 would also make the legal profession more competitive, and would open up new fields for lawyers and courts. The New Deal required courts to resolve new types of complex cases, for which procedural lines would be an outdated impediment. Other cases were so simple they did not need procedural lines and steps. If one eliminated definitional lines and procedural steps, so the argument went, one could have simple general rules for all cases. The rules would be the same for all federal courts, and would become the same for the state courts as well: because the rules would be so simple and flexible, they would serve as a model. Clark boasted that "the only fundamental change effected by the Federal Rules is that there will no longer be any fundamentals in procedure." [FN382] In the sense of formal procedure designed to define rights and confine disputes, Clark was accurate. The Federal Rules were the antithesis of the common law and the Field Code. Through the Federal Rules, equity had swallowed common law.

In 1976, seventy years after Pound's publication of Causes of Popular Dissatisfaction with the Administration of Justice and thirty-eight years after the Federal Rules took effect, leaders of the legal profession met at the Pound Conference to discuss contemporary problems in American litigation. [FN383] Without realizing it, many of the participants expressed concerns that centered around the likely effects of a procedural system dominated by equity. There were many complaints about costs and delay; rebukes such as these, though, might have been historically issued from critics of either common law or equity procedure. When one looks at the disgruntlement over unwieldy cases, uncontrolled discovery, unrestrained attorney latitude, and judicial discretion, however, the pattern is clear. [FN384] These are not complaints about the rigor and inflexibility associated with the common law, but the opposite. The symptoms sound like what one would expect from an all-equity procedural system. The praise for modern litigation as a creator of new rights essential for a humane society is also consonant with this diagnosis. [FN385]

This state of affairs calls for an examination of the methods that have been attempted or considered in order to reinject some common law limitations into this all-equity system. Are there approaches that may help balance equity's creativity with the common law's historic *975 quest to deliver predefined required a statement of "facts [(or as an alternative) acts, omissions, and occurrences] without detail, upon which the claims of the pleader are based, omitting mere statements of evidence." [FN389] During the deliberations, one member proposed adoption of the Equity Rule requiring the statement of "ultimate facts," and said he thought that the proposed pleading rules were "confusing." Clark retorted that his "heart is a little wrung," for "we are erasing difficulties" and every change "is in the direction of flexibility." [FN390] Former Senator George Wharton Pepper captured the dilemma: "You either state things according to their legal effect, or you state evidence. We say you shall not state them according to their legal effect, and you shall not state the evidence, which leaves zero." [FN391] The language ultimately adopted of claim entitling relief avoided the distrusted "facts" and "cause of action" language. As Sunderland later pointed out, however, the drafters could avoid the words but not the concepts. [FN392]

*977 Some of the pleading problems raised by the Rules adopted might have been alleviated by having different requirements for different types of cases. Throughout the deliberations, members suggested differences among states, among types of cases, and between law and equity that might have called for different pleading as well as other requirements. Not one to compromise his reform vision, Clark insisted that the concepts of uniformity and simplicity, and the decision to merge law and equity, usually dictated the same rules for all cases. [FN393]

Another rejected proposal related to lawyer verification. David Dudley Field and the other Code Commissioners had placed faith in their verification requirement in order to inhibit frivolous claims and defenses and to help narrow the issues through pleadings. [FN394] Clark's first draft made the lawyer's signature on pleadings a certificate "that to the best of his knowledge, information, and belief, the matters alleged or the denials made therein are true." [FN395] Edmund Morgan, an evidence expert from Harvard, said: "I do not think it is possible to talk about pleading truthfully," because "[n]obody knows what the truth is . . . in advance." [FN396] Others thought the proposal that "[a]verments and denials shall be stated truthfully" was "naive." [FN397] Ultimately, the verification requirement was eliminated. [FN398]

Proposals to limit discovery were similarly rejected. During the deliberations, members, though, expressed considerable concern about *978 their own permissive discovery provisions. First, the possibility of replacing in-court testimony with discovery and documents recalled the problems of unwieldy documentary evidence under the old equity system. [FN399] One suggestion to harness discovery obligated the party sending out interrogatories to pay "a fee of two dollars plus one dollar for every question in excess of twenty." [FN400] The greatest fear, however, as particularly expressed by confident that aggressive, creative lawyers--being paid by the hour or anticipating a contingency fee--would not fully utilize the new, largely unbounded procedural playground.

There were also more specific criticisms. In 1936, Judge Edward Finch of the New York Court of Appeals criticized the discovery provisions, warning that the proposed rules would "increase so-called speculative litigation or litigation based on suspicion rather than facts, with the hope that such fishing may reveal a good cause of action as alleged or otherwise . . . . " [FN413] Moreover the Rules gave so many tools to the person asserting a claim "that it will be cheaper and more to the self interest of the defendant to settle for less than the cost to resist." [FN414] Mitchell optimistically replied: "It may be that in large metropolitan areas like New York where the conditions are admittedly bad and many dishonest actions are brought in the courts the rules relating to discovery and examination before trial offer opportunities to lawyers of low ethical standards." [FN415] In the rest of the country, though, Mitchell thought that "the rules relating to these subjects are in line with modern enlightened thought on the subject and will not be" abused. [FN416]

In addition to the suggestions that discovery would be abused, there were also clues that summary judgment would not dispose of many issues or lawsuits. Clark's empirical data had revealed that motions for summary judgement were not used very often. [FN417] One member of the Advisory Committee thought that summary judgment will be "rightfully granted in very few cases if the party has a very good lawyer." [FN418] In 1938, a St. Louis lawyer, perhaps a bit facetiously, illustrated at a bar meeting the weakness of the new summary judgment rule. He proclaimed that, "I have faith enough in the resourcefulness of Missouri lawyers to believe that they will not often get unhorsed by *981 this rule before the battle is well begun, for want of a simple little affidavit." [FN419] He assured the other lawyers that "a nice, clean, plausible affidavit" would solve the problem of how "to bring a doubtful lawsuit, or file a general denial to a probably well-founded lawsuit, and hope and work for a compromise as time passes." [FN420] The multitude of issues permitted under the broad joinder provisions make it very difficult to eliminate dispute over every material fact before trial. Moreover, the same rhetoric of federal rule supporters about not letting procedure stop cases from getting to the merits would dissuade judges from granting summary judgment or imposing strong controls through pretrial conference. [FN421]

The last device, the pretrial conference, proved equally ineffective at limiting disputes. It is perhaps inevitable that if the parties are given great leeway in pleading, joinder, remedies sought, and discovery, the judge, or a master or magistrate, will have to intervene to limit and confine the litigation. [FN422] One is reminded of the subtitle that appeared in the favorable 1914 House Judiciary Committee report on the Enabling Act: "Strong hereby abolished,' this decree if obeyed would have meant anarchy . . . . Equity without common law would have been a castle in the air, an impossibility." [FN431]

Soon after the Federal Rules went into effect there were signs that both lawyers and judges felt a need to limit the system that the drafters had created. Two lines of cases developed and remain, one more liberal than the other, about the degree of specificity that is required under the Rules in initial pleadings. [FN432] There was an early movement, fought off by Clark and others, to replace the federal pleading rule with a more stringent one. [FN433] Defendants' regular use of motions for more definite statements and for bills of particulars in order to pin down the plaintiff's story resulted in a rule amendment to curtail such motions. [FN434] *984 Some courts tried (and continue to try) to develop more demanding pleading requirements for specific types of cases, such as antitrust and civil rights. [FN435] Some judges, to Clark's outrage, soon tried to use pretrial conference orders to achieve more specificity in the recitation of claims and defenses. [FN436] Many district courts started using local rules, such as those limiting the number of interrogatories, to attempt to control the wide-open nature of Federal Rule discovery. [FN437]

Concern about the failings of, and abuses under, the Federal Rules system has heightened in recent years. A 1980 amendment adding discovery conferences, as well as the 1983 amendments relating to pretrial conference and the attorney's certification on motions, pleadings, and discovery, represent conscious attempts to pull back from the lenient policies that lay behind the Federal Rules. [FN438] Recent proposals to amend Rule 68 in order to shift attorneys' fees to the losing side reveal a similar desire to place counter-incentives to the amount and scope of litigation. [FN439]

*985 Although these and other developments reveal an awareness of some of the problems inherent in an all-equity system, they do not sufficiently address the underlying issue: how to achieve a reasonable measure of constancy and predictability in law application. Amended Rule 11, making the attorney's signature a certificate that the pleading is "well grounded in fact" and "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," illustrates the point. [FN440] This rule seems to look backward to the Field Code's pleading requirement of "facts constituting a cause of action." [FN441] But the pleading rules themselves remain untouched, and the lawyer is not given concrete guidance about how much she must know or plead in advance to bring a specific kind of case. The lawyer and client are told that they may be fined after the fact for noncompliance, but they are not told for any particular type of case what appropriate lawyering requires.

A more logical approach to pleading and signature requirements would require estoppel doctrine has been expanded to prevent subsequent cases or to preclude the retrial of issues. [FN452] But the most astonishing development is the current emphasis on case management, settlement, and methods of alternative dispute resolution. [FN453]

I lump the three phenomena together for they frequently have common tendencies. All three often draw on efficiency goals and the time and costs of litigation in order to move away from focusing on the trial and towards something else, whether mediation, conciliation, or the ultimate goal of settlement. [FN454] Some judges now feel that they have failed if they are forced to hear a case at trial. [FN455]

There is a relationship between these three phenomena and the *988 movement to equity procedure. To see the connection one must reconsider how adjudication historically developed. The major purpose of courts was not just to resolve disputes. They could have done that with the ancient trial by ordeal or by flipping coins. As Lon Fuller and others have taught us, it is resolving disputes through reasoned and principled deliberation, based on rules, that is at the heart of adjudication. [FN456] This is what should give courts and judges their legitimacy. In large measure it is the law-applying, definitional, and predictive aspects of law that justify law as an enterprise. Justice Harlan makes the point:

Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly predictable manner. Without such a "legal system," social organization and cohesion are virtually impossible . . . . Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the "state of nature." [FN457]

At common law, procedure joined with substance in order to achieve law application and rights vindication. As Pound suggested, form is the essence of procedure. [FN458] A procedural system based on equity, however, no longer provides that form, and consequently no longer provides the definition, confinement, and focus that aid in law application and rights vindication. A goal of mediation and conciliation, and perhaps to a lesser extent case management, is to avoid judicial application of the law, or at least formal application of the law. [FN459] Settlement *989 is the most frequently stated goal. Case management and alternative dispute resolution enthusiasts have largely given up on trying to bring cases to the merits, that is, on getting law applied or rights vindicated. [FN460] Perhaps it should not be a surprise that the equity-dominated system leads to a solution where the highest goal is for courts not to apply law to facts. When one seeks human perfection amidst so many parties, so many issues and so much discretion, perhaps it judge is obligated to enforce the law as it has been pronounced by the community through the legislature.

To their credit, the case management and alternative dispute resolution movements have forced us to focus on what we should expect from civil adjudication and dispute resolution generally. [FN468] Moreover, they have called attention to the fact that there exist substantially different types of cases that may warrant different processes. The discussion of the multi-doored courthouse, for instance, with different types of dispute resolvers and facilitators, is healthy, so long as we remember why the court was there to begin with. [FN469] Case management has also forced us to think about whether different cases should be managed differently. The comments to amended Federal Rule 16, for example, suggest that "[t]he district courts undoubtedly will develop several prototype scheduling orders for different types of cases." [FN470] Some of the state courts are experimenting with different tracks for different case types. [FN471] These developments may lead us away from trans- substantive procedure and back to the fundamental question of how procedure will help the application of substantive law in those cases where it is important that law be applied or that rights be vindicated.

We need not look far for an approach to civil procedure that will help redress the imbalances resulting from equity's devouring of common law. Pound started his 1909 paper on "Some Principles of Procedural Reform" by asserting that "the controlling reason for a systematic and scientific adjective law must be to insure precision, uniformity and certainty in the judicial application of substantive law." [FN472] He added, "form is, if I may say so, the substance of adjective law." [FN473] As has been noted, however, Pound then proceeded to propose a formless equity system that would attempt to avoid the technicalities and rigor of procedural rules. He was followed by Clark, who made an art form of procedural formlessness.

The alternative to Clark's and Pound's wholesale acceptance of equity as a basis for procedural rules is a reconsideration of some of the theoretical underpinnings of the Federal Rules. The remainder of this section explores three possible starting points for such an effort: whether the rules should reflect a greater sensitivity for form, whether a procedural system should rely so heavily on court rulemaking as opposed to statutory law, and whether empowering judges rather than trusting juries should be a primary feature of a procedural system. This summary does not propose specific responses to these concerns. It does suggest, however, that arguments from the "losing side" in the uniform rules debate could provide guidance to those seeking to rescue the Rules of Procedure from equity's chaos.

Some who opposed the brave new procedural world of equity divorced from the the pleader and his client, that they cease to serve any useful purpose." [FN483] McCaskill insisted that the comparisons to equity did not make sense, for equity was different. For example, equity suits implicitly involved depositions taken out of court, broad discovery, and a skilled judge. There were also historic limitations concerning access to equity courts. [FN484] "During the trial no panel of jurors was being detained from their usual pursuits. Time was not, relatively speaking, an important factor." [FN485] "Sooner or later we will come to earth with the realization that the individual right has very definite limitations. In the chancery alone do we find one right having a harem of remedies." [FN486]

Connor Hall, a West Virginia lawyer who aggressively and articulately opposed the Enabling Act, argued that its proponents had not thought through how one actually accomplishes getting law applied in a case. Although he acknowledged that "[p]ractice is a mere tool," he urged that nonetheless "there must be a way to bring causes to the attention of the court; to adduce proof; to bear argument; to conclude the cause; to give the proper judgment; to take the proper steps for enforcing it . . . . " [FN487] Other able reformers, whom he labelled "geniuses and learned sages," had tried to solve the "same great problem of enforcing substantive rights and of adopting reasonable rules for the ascertainment of truth." He continued:

Why should we, of the present . . . regard their labors as futile, throw their work in the discard and begin all over again . . . The Majority Report of the Judiciary Committee of the Senate avers that the centaur "shall embrace all the merits and none of the vices of 'common law' and 'code' pleading, and that it is neither." Truly the millennium is at *995 hand . . . . " [FN488]

To Hall, it seemed that the proponents of the Enabling Act ignored the real world.

The attempt to obtain entire simplicity and lack of technicality through rules is a will-o'-the-wisp . . . . If a group of mariners tired of studying their complicated charts should decide to throw them away and adopt more simple maps, they would not thereby do away with the air and water currents through which they must pass, or the icebergs or the reefs in their course. [FN489]

Hall was right. Substantive law does not just apply itself. Its application must be aided by procedure. Historically, pleading had helped organize the case so it could be understood in terms of what legal consequences should flow from what circumstances. The idea of causes of action and elements helped lawyers and judges decide what was relevant. It is fanciful to pretend that if the law is not contained and focused it can still be applied in a manageable, replicable manner. As Pound said, "form . . . is . . . the substance of adjective law." [FN490]

because the Supreme Court would be the final arbiter of the rules. If it saw faults in the Rules, moreover, the Court could *997 change them. The supporters also felt that somehow rules do not have to be followed, although statutes do. [FN497] Walsh pressed Shelton vigorously on these arguments during Senate subcommittee hearings, and never received a plausible answer. [FN498] For good reason, Walsh did not understand how anyone could draft a full set of procedural rules that would not cause substantial arguments among competing lawyers and require on-going interpretation. Nor did he understand how the Supreme Court could decide every procedural dispute, or how the Court could improve procedure better or faster than the legislature. Walsh implied that the Enabling Act proponents were inconsistent, because sometimes they complained that legislatures were too quick to change procedural rules, and now they were suggesting that the legislature did not act swiftly enough. Moreover, he could not understand why court rules would be less binding than statutes. [FN499] The nonbinding rule argument was especially elusive because the Enabling Act had a provision that made federal procedural rules supersede inconsistent congressional statutes. [FN500]

Walsh thought that "[t]he idea that troublesome questions of practice can be eliminated or even sensibly diminished by the plan proposed is utterly chimerical." [FN501] Arguments based on the simplicity of equity procedure did not impress him. He suggested that although the equity rules might sound simple, they were based on centuries of experience and required many volumes of works on both English and American practice to understand and to apply. He also asserted that the complexity of working under equity rules required a specialized equity bar. [FN502] Hence, Walsh could not understand how the new rules would in fact make litigation faster or more efficient. He insisted that the comparisons to simplified English practice were not persuasive, for one must look at what other elements in the legal culture might cause these results. [FN503] After a visit to England, Walsh was convinced that the more restrained habits of the English bar and the attitude of English judges, *998 trained to act swiftly and deliver opinions from the bench, were more important to speed and efficiency than procedural rules. [FN504]

The son of Irish immigrants, Walsh did not take kindly to persistent ABA emphasis on the glories of English judges and procedure. [FN505] Walsh was an egalitarian who did not want to enhance the power of judges--he trusted juries. As a leading progressive Democrat and a brilliant constitutional lawyer, he argued and wrote passionately for the confirmation of Brandeis to the Supreme Court, for judicial recall, against judicial control of juries, and for enhancing jury power in labor disputes. [FN506] His arguments against the Enabling Act not only included his repudiation of the simplicity theme; he did not see why a country so large as ours (Great Britain, he loved to point out, had "scarcely half" the area of his state, Montana) should have uniform rules, defend their implicit attack on the jury. One might have expected the argument that judges with more power under uniform rules would achieve more uniform results, that like cases will be decided more alike because judges are trained in law and less emotional than juries. It was Shelton, however, before Pound talked him out of it, who looked to procedure to help ensure that judges try to apply law in a more constant, nondiscretionary manner. [FN514] This was not, however, the argument of Enabling Act/Federal Rules advocates of the likes of Pound or Clark. It would have been difficult for them to propose an equity system with expansiveness and flexibility, while arguing seriously that their new procedure would help improve predictability or uniformity of result. [FN515]

The major change in American civil procedure over the centuries is that equity procedures have swallowed those of common law. Common law procedure represented, among other things, an attempt to confine and define disputes so that the law could be applied to relatively few issues by lay juries. Field and the Code Commissioners, in the midnineteenth century, moved in the direction of equity practice, but continually emphasized the restrictions of procedure. Judicial discretion was an anathema.

The movement toward equity procedures reached fruition in the Federal Rules of Civil Procedure and structural change cases that take advantage of a procedural mentality based in equity. The Field Code was born in the political, social, and economic climates of the nineteenth century. It was grounded first in liberalism and then in laissez faire economics and Social Darwinism. Similarly, the Federal Rules represented a conservative impulse to empower judges as a bulwark against progressive attacks, which was joined later by a legal realist, anti-formalist, pro-regulatory, New Deal mentality. Commentators as divergent as Roscoe Pound, Thomas Shelton, and Charles Clark had overlapping procedural agendas and visions.

The idea of law application and rights vindication lost prominence for a number of reasons. Legal formalism and procedures necessary for *1001 rigorous law application obtained a bad name, particularly because the federal courts from about 1890 to 1935 used a formalized view of law to thwart social change. The legal realists raised doubts whether facts can ever be found, or whether law can ever be applied in a predictable manner. Much of the attack was against a formalistic, oracular view of law that allegedly used deductive logic to decide who had what rights and whether the government could constitutionally intervene. Legal realism, however, became skepticism about any type of legal categories and definitions. The answer of proceduralists such as Pound and Clark was to rely on expertise and judicial discretion. Give judges all the facts and a litigation package that includes every possible theory and Harvard University. An earlier draft of this Article was delivered as a paper at the May 1986 annual meeting of the Law and Society Association in Chicago, Illinois. I thank the other panelists, Stephen Burbank, William Forbath, and Elizabeth Schneider for their advice and criticism. I presented some of the themes in this Article at the May 1982 Educational Conference of the Justices of the Superior Court Department of the Commonwealth of Massachusetts. Portions of the Article will be part of a book I am writing on the assumptions and historical background of the Federal Rules of Civil Procedure. Many students, colleagues, friends, and manuscript room librarians have helped me with my on- going project. I am grateful to all of them, and particularly to Louise Bowditch, Judith Brown, Stephen Burbank, George Dargo, Daniel Givelber, Paula Goulden, Miriam Horwitz, Justice Benjamin Kaplan, Karl Klare, Michael Meltsner, David Phillips, Tom Rapp, Judith Resnik, Daniel Schaffer, David Shapiro, Fred Solomon, and Berton Subrin, who have aided, encouraged and prodded me along the way. Notwithstanding so much superb guidance, errors surely remain and they are mine.

FN1 No. 73-415, 48 Stat 1064. For a discussion of the battle to enact the Federal Rules, see C. WRIGHT, LAW OF FEDERAL COURTS 402, 403 (4th ed. 1983); 4 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1003 (1969); Chandler, Some Major Advances in the Federal Judicial System 1922-1947, 31 F.R.D. 307, 479-85 (1963); Supreme Court Adopts Rules for Civil Procedure in 24 A.B.A. J. 97, 99.

FN2 See FED. R. CIV. P. 1-86.

FN3 See 4 C. WRIGHT & A. MILLER, supra note 1, § 1008.

FN4 See C. WRIGHT, supra note 1, at 406.

FN5 See, e.g., J. COUND, J. FRIEDENTHAL & A. MILLER, CIVIL PROCEDURE CASES AND MATERIALS at xviii (3d ed. 1980); R. FIELD, B. KAPLAN & K. CLERMONT, MATERIALS FOR A BASIC COURSE IN CIVIL PROCEDURE at xix (5th ed. 1984) (reprinting Preface to First Edition (1953)); D. LOUISELL & G. HAZARD, JR., CASES AND MATERIALS ON PLEADING AND PROCEDURE at xix (reprinting Preface to First Edition) (4th ed. 1979); A. SCOTT & R. KENT, CASES AND OTHER MATERIALS ON CIVIL PROCEDURE 3 (1967) (Scott & Simpson rev. ed. 1950).

FN6 See J. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE (1977); Bok, A Flawed System, HARV. MAG., May-June 1983, at 38; Burbank, The Rules Enabling Act of 1934, 130 U. Pa. L. Rev. 1015, 1018-24 (1982). See generally THE

FN12 See, e.g., Rifkind, supra note 11, at 53-54 (explaining that the backbreaking pace of litigation, which has increased far beyond a causal relationship to the population, is in part a result of the public perception of the American judge as more than merely a lawmaker); Taylor, On the Evidence, Americans Would Rather Sue than Settle, N.Y. Times, July 5, 1981, at E8, col. 1 (noting that according to the Administrative Office of the U.S. Courts, litigation increased by 185 while the population increased by only 25 during the years 1960 to 1980). But see Galanter, Reading the Landscapes of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4, 5-11 (1983) (arguing that most allegations of litigiousness are unsupported).

FN13 See, e.g., Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031, 1036 (1975) (arguing that many of the rules created for adversarial litigation do not facilitate the truth-finding process).

FN14 See, e.g., Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494, 517-20 (1986) (arguing that the Supreme Court has not adequately addressed the issue of lack of resource parity between potential litigants in its rulemaking).

FN15 See Kirkham, supra note 7, at 212.

When notice pleading dumps into the lap of a court an enormous controversy without the slightest guide to what the court is asked to decide; when discovery--totally unlimited because no issue is framed--mulls over millions of papers, translates them to microfilm and feeds them into computers to find out if they can be shuffled into any relevance . . . we should, I think, consider whether noble experiments have gone awry.

Id.; see also Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 Yale L.J. 718, 732-33 (1975) (suggesting a reexamination of the premise underlying the Federal Rules, i.e., that procedure should be trans- substantive); Resnick, supra note 14, at 527-28 (arguing that some recent proposals for adjudicatory reform suggest dissatisfaction with a trans- substantive approach to procedure).

FN16 See, e.g., Bok, supra note 6, at 40-45 (decrying the emphasis on technical procedure and conflict); Rifkind, supra note 11, at 63 ("Many actions are instituted on the basis of a hope that discovery will reveal a claim.").

FN17 See S. GOLDBERG, E. GREEN & F. SANDER, DISPUTE RESOLUTION (1985); Galanter, The Emergence of the Judge as a Mediator in Civil Cases, 69 is the ascendancy of the Law of Actions in the infancy of the Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure . . . . ").

FN29 See F. MAITLAND, EQUITY ALSO THE FORMS OF ACTION AT COMMON LAW, TWO COURSES OF LECTURES 296-98 (A. Chaytor & W. Whittaker eds. 1920).

FN30 See id. at 318-23. "Seisin" has a meaning similar to, but different from, possession. Feudalism renders dysfunctional our concepts of "possession," "right," or "title." See S. MILSOM, supra note 24, at 103-05. Other examples of the common law attempt to integrate substantive rights and methods for their enforcement can be seen in the writs of covenant and replevin. In covenant, the requirement of a seal for proof probably improved the likelihood that only honest claims were pursued. See id. at 213. In replevin, the distrainee (the plaintiff who says that his goods were wrongfully taken) is entitled to immediate possession of the goods upon giving a "bond for the value of the chattels, conditioned on his loss of the suit and failure to return the chattels to the defendant." S. COHN, THE COMMON-LAW FOUNDATION OF CIVIL PROCEDURE 19 (1971); see F. MAITLAND, supra note 29, at 355. This, too, should discourage frivolous suits, as well as self-help. For contemporary suggestions to integrate different areas of substantive law with different procedures, see Landers, Of Legalized Blackmail and Legalized Theft: Consumer Class Actions and the Substance-Procedure Dilemma, 47 S. Cal. L. Rev. 842, 900 (1974); Sander, Varieties of Dispute Processing, in THE POUND CONFERENCE, supra note 6, at 65.

FN31 See F. JAMES, JR. & G. HAZARD, JR., CIVIL PROCEDURE 462 (3d ed. 1985) [hereinafter F. JAMES & G. HAZARD (3d)]; F. MAITLAND, supra note 29, at 298-99.

FN32 See H. LEA, SUPERSTITION AND FORCE 252, 279 (3d ed. 1878); T. PLUCKNETT, supra note 24, at 114-18; C. REMBAR, THE LAW OF THE LAND: THE EVOLUTION OF OUR LEGAL SYSTEM 186-87 (1980).

FN33 See S. MILSOM, supra note 24, at 30-32; T. PLUCKNETT, supra note 24, at 124-30.

FN34 See S. COHN, supra note 30, at 47; T. PLUCKNETT, supra note 24, at 409-10, 413-14.

FN35 See 1 J. CHITTY, TREATISE ON PLEADING 261-63 (1879); S. COHN, supra note 30, at 46-48; T. PLUCKNETT, supra note 24, at 405-15; C. REMBAR, supra note 32, at 224-28. See generally H. STEPHEN, A TREATISE ON THE PRINCIPLES OF PLEADING IN CIVIL ACTIONS: COMPRISING A SUMMARY VIEW OF THE WHOLE PROCEEDINGS IN A SUIT

FN53 See C. REMBAR, supra note 32, at 296.

FN54 See L. FRIEDMAN, A HISTORY OF AMERICAN LAW 22 (1973); F. MAITLAND, supra note 29, at 254-67; S. MILSOM, supra note 24, at 81-82; Bowen, supra note 39, at 517-18.

FN55 See T. PLUCKNETT, supra note 24, at 685-86, who wrote: "[T]he ecclesiastical chancellors were certainly not common lawyers, and it must have been a perfectly natural instinct, then as now, for a bishop when faced by a conflict between law and morals, to decide upon lines of morality rather than technical law."

FN56 See S. MILSOM, supra note 24, at 79-81. Sixteenth century theorists recognized "the appeal to the chancellor [as being] for the single [divine] justice, in circumstances in which the human [common law] machinery was going to fail." Id. at 80.

FN57 See Bowen, supra note 39, at 516, 523-31 ("[I]t was a necessary maxim of the Court of Chancery that all parties interested in the result must be parties to the suit.").

FN58 See S. MILSOM, supra note 24, at 82-83 ("It is a regular institution, but not applying rules; rather it is using its discretion to disturb their effect.").

The length of equitable proceedings was notorious. This aspect of equitable proceedings has been attributed to the court's desire to effect complete rather than merely substantial justice, as well as the self-interest of Chancery officials who profited from lengthy suits. See 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 373-74 (3rd ed. 1944).

FN59 See S. COHN, supra note 30, at 1.

FN60 See C. REMBAR, supra note 32, at 275.

FN61 For summaries of the different approaches of law and equity, see L. FRIEDMAN, supra note 54, at 21-23; F. JAMES & G. HAZARD (3rd), supra note 31, at 11-14; S. MILSOM, supra note 24, at 74-83.

FN62 See R. HUGHES, HANDBOOK OF JURISDICTION AND PROCEDURE IN UNITED STATES COURTS 418-20 (2d ed. 1913).

FN63 See F. MAITLAND, supra note 29, at 18-19.

FN64 On occasion, a new equity rule would become part of the law applied in the common law courts. See F. JAMES & G. HAZARD (3d), supra note 31, at 16; T. PLUCKNETT, supra note 24, at 689.

FN65 For examples of permissible joinder of parties and forms of action at common law, see F. JAMES & G. HAZARD (2d), supra note 50, at 452-54, 463-64. Much of the writing of the legal realists emphasized the discretion inherent in all judging and dispute resolution. See, e.g., the Chapters on "Rule- Skepticism," "Fact-Skepticism," and "The Prediction of Decisions" in W. RUMBLE, AMERICAN LEGAL REALISM: SKEPTICISM, REFORM AND THE JUDICIAL PROCESS 48-182 (1968) (examining the realist movement's revolt against classical jurisprudence). See infra note 131 (on how equity practice became complicated).

FN66 See, e.g., 1 W. HOLDSWORTH, supra note 58, at 425-28; C. REMBAR, supra note 32, at 298-303; R. WALKER AND M. WALKER, THE ENGLISH LEGAL SYSTEM 31 (3rd ed. 1972); Bowen, supra note 39, at 524-27. One commentator has noted that some of the problem in equity

no doubt, was due to a defect which equity never cured--the theory that Chancery was a one-man court, which soon came to mean that a single Chancellor To Be Taken in Exceptional Instances) (permitting oral depositions only "upon application of either party, when allowed by statute, or for good and exceptional cause . . . . ") with FED. R. CIV. P. 30(a) (Depositions Upon Oral Examination: When Depositions May be Taken); and compare FED. EQ. R. 58 (Discovery--Interrogatories--Inspection and Production of Documents--Admission of Execution or Genuineness) (limiting interrogatories to "facts and documents material to the support or defense of the cause") with FED. R. CIV. P. 26(b)(1) (General Provisions Governing Discovery: Discovery Scope and Limits in General).

FN72 They show the extensive borrowings from equity, particularly from the Federal Equity Rules of 1912, supra note 71. See, e.g., ADVISORY COMMITTEE ON RULES OF CIVIL PROCEDURE, NOTES TO THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES app. at 83, 84 table 1 (March 1938) (showing "Equity Rules to which references are made in the notes to the Federal Rules of Civil Procedure"); C. WRIGHT & A. MILLER, supra note 1 (providing a rule by rule discussion); Holtzoff, supra note 69, at 1058.

FN73 See, e.g., FED. R. CIV. P. 2 (One Form of Action), 8(a), (c), (e) (General Rules of Pleading: Claims for Relief, Affirmative Defenses, Pleading to be Concise and Direct; Consistency), 11 (Signing of Pleadings, Motions, and Other Papers; Sanctions), 15 (Amended and Supplemental Pleadings). For a comparison to previous American procedure, see infra text accompanying notes 93-97, 143-49. For a criticism of the leniency in pleading, see 38 A.B.A. J. 123, 124-25 [hereinafter McCaskill, Philosophy of Pleading].

FN74 See, e.g., FED. R. CIV. P. 13 (Counterclaim and Cross-Claim), 14 (Third-Party Practice), 15 (Amended and Supplemental Pleadings), 18 (Joinder of Claims and Remedies), 19 (Joinder of Persons Needed for Just Adjudication), 20 (Permissive Joinder of Parties), 22 (Interpleader), 23 (Class Actions), 24 (Intervention), 25 (Substitution of Parties), 42 (Consolidation; Separate Trials). For comparative code provisions, see infra text accompanying notes 150-51.

FN75 See FED. R. CIV. P. 26-37 (Depositions and Discovery). For contemporary discovery problems, see supra note 7. For comparative code provisions, see infra text accompanying notes 152-57.

FN76 One lawyer complains: "It has become increasingly clear that if one can but find him, there is a federal judge anywhere who will order nearly Ins. Co., 228 U.S. 364, 376-400 (1913). Cases such as Galloway, which stated that the practice of granting a directed verdict was approved explicitly in the Federal Rules of Civil Procedure, see 319 U.S. 389, were considered by some as making inroads on the quality of the right to a jury trial, notwithstanding the language in the Enabling Act (currently codified at 28 U.S.C. § 2072 (1982)) that the rules should not "abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution."

It is true that some cases under the Federal Rules are jury-protective. See, e.g., Ross v. Bernhard, 396 U.S. 531 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962); Beacon Theatres, Inc., v. Westover, 359 U.S. 500 (1959). These cases do not alter the essential point, however, that the major thrust of the Federal rules is projudge rather than anti-jury. See infra text accompanying notes 512-13.

FN80 For example, under the Enabling Act of 1934, the Supreme Court and the Advisory Committee, rather than Congress or state legislatures, formulated the procedural rules. Those rules empowered judges at the expense of juries. The rules facilitated the role of courts to deal with larger societal problems, perhaps making it easier for other branches to refrain from resolving those issues. See, e.g., Chayes, supra note 20, at 1288-1302; Oakes, supra note 77, at 8-10. Public policy cases, as well as personal injury and commercial cases, in turn increasingly relied on experts to aid the court, both because lawyers prepared and presented the cases, and because experts were widely utilized as witnesses.

FN81 See 7 Litigation 28, 28-29; Sherman & Kinnard, supra note 7, at 246; Those #*X/!!! Lawyers, TIME, April 10, 1978, at 58-59. Again borrowing from equity, there has been a decrease on the importance of oral testimony in open court and of the trial itself, with profound influence on the quality and meaning of dispute resolution, and on the nature of trial advocacy. See 66 A.B.A. J. 860; Page, 62 A.B.A. J. 1375, 1375; infra text accompanying notes 445-48.

FN82 See infra text accompanying notes 110-21, 214-15, 381-82.

FN83 See Schaefer, Is the Adversary System Working in Optimal Fashion, in THE POUND CONFERENCE, supra note 6, at 171, 186 ("The 1906 lawyer would not recognize civil procedure as it exists today, with relaxed pleading standards, liberal joinder of parties and causes of action, alternative pleadings, Administrative Control of the Courts of the American Plantations, reprinted in ESSAYS, EARLY AMERICAN LAW, supra note 90, at 281, 285; Wolford, supra note 90, at 184-85.

FN92 See infra notes 102-06.

FN93 The needs of new settlers on the edge of the wilderness; the dearth of trained, experienced attorneys, clerks, and administrators; the absence of a formal court structure, with well-defined bureaucratic functions; and the colonists' own previous experience primarily with local courts in their county or manor, rather than with the Central courts, all helped lead to the initial reception of some English law, but often it was law of a local, customary nature. See W. NELSON, AMERICANIZATION OF THE COMMON LAW 21-23 (1975).

FN94 Evidently, the number had been reduced to 10 in New York. See THE FIRST REPORT OF THE (NEW YORK) COMMISSIONERS ON PRACTICE AND PLEADING 139 (1848) [hereinafter 1848 REPORT]. For a description of the writ system in England in the 13th century, see 2 F. POLLACK & F. MAITLAND, supra note 37, at 564-67.

FN95 See W. NELSON, supra note 93, at 2-9.

FN96 See 1 THE ADAMS PAPERS--LEGAL PAPERS OF JOHN ADAMS 28 (L. Wroth & H. Zobel eds. 1968) [hereinafter ADAMS PAPERS]; W. NELSON, supra note 93, at 23.

FN97 See ADAMS PAPERS, supra note 96, at 29; W. NELSON, supra note 93, at 72- 77.

FN98 See L. FRIEDMAN, supra note 54, at 95-96.

FN99 Chaffee, Colonial Courts and the Common Law, 68 Proceedings of the Massachusetts Historical Society 132 (1952), in ESSAYS, EARLY AMERICAN LAW, supra note 90, at 59, 60 (citing, inter alia, 1 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 69 (1904)); see also L. FRIEDMAN, supra note 54, at 95- 97 (discussing American adoption of English common law after the American Revolution).

FN100 See L. FRIEDMAN, supra note 54, at 95-97.

FN101 See id. at 130-31.

FN102 See W. NELSON, supra note 93, at 21; see also ADAMS PAPERS, supra note 96, at xlix (noting that judges exerted little control over a jury once the case had been sent to the jury room).

FN103 See F. JAMES & G. HAZARD (2d), supra note 50, at 347-48.

FN104 Georgia v. Brailsford, 3 U.S. 1, 4 (1794) (Jay, C.J.).

FN105 W. NELSON, supra note 93, at 20-21.

FN106 See id. at 34-35; see also T. JEFFERSON, AUTOBIOGRAPHY (1821), reprinted in 1 THE WORKS OF THOMAS JEFFERSON 3, 78 (Ford ed. 1904) [hereinafter JEFFERSON WORKS] (Thomas Jefferson argued that the jury should be introduced "into the Chancery courts, which have already ingulfed and continue to ingulf, so great a proportion of the jurisdiction over our property."); A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 303-07 (H. Reeve trans. 1904) (discussing the importance of the jury system); Adams' Diary Notes on the Right of Juries (Feb. 12, 1771), reprinted in ADAMS PAPERS, supra note 96, at 228-29 (noting that the people have an important share in the administration of justice); Letter from Thomas Jefferson to L'Abbe Arnond (July 19, 1789), reprinted in 5 JEFFERSON WORKS, supra, at 483-84 (asserting that the jury is the only way to ensure the honest administration of government).

conformity acts of the 1700's and 1800's).

FN115 See, e.g., Swift v. Tyson, 41 U.S. 1, 17-18 (1842) (applying federal common law).

FN116 See Act of March 3, 1875, ch. 137, § 1, 18 Stat 470 (codified at 28 U.S.C. § 1331 (1982)); H. HART & H. WECHSLER, supra note 114, at 229-32.

FN117 See Clark & Moore I, supra note 69, at 401-11.

FN118 See id.

FN119 See H. HART & H. WECHSLER, supra note 114, at 578; see also Beale, supra note 90 (suggesting that there was greater antipathy against courts of equity in the North than the South at the time of the Revolution).

FN120 See H. HART & H. WECHSLER, supra note 114, at 578-79. At first the federal courts were to apply civil law to forms and modes of proceeding in equity cases. See Act of Sept. 29, 1789, ch. 21, § 2, 1 Stat 93, 94. Later, the forms of process in equity were to be "according to the principles, rules and usages which belong to courts of equity . . . , as contradistinguished from courts of common law," and subject to Supreme Court rulemaking power. See Act of May 8, 1782, ch. 36, § 2, 1 Stat 275, 276.

FN121 There was, however, some early legislation in England. See T. PLUCKNETT, supra note 24, at 318-28.

FN122 For portrayals of the Federal Rules as a logical extension of the Field Code and nineteenth century procedural thought, see F. JAMES, JR., CIVIL PROCEDURE § 2.5, at 65-66, § 2.11, at 85-86 (1st ed. 1965); C. WRIGHT, supra note 1, at 436; Burger, Rx for Justice: Modernize the Courts, NATION'S BUSINESS, Sept. 1974, at 60, 61; Clark, Code Pleading and Practice Today [hereinafter Clark, Code Pleading], in DAVID DUDLEY FIELD: CENTENARY ESSAYS CELEBRATING ONE HUNDRED YEARS OF LEGAL REFORM 55, 65 (A. Reppy ed. 1949) [hereinafter CENTENARY ESSAYS]; Clark & Moore I, supra note 69, at 393; Holtzoff, supra note 69, at 1060-62; Pound, David Dudley Field: An Appraisal, in CENTENARY ESSAYS, supra, at 3, 14 [hereinafter Pound, Field].

FN123 See G. MCDOWELL, supra note 9, at 76-79.

FN124 See id. at 76.

FN125 See id. at 77.

FN126 See id. at 76-81.

FN127 See supra note 122.

FN128 See, e.g., D.D. FIELD, What Shall Be Done with the Practice of the Courts (Jan. 1, 1847), reprinted in 1 SPEECHES, ARGUMENTS, AND MISCELLANEOUS PAPERS OF DAVID DUDLEY FIELD 226, 235-37 (A. Sprague ed. 1884) [hereinafter FIELD SPEECHES].

FN129 See 1848 REPORT, supra note 94, at 73-75.

FN130 For the commissioners' admiration of Jeremy Bentham's work, see COMMISSIONERS ON PRACTICE AND PLEADINGS, THE CODE OF CIVIL PROCEDURE OF THE STATE OF NEW YORK, REPORTED COMPLETE 694, 695 (1850).

FN131 See 9 W. HOLDSWORTH, supra note 58, at 390-404 (discussing the increasing complication of equity practice in the 17th and 18th centuries); Bowen, supra note 39, at 524-27 (noting the delays, expense, and complication of equity practice in the Victorian period).

D.D. FIELD, Municipal Officers, reprinted in 2 FIELD SPEECHES, supra note 128, at 176, 183 (Address to the Young Men's Democratic Club of New York, Mar. 13, 1879); D.D. Field, Personal Recollections, at 45, Field-Musgrave mss., Manuscript Department, William R. Perkins Library, Duke University [hereinafter Field-Mus-grave mss.] (indicating that the Field family tradition contains the following inherited guideposts: "the love of freedom, the spirit of independence; fidelity in every position, private or public; and the traditions of truth, justice and honor"); D.D. Field, Recollections of My Early Life Written in the Spring of 1832, at 2, 4, in Field-Musgrave mss..

FN142 D.D. FIELD, Magnitude and Importance of Legal Science, reprinted in 1 FIELD SPEECHES, supra note 128, at 517, 530 (Address at the opening of the Law School of the University of Chicago, Sept. 21, 1859).

FN143 1848 CODE, supra note 79, § 120(2).

FN144 See H. FIELD, THE LIFE OF DAVID DUDLEY FIELD 29 (1898) (discussing Field's love of study and science); D. Van Ee, David Dudley Field and the Reconstruction of the Law 4, 8, 14 (1974) (Ph.D. Dissertation, The Johns Hopkins Univ., to be published as part of Garland Publishing's series of dissertations, entitled American Legal and Constitutional History; the citations are to the original, unpublished dissertation).

FN145 See 1848 REPORT, supra note 94, at 141; C. HEPBURN, THE HISTORICAL DEVELOPMENT OF CODE PLEADING IN AMERICA AND ENGLAND 12-13 (1897) (suggesting that code pleading provides for a "single form of action" to protect both legal and equitable rights); 1 FIELD SPEECHES, supra note 128, at 240-41.

FN146 See Clark, The Code Cause of Action, 33 Yale L.J. 817, 820 n.16 (1924) [hereinafter Clark, Code Cause] (citing, inter alia, 17 Edw. 4, f. 3, pl. 2 (1477)).

FN147 See C. COOK, THE AMERICAN CODIFICATION MOVEMENT: A STUDY OF ANTEBELLUM LEGAL REFORM 194-96 (1981) (discussing Field's attempts to codify both procedural and substantive law). The substantive code, which was never adopted in New York, was completed in 1862. See COMMISSIONERS OF THE (NEW YORK) CODE, DRAFT OF A CIVIL CODE FOR THE STATE OF NEW YORK (1862) [hereinafter 1862 DRAFT CIVIL CODE FOR NEW YORK].

FN148 See 1848 REPORT, supra note 94, at 153; 1 FIELD SPEECHES, supra note 128, at 240.

juries had demonstrated already that they could handle cases with multiple parties and multiple issues, and that "[t]he rapid examination which takes place on common law trials before juries, leads to the truth, as surely as the slower process of other trials." Id. at 178.

FN161 See, e.g., NY CONST art. 1, § 2, quoted in 1848 REPORT, supra note 94, comment to § 208. The new provision is 1848 CODE, supra note 79, § 208.

FN162 See 1848 CODE, supra note 79, §§ 215, 216. The test in § 216 for when the jury could decide the type of verdict it wished to enter was the same as the new test for entitlement to jury trial. See id. § 208.

FN163 See id. In 1852, the New York Code was amended to add what one scholar believes was, "in a circumscribed measure," a precursor to a judgment n.o.v. provision. See MILLAR, THE OLD REGIME AND THE NEW IN CIVIL PROCEDURE 41, 42 (N.Y.U. School of Law Contemporary Law Pamphlets, Series 1, Number 1, 1937) (citing § 265 of 1851 Code (§ 220 of 1848 Code) as amended in 1852). For a history of the directed verdict in New York, see Smith, The Power of the Judge to Direct a Verdict: Section 457-a of The New York Civil Practice Act, 24 Colum. L. Rev. 111 (1924).

FN164 See 2 C. LINCOLN, CONSTITUTIONAL HISTORY OF NEW YORK 69-70 (1906); M. Hobor, The Form of the Law: David Dudley Field and the Codification Movement in New York 1839-1888, at 50-55 (1975) (unpublished Ph.D. Dissertation, Univ. of Chicago). For earlier colonial disfavor of equity, see supra note 90 and accompanying text.

FN165 For an in-depth study of Chancellor Kent's high-handed character, see J. HORTON, JAMES KENT: A STUDY IN CONSERVATISM, 1763-1847 (1939 & photo. reprint 1969).

FN166 See M. Hobor, supra note 164, at 205.

FN167 FIELD, RE-ORGANIZATION, supra note 159, at 8; see also 1848 REPORT, supra note 94, at 71 (stating also positive things about equity, such as that equity "was nevertheless, in its own nature, flexible, highly convenient, and capable of being made to answer all the ends of justice. There was literally no form about it.").

FN168 1 FIELD SPEECHES, supra note 128, at 226-27.

FN169 See id. at 227-33; see also F. JAMES, JR., supra note 122, at 11

FN174 See McCaskill, Actions, supra note 151, at 624-25.

FN175 See C. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 34 (1928) [hereinafter C. CLARK, 1928 HANDBOOK].

FN176 See id. at 23-31, for a description of pleading in the several states before the Federal Rules. According to Clark, not all states became "pure" code states despite the Field Code's popularity.

FN177 See C. CLARK, 1928 HANDBOOK, supra note 175, at 47-51.

FN178 See id. at 44-51, 49 nn.31-35 & 50 n.36; A. LOOMIS, supra note 133, at 25-27; James, The Objective and Function of the Complaint--Common Law-- Codes--Federal Rules, 14 Vand. L. Rev. 899, 910-11 (1961).

FN179 See C. CLARK, 1928 HANDBOOK, supra note 175, at 265-66, 284-86, 297-306; F. JAMES & G. HAZARD (2d), supra note 50, at 175, 458-60.

FN180 See C. CLARK, 1928 HANDBOOK, supra note 175, at 47-49; Clark, Special Problems in Drafting and Interpreting Procedural Codes and Rules, 3 Vand. L. Rev. 493 (1950).

FN181 See Pound, Field, supra note 122, at 10.

FN182 See JOINT LEGISLATIVE COMMITTEE, supra note 171, at 11, 12; Clark, Code Pleading, supra note 122, at 62.

FN183 REPORT OF THE COMMITTEE ON CODE REVISION (1898), 22 N.Y. ST. B.A. REP. 170, 175 (1899) [hereinafter 1898 N.Y. ST. B.A. CODE REVISION].

FN184 See id. at 189-90. Summary judgment is also mentioned as a possible reform. See id. at 190-91.

FN185 Idaho 191.

FN186 J. POMEROY, CODE REMEDIES 640 (5th ed. 1929), cited in C. CLARK, 1928 HANDBOOK, supra note 175, at 227 & n.56. On the difficulty that the courts had in defining "fact," see C. CLARK, 1928 HANDBOOK, supra note 175, at 155-60; J. COUND, J. FRIEDENTHAL & A. MILLER, supra note 5, at 391-98; C. REMBAR, supra note 32, at 239-46.

FN187 See, e.g., Clark, Fundamental Changes Effected by the New Federal Rules I, 15 Tenn. L. Rev. 551, 551 (1939) [hereinafter Clark, Fundamental Changes]; Clark, Procedural Fundamentals, 1 Conn. B.J. 67, 67 (1927) [hereinafter Clark, Procedural Fundamentals]; Clark, Code Cause, supra note 146, at 819 (Clark's first subtitle in this article is "The Delusive Exactness of the Codes"); Clark & Surbeck, The Pleading of Counterclaims, 37 Yale L.J. 300, 315-16, 328 (1937); Smith, Judge Charles E. Clark and the Federal Rules of Civil Procedure, 85 Yale L.J. 914, 916-21 (1976).

FN188 President's Address by J. Newton Fiero (Jan. 18, 1893), reprinted in 16 N.Y. ST. B.A. REP. 48, 50 (Jan. 18, 1893).

FN189 See 1898 N.Y. ST. B.A. CODE REVISION, supra note 183, at 184-88.

FN190 See id. at 176, citing a portion of the address of William B. Hornblower before the Indiana Bar Association in June, 1897. Hornblower was a member of the Committee on Law Reform of the New York State Bar Association.

FN191 Id.

FN192 See C. CLARK, 1928 HANDBOOK, supra note 175, at 16; C. HEPBURN, supra (1896). The discussion in these reports indicate that all of the proposals for uniform civil federal rules were defeated during this period, in large measure because most lawyers and congressmen apparently thought the Conformity Act, requiring federal courts to follow state procedural law as closely as possible, worked tolerably well, and because there was suspicion that New Yorkers wanted to achieve a federal model primarily as a means to attack the Throop Code.

FN201 See Pound, Popular Dissatisfaction, supra note 198. For the effect of the speech at the time, see Wigmore, Roscoe Pound's St. Paul Address of 1906: The Spark that Kindled the White Flame of Progress, 20 J. AM. JUDICATURE SOC'Y 176 (1937) [hereinafter Wigmore, Pound].

FN202 See 36 A.B.A. REP. 50 (1911) (Shelton suggested that remedies and laws be formulated to prevent delay and unnecessary litigation costs.).

FN203 Pound was born on Oct. 27, 1870. D. WIGDOR, ROSCOE POUND: PHILOSOPHER OF LAW 3 (1974).

FN204 See id. at 123; Wigmore, Pound, supra note 201, at 176.

FN205 See D. WIGDOR, supra note 203, at 8-10, 74-101.

FN206 Wigdor writes that Pound's teachers at Harvard Law School "led him to a judge-centered view of the legal process, a position not uncongenial for the son of a judge." Id. at 47.

FN207 See id.

FN208 Idaho 72 (quoting Pound, Wig and Gown, NEB. LEGAL NEWS, July 31, 1897, at 5).

FN209 Pound, Popular Dissatisfaction, supra note 198.

FN210 See id. at 403-04.

FN211 See id. at 403-04. (His examples include rate setting, pure food, and workers' conditions of employment.)

FN212 Idaho 404.

FN213 See Pound, The Etiquette of Justice, 3 PROC. NEB. ST. B.A. 231, 237-48 (1908) [hereinafter Pound, Etiquette].

FN214 Idaho 249. Pound adds, "[B]ut better checks may be found to restrain the judges than ultraformalism of procedure." Id. He does not explain, however, what these checks would be.

FN215 See supra text accompanying notes 42-67.

FN216 Pound, Popular Dissatisfaction, supra note 198, at 405; see also Pound, Etiquette, supra note 213, at 236.

FN217 Pound, Popular Dissatisfaction, supra note 198, at 412.

FN218 See, e.g., Loewe v. Lawler, 208 U.S. 274 (1908); Adair v. U.S., 208 U.S. 161 (1908); Lochner v. New York, 198 U.S. 45 (1905). For sentiment against the judiciary and the corporate bar, see J. AUERBACH, UNEQUAL JUSTICE 31-32 (1976); P. FISH, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 17, 18 (1973); G. ROE, OUR JUDICIAL OLIGARCHY (1912); Fish, William Howard Taft and Charles Evans Hughes: Conservative Politicians as Chief Judicial Reformers, 1975 Sup. Ct. Rev. 123, 125.

FN219 On Pound's theme on the need for legal expertise, see, e.g., his

FN230 Pound, Etiquette, supra note 213, at 231. The same language is used in Pound, Some Principles, supra note 171, at 388. There, he adds: "For form is, if I must say so, the substance of adjective law." Id. at 389.

FN231 For biographical information on Shelton, see 17 A.B.A. J. 282, 282-83; Thomas Wall Shelton, 23 JUDGE & L. 164 (1916- 1917); Shelton, Thomas Wall, WHO'S WHO IN AMERICA 2000 (1930-1931). Letters from Shelton to Roscoe Pound from 1912 through 1929 show, according to Shelton's business stationery letterhead, that he did not have a very large firm. For instance, a 1912 letter shows only Shelton above a line and Claude M. Bain below it. Letter from Shelton to Pound (Aug. 5, 1912) (available in the Roscoe Pound Papers, Manuscript Division of the Harvard Law School Library, Box 228, Folder 17) [hereinafter Pound Papers]. A June 10, 1918 Shelton letter to Pound shows Shelton and Alfred Anderson alone as "Attorneys and Counselors at Law." Id. at Box 228, Folder 17. An August 12, 1929 Shelton letter to Pound shows Shelton and Anderson "Attorneys and Counselors at Law" above the line, and Russell T. Bradford below. Id. at Box 82, Folder 4.

FN232 1915 Senate Hearings, supra note 198, at 13; see Procedure in the Federal Courts: Hearings on H.R. 2377 and H.R. 90 Before the House Comm. on the Judiciary, 67th Cong., 2d Sess. 6, 13 (1922) [hereinafter 1922 House Hearings].

FN233 See 37 A.B.A. REP. 142 (1912).

FN234 Letter from Shelton to Pound (April 5, 1913), Pound Papers, supra note 231, at Box 228, Folder 17; Letter from Shelton to Taft (Feb. 4, 1924) (available at reel 261 of the William Howard Taft Papers Collection, Library of Congress, Washington, D.C. [hereinafter Taft Papers]); see also Letter from Shelton to Hon. Albert B. Cummins (March 19, 1926), id. at reel 281.

FN235 See infra text accompanying notes 269-74, 290-98, 305-55.

FN236 Shelton, Simplification of Legal Procedure--Expediency Must Not Sacrifice Principle, 71 CENT. L.J. 330 (1910) [hereinafter Shelton, Simplification].

FN237 Idaho 333.

FN238 Idaho 337, 337.

FN239 Shelton, The Relation of Judicial Procedure to Uniformity of Law, 72 with T. SHELTON, SPIRIT, supra note 198, at ch. 3 (chapter entitled "Expediency Must Not Sacrifice Principle").

FN246 On tying judges' hands, see 13 A.B.A. J. pt. II, 3, 4 [hereinafter Shelton, Philosophy of Rules]; see also 7 A.B.A. J. 165, 166- 67 (arguing that the proposed Enabling Act bill would free judges and lawyers to perfect "a simple, correlated, scientific procedural system"); 6 A.B.A. J. 509, 516 [hereinafter 1920 Report] (advancing similar claims about Supreme Court rulemaking).

FN247 Shelton, Greater Efficacy of the Trial of Civil Cases, 32 LAW NOTES 45, 48 (1928) [hereinafter Shelton, Greater Efficacy] (reprinted from The Annals (American Academy of Political and Social Science, March 1928)).

FN248 Shelton, Hobbled Justice--A Talk with Judges, 13 Minn. L. Rev. 129, 129-30 (1929) [hereinafter Shelton, Hobbled Justice].

FN249 Shelton, The Drama of English Procedure, 17 Va. L. Rev. 215, 252 (1931) [hereinafter Shelton, English Procedure].

FN250 See 35 A.B.A. REP. 48 (1910). Shelton's proposed resolution was transferred to the ABA committee that had been established in response to Pound's 1906 address. See Report of the Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation 36 A.B.A. REP. 448 (1911); supra notes 221-22 and accompanying text.

FN251 Pound, Schedule E, Report of Sub-Committee upon the Resolution of Mr. Florance and That of Mr. Shelton, 36 A.B.A. REP. 480-81 (1911).

FN252 Idaho 481.

FN253 Idaho 482.

FN254 See, e.g., T. SHELTON, SPIRIT, supra note 198, at x (noting Shelton's gratitude toward Pound). Shelton's correspondences with Pound can be found in the Pound Papers, supra note 231. On Shelton's friendship and admiration, see, e.g., Letter from Shelton to Pound (Aug. 5, 1912), Letter from Shelton to Pound (June 20, 1916), Letter from Shelton to Pound (Feb. 21, 1918), Letter from Shelton to Pound (June 10, 1918), at Box 228, Folder 17; Letter from Pound to Shelton (Apr. 3, 1920) at Box 158, Folder 17; Letter from Shelton to Pound (Aug. 17, 1921), Letter from Shelton to Pound (Aug. 21, 1922) at Box 32, Folder 25; Letter from Shelton to Pound (May 3, 1929), Letter from Pound to Shelton (May 6, 1929), Letter from Shelton to Pound (May 29, 1929), Letter from Shelton to Pound (May 29, 1929), Letter from Shelton to Pound (Aug. 12, 1929), at Box 82, Folder 4.

FN255 See 21 VA. ST. B.A. REP. 6 (1908) (list of members registered at the meeting).

FN256 See Taft, The Administration of Justice--Its Speeding and Cheapening, 21 VA. ST. B.A. REP. 233, 238 (1908), reprinted in Taft, The Delays of the Law, 18 Yale L.J. 28 (1908).

FN257 226 U.S. 649, 659-73 (1912). On ABA support and involvement, see, e.g., Report of the Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation 37 A.B.A. REP. 557, 558 (1912); Report of the Special Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation 36 A.B.A. REP. 448, 457, 460 (1911).

Seeking to Induce Congress to Permit the Supreme Court to Regulate Procedure at Law in Federal Courts, 76 CENT. L.J. 206, 206-07 (1913); Shelton, Uniform Procedure Will Follow Simplification, supra note 244, at 209-11; Shelton, Reform and Uniformity, supra note 242, at 115; Shelton, Uniform Judicial Procedure, supra note 241, at 319-20; Vinson, The New Federal Equity Rules, 76 CENT. L.J. 212, 212-214 (1913); 1920 Report, supra note 246, at 513-17.

FN265 See Pound, Some Principles, supra note 171.

FN266 See 1910 Comm. of Fifteen Sub-Comm. Report, supra note 222.

FN267 See REPORT OF THE BOARD OF STATUTORY CONSOLIDATION OF THE STATE OF NEW YORK ON A PLAN FOR THE SIMPLIFICATION OF THE CIVIL PRACTICE IN THE COURTS OF THE STATE 9-17 (1912). The principles of the Report are summarized in Rodenbeck, Principles of a Modern Procedure, 2 J. AM. JUDICATURE SOC'Y 100 (1918).

FN268 See Burbank, supra note 6, at 1058; 1920 Report, supra note 246, at 543.

FN269 On Shelton's admiration of Taft, see T. SHELTON, SPIRIT, supra note 198, at x; Shelton, Progress of the Proposal to Substitute Rules of Court for Common Law Practice, 12 Va. L. Rev. 513, 520 (1927); Letter from Shelton to Pound (Feb. 21, 1918), Pound Papers, supra note 231, at Box 228, File 17.

FN270 Also, Democrats substantially increased their control of the House of Representatives, and gained control of the Senate. See ENCYCLOPEDIA OF AMERICAN HISTORY 325, 326, 561 (R. Morris & J. Morris eds. 1976).

FN271 See 2 H. PRINGLE, THE LIFE AND TIMES OF WILLIAM HOWARD TAFT 572-74 (reprint 1964); 17 T. ROOSEVELT, WORKS, supra note 227, at 5-22 (speech at Osawatomie, Kansas, Aug. 31, 1910).

FN272 See G. MOWRY, THE ERA OF THEODORE ROOSEVELT AND THE BIRTH OF MODERN AMERICA 1900-1912, at 43 (1958).

FN273 See T. SHELTON, SPIRIT, supra note 198, at xxi, 23, 78, 80; Shelton, Hobbled Justice, supra note 248, at 133; Shelton, Philosophy of Rules, supra note 246, at 4; Shelton, The Struggle for Judicial Independence, 10 Va. L. Rev. 214, 217 (1924); Shelton, Judicial Courts of Inquiry--An Antidote for the Recall of Judges, 82 CENT. L.J. 423 (1916). An ABA committee was formed in 1911 to fight the principle of judicial recall. See Transactions of the Thirty- FN278 T. PLUCKNETT, supra note 24, at 211.

FN279 See supra notes 128, 133, 264.

FN280 Sheeler v. Alexander, 211 F.Supp. 544, 545 (N.D. Ohio 1913) (Day, J.), cited by Lane, Working Under, supra note 263, at 74. Lane adds, "This statement [by Judge Day] fairly expresses the purpose of the rules, although the results secured by them in some instances are hardly fulfilling that purpose."

FN281 See Taft, Possible and Needed Reforms in the Administration of Justice in Federal Courts, 47 A.B.A. REP. 250 (1922), reprinted in 8 A.B.A. J. 601; 8 A.B.A. J. 34, 35.

FN282 Walsh, Texarkana Address, supra note 276, at 3.

FN283 See Letter from Walter Lindley to Walsh (May 26, 1926), Thomas J. Walsh Papers, Library of Congress, Box 302, Legislative File 1913-1933, "Procedural Bill" ca. 1926 [hereinafter Walsh Papers].

FN284 See 1914 HOUSE REPORT, supra note 275, at 4-9; Shelton, Uniform Judicial Procedure, supra note 241, at 321-22; see also Report of the Committee on Uniform Judicial Procedure, 48 A.B.A. REP. 343, 349 (1923) (stating that the Supreme Court in Bank of the U.S. v. Halstead, 23 U.S. (10 Wheaton) 51 (1825), held that conforming to constant unscientific state legislation unnecessarily burdened "the administration of law and tended to defeat the ends of justice in the national Tribunals"). The critics stress that the expansiveness of the "near as may be" language in the Conformity Act permitted the many exceptions to conformity. See Shelton, Uniform Judicial Procedure, supra note 241, at 322. Senator Walsh never conceded that lawyers had difficulty knowing what procedures applied in federal court. See, e.g., Walsh, Texarkana Address, supra note 276, at 3. Responses to a 1926 letter he sent to federal judges and others put in question the assertion of Shelton and other ABA proponents of the Enabling Act that the Conformity Act was a failure and that most knowledgeable people agreed that it was a failure; the responses from federal district and circuit court judges in the Walsh Papers show approximately 26 in favor of maintaining the Conformity Act and 15 favoring a uniform federal rule approach; four responses do not give an opinion. The responses from U.S. Supreme Court Justices were also mixed (Sutherland and Stone clearly for the Enabling Act; Brandeis and Holmes clearly against; Taft will reply later; Butler, McReynolds, and Van Devanter offer no clear opinion.) Walsh Papers, supra note 283, Boxes 301, 302, Procedural Bill. We know, though, Interstate Commerce Commission, Brandeis pointed out while cross-examining the President of Pennsylvania Railroad that railroads could secure increased revenue through economy and efficiency without burdening shippers and the consuming public.). But see id. at 332 (union antagonism to scientific management).

FN295 See 1915 Senate Hearings, supra note 198, at 29; T. SHELTON, SPIRIT, supra note 198, at 83-96; Shelton, A New Era of Judicial Relations, 23 CASE & COMMENT 388, 392 (1916). Shelton believed that our haphazard procedural system forced attorneys to adhere to technicalities rather than facilitating the issue to be tried, and, therefore, delayed the determination of cases on their merit, thus causing businessmen to turn to arbitration. See Shelton, Greater Efficacy, supra note 247, at 46.

FN296 See Procedure in Federal Courts, Hearings on S. 2060 and S. 2061 Before a Subcomm. of the Senate Comm. on the Judiciary, 68th Cong., 1st Sess 55 (Statement of Sutherland, J.), 63 (Statement of T. Shelton) (1924) [hereinafter 1924 Senate Hearings]; Pound, Reforming Procedure, supra note 264, at 211.

FN297 See 1915 Senate Hearings, supra note 198, at 13, 14. A related argument was that new methods of communication and transportation had erased the meaning of state boundaries; interstate business clients needed uniform law application and uniform decisions that would be applicable in all states. See id.

FN298 See 1924 Senate Hearings, supra note 296, at 72; 1915 Senate Hearings, supra note 198, at 22, 29. Another related pro-Enabling Act argument, which should be taken with a grain of salt given the ABA professionalization slant of the proponents, was that law should not be kept a mystery from the public. See id. at 61-62. Shelton also contended that some lawyers would lose business from the less technicalrules. See id. at 29.

FN299 See A. LOOMIS, supra note 133, at 10.

FN300 See Burbank, supra note 6, at 1106.

FN301 On common law integration, see supra text accompanying notes 29-30. On some integration in Field's substantive code, see, e.g., general rules on measure of damages and variations of measures of damages for 22 specific types of cases ranging from "Covenant to convey land" and "warranty of personal property" to "Injuries to trees, &c," "Injuries to animals," and "Cases of fraud, oppression and malice." See 1862 DRAFT CIVIL CODE FOR NEW YORK, supra note 147, §§ 1504-1506, at 365-69. The Field Code itself had some integration, Clark, History, supra note 305, at 528 (referring to arbitrary limitations in common law forms of pleading); Clark, Code Cause, supra note 146, at 819-20 (The Code's vague, rather than rigid, rules of procedure enabled judges to interpret them so as to decide a case on its merits.); Clark & Surbeck, supra note 187, at 316, 328; Smith, supra note 187, at 916-21; Clark, Pleading Negligence, supra note 305, at 490; see also Proceedings of Meeting of Advisory Committee on Rules for Civil Procedure of the Supreme Court of the United States 227 (Clark comments, Feb. 20, 1936). The transcripts of the Feb. 20-25, 1936 Advisory Committee meetings are in six volumes, as part of the Advisory Committee documents donated by Edmund M. Morgan, a member of the Advisory Committee, to the Harvard Law Library. These six volumes are hereinafter cited as Feb. 1936 Transcript. [The totality of manuscripts donated by Morgan to Harvard are hereinafter cited as the Morgan Papers.] For a description of other locations for these, and other documents of the Advisory Committee, see Burbank, supra note 6, at 1132 n.529.

FN310 See supra text accompanying notes 26-31. A recent book states: "With other realists, Clark seems to have preferred equity to law simply because of the opportunity it offered to avoid jury trial." L. KALMAN, LEGAL REALISM AT YALE: 1927-1960, at 21 (1986). As my next several pages prove, Clark's attraction to equity, although including antagonism to juries, was rooted in a multi-faceted set of beliefs and agendas.

FN311 C. CLARK, 1928 HANDBOOK, supra note 175, at 13.

FN312 Idaho 15.

FN313 Idaho 16.

FN314 Idaho 17.

FN315 See supra notes 164-67 and accompanying text.

FN316 See C. CLARK, 1928 HANDBOOK, supra note 175, at 22-23.

FN317 Idaho 34.

FN318 See id. at 150-54, 170-79; Clark, History, supra note 305, at 544; Clark, Code Cause, supra note 146, at 832. Clark thought, however, that forms would be helpful to the pleader. See Clark, The Complaint in Code Pleading, 35 Yale L.J. 259, 271 (1926) [hereinafter Clark, The Complaint].

FN319 See C. CLARK, 1928 HANDBOOK, supra note 175, at 214, 255, 256, 270-73, 282-94, 306-07.

FN320 See id. at 31-38.

FN321 See id. at vii; Clark, Handmaid, supra note 308, at 299, 300.

FN322 See C. CLARK, 1928 HANDBOOK, supra note 175, at 19, 150-51, 255; Clark, History, supra note 305, at 548; Clark, Code Cause, supra note 146, at 819, 820; supra text at note 267.

FN323 See 9 WHO'S WHO (1961-1968); Gumbart Interview, supra note 302.

FN324 See Clark, Trial of Actions under the Code, 11 CORNELL L.Q. 482, 483 (1926) [hereinafter Clark, Trial of Actions]; Clark, Pleading Negligence, supra note 305, at 489.

FN325 See Clark, Pleading Negligence, supra note 305, at 487-90.

FN326 See Clark, The Complaint, supra note 318, at 260-61; Clark, Pleading Negligence, supra note 305, at 489.

REV. 233 (1937).

FN336 See supra notes 227-29. Professor Peter Charles Hoffer has found the nineteenth century origins of such "equitable balancing" in nuisance cases. See Hoffer, Balancing the Equities: Injunctive Relief for Nuisance, The Origins of the Managerial Court, and the Legitimacy of Equitable Discretion 3-4 (1987) (unpublished manuscript).

FN337 Clark, Fact Research in Law Administration, 1 Miss. L.J. 324, 324 (1929).

FN338 See Clark, Federal Procedural Reform and States' Rights: To a More Perfect Union, 40 Tex. L. Rev. 211 (1961); Clark, A Socialistic State Under the Constitution, 9 FORTUNE 68 (Feb. 1934) (The editors make clear that the title of the article was not chosen by Clark.); Clark, Book Review, 54 Yale L.J. 172 (1944) (reviewing G. PEPPER, PHILADELPHIA LAWYER: AN AUTOBIOGRAPHY (1944)); The New Deal and the Constitution, Discussion by Charles E. Clark, Dean, Yale Law School and Thurman W. Arnold, Professor of Law, Yale University, March 10, 1934, Over the Red Network of the National Broadcasting Company Under the Direction of the League for Industrial Democracy and the National Advisory Council on Radio in Education (available in the Yale Law Library).

FN339 C. Clark, Law Professor, What Now, Address of the President of the Association of American Law Schools at the 31st Annual Meeting (Dec. 28-30, 1933), reprinted in 20 A.B.A. J. 431-35 [hereinafter C. Clark, Law Professor, What Now] (quoting Frankfurter, The Early Writings of O.W. Holmes, Jr., 44 Harv. L. Rev. 717, 717 (1931)).

FN340 See 21 A.B.A. J. 529, 529; Letter from Clark to William L. Ransom (then a member of the ABA Executive Committee) (March 1, 1935), Clark Papers, supra note 192, at Box 81, Folder 29.

FN341 See C. CLARK, 1928 HANDBOOK, supra note 175, at 31-38. In 1929, Clark mentioned "discovery under modern statutes" as a topic investigated at Yale on behalf of the Connecticut Judicial Council, but he looks to trial for bringing out facts, not discovery. See Clark, Methods, supra note 327, at 112-14; Clark & Moore, A New Federal Civil Procedure II: Pleadings and Parties, 44 Yale L.J. 1291, 1310 (1935) [hereinafter Clark & Moore II] (mentioning under "Miscellaneous pleading rules," that motions to make more definite and certain and for bills of particulars "need to be supplemented by modern methods of discovery").

152 (insurance company investigation), 168 (coal investigation), 296 (rate cases), 383-84, 387, 389, 415-16, 638-39 (special master), 672-73 (certiorari conferences).

FN350 See C. CLARK & H. SHULMAN, supra note 329, at 78-79; Clark, Trial of Actions, supra note 324, at 491; Shelton, The Judicial Power: The Lawyers' Duty to Protect, 9 Va. L. Rev. 114, 123-24 (1922); Shelton, Is the Common Law Relation of Judge and Jury Subject to Legislative Change, 3 Va. L. Rev. 275, 275 (1916); Taft, Attacks, supra note 274, at 20-21. Many legal realists disfavored the jury, but they generally cherished the dream of becoming judges. See L. KALMAN, supra note 310, at 21, 43.

FN351 See, e.g., Clark, The Role of the Supreme Court in Federal Rule- Making, 46 J. AM. JUDICATURE SOC'Y 250, 256 (1963) [hereinafter Clark, Role of Supreme Court].

FN352 Clark, Procedural Reform and the Supreme Court, AM. MERCURY, Aug. 1926, at 445, 446 [hereinafter Clark, Procedural Reform]; see Clark, Methods, supra note 327, at 110; Clark & Moore I, supra note 69, at 390 (members of the bar would be unwilling to change a system that they had already mastered).

FN353 See Clark, Role of Supreme Court, supra note 351, at 257-58; Clark, Procedural Reform, supra note 352, at 445.

FN354 See supra text accompanying notes 269-74, 290-98, 305-51.

FN355 Ironically, Senator Walsh, who had fought the Enabling Act for twenty years, was Roosevelt's first choice for Attorney General. His death permitted Cummings to become Attorney General, which in turn helped lead to the Act's passage. See Burbank, supra note 6, at 1063-65, 1081-89, 1095-98; Chandler, supra note 1, at 483-85.

FN356 See THE NATIONAL CYCLOPEDIA OF AMERICAN BIOGRAPHY 13, 14 (1934) (Homer Steel Cummings).

FN357 See, e.g., Corey, Stream-lined Justice, Attorney Gen. Homer S. Cummings Discusses the New Speed in Procedure of the Federal Courts, NATION'S BUS. 29 (July 1938); 23 A.B.A. J. 7, 8; H. Cummings, Immediate Problems for the Bar, Address Delivered to the New York County Lawyers' Association (Mar. 14, 1934), Homer Steel Cummings Papers, in Manuscript Dept., Alderman Library, Univ. of Virginia Library, Box 212, reprinted in SELECTED PAPERS OF HOMER CUMMINGS 182-84 (C. Swisher ed. [hereinafter Clark, Two Decades]; Letter from Attorney General Homer Cummings to Clark (Jan. 16, 1935), Clark Papers, supra note 192, at Box 108, Folder 40.

FN366 Letter from Clark to Major Edgar B. Tolman (Jan. 4, 1935), Clark Papers, supra note 192, at Box 108, Folder 40.

FN367 See, e.g., Letter from E.M. Morgan to Clark (Feb. 28, 1935), with copy of letter Morgan sent to Hon. Harlan F. Stone (Feb. 20, 1935), Clark Papers, id. at Box 108, Folder 41; copy of letter from Monte M. Lemann to Major Edgar B. Tolman (Mar. 18, 1935), id.; Letter from Evan A. Evans (Judge, 7th Cir.) to Clark (Feb. 4, 1935), id. at Box 108, Folder 40; Letter from John J. Parker (Judge, 4th Cir.) to Clark (Feb. 7, 1937), id.

FN368 See Letter from Evan A. Evans (Judge, 7th Cir.) to Clark (Feb. 9, 1935), Clark Papers, Id. at Box 108, Folder 40 (describing Tolman's views after meeting with him: "He seemed to think that the rules for actions at law might be very similar to the equity rules and therefore all the benefits of unified procedure would be accomplished.").

FN369 In terms of education, type and size of law firm, clients, offices held in professional organizations, and membership in social clubs, the Advisory Committee members, particularly the lawyers, appear to comprise an extremely elite group. The professors were Wilbur H. Cherry, Prof. of Law, U. of Minnesota (B.A. McGill U., LL.B Columbia U.); Charles E. Clark, Dean, Yale U. Law School (Reporter) (B.A., LL.B Yale); Armistead M. Dobie, Dean, U. of Virginia Law School (B.A., M.A., LL.B. U. of Va.); Edmund M. Morgan, Prof. of Law, Harvard U. (A.B., A.M., LL.B. Harvard); Edson R. Sunderland, Prof. of Law, U. of Michigan (A.B., A.M., LL.B. U. of Mich.). The lawyers were William D. Mitchell, N.Y.C. (Chairman); Scott M. Loftin, Jacksonville, Florida, Pres. of the ABA; George W. Wickersham, N.Y.C., Pres. of the American Law Institute; Robert G. Dodge, Boston, Mass; George Donworth, Seattle, Washington; Joseph G. Gamble, Des Moines, Iowa; Monte H. Lemann, New Orleans, Louisiana; Warren Olney, Jr., San Francisco, California; Edgar B. Tolman, Chicago, Illinois. See Appointment of Committee to Draft Unified System of Equity and Law Rules, 295 U.S. 774 (1935). On Feb. 17, 1936, George Wharton Pepper of Philadelphia, Pennsylvania was appointed a member of the Advisory Committee "in place of George W. Wickersham, deceased." Order, 297 U.S. 731 (1936). See MARTINDALE HUBBELL LAW DIRECTORY (1935) [hereinafter MARTINDALE HUBBELL]; THE NATIONAL CYCLOPEDIA OF AMERICAN BIOGRAPHY (1934); WHO'S WHO, THE AMERICAN BAR (1935).

FN370 William DeWitt Mitchell, WHO'S WHO IN AMERICA (1956-1957). Some firms,

FN386 For emphasis on the place of procedure in having substantive law applied in a constant manner, see Clark, Procedural Fundamentals, supra note 187, at 62; Pound, Some Principles, supra note 171, at 390. Cummings said, "Courts exist to vindicate and enforce substantive rights. Procedure is merely the machinery designed to secure an orderly presentation of legal controversies." 21 A.B.A. J. 403 (quoting a previous statement). There are, of course, other values besides consistency and predictibility that should be furthered by civil adjudication. See infra note 465.

FN387 See FED. R. CIV. P. 8(a)(2), 12(b)(6). For avoidance of "fact" and "cause of action," see 1938 House Hearings, supra note 68, at 94 (statement of Edgar Tolman, Secretary of the Advisory Committee); Sunderland, The New Federal Rules, 45 W. VA. L.Q. 5, 12 (1938) [hereinafter Sunderland, New Federal Rules]. The question of whether to use the words "facts" and "cause of action" confounded the Advisory Committee early in their deliberations. See Advisory Comm. Transcript (Nov. 15, 1935), Clark Papers, supra note 192, at Box 94, Folder 2 at 364c, 364d, 365, 366, 387, 417-24; Summary of Proceedings of the First Meeting of the Advisory Comm. on Rules, Held in the Federal Building at Chicago, Thursday, June 20, 1935, id. at Box 104, Folder 35.

FN388 Rule 23 (Tent. Draft No. 1, Oct. 15, 1935). The various drafts can be found with the Morgan Papers, supra note 309, and the Clark Papers, supra note 192. For a description of other locations for these, and other documents of the Advisory Committee, see Burbank, supra note 6, at 1132-33 n.529.

FN389 Rules 10, 11(d) (Tent. Draft No. 2, December 23, 1935).

FN390 Feb. 1936 Transcript, supra note 309, at 260 (Dodge suggesting Federal Equity Rule 25, including the term "ultimate facts"), 267 (Clark's response).

FN391 Feb. 1936 Transcript, supra note 309, at 283.

FN392 See Sunderland, New Federal Rules, supra note 387, at 12: "Whether this [eliminating the terms "facts" and "cause of action"] will do any good is very doubtful, for both terms are embedded in the literature of the law and in the vocabulary of the profession"; see also Feb. 1936 Transcript, supra note 309, at 306 (Statement of Cherry) (stating that he is "not impressed . . . with the idea that we get away from any particular difficulty by a new set of words").

abuse"); supra note 388.

FN402 Feb. 1936 Transcript, supra note 309, at 735 (Statement of Mitchell); see also id. at 661, 669-70 (Statement of Mitchell).

FN403 Feb. 1936 Transcript, supra note 309, at 736 (Statement of Pepper).

FN404 See id. at 740-41 (Statement of Donworth); Advisory Comm. Transcript (Nov. 14, 1935), Clark Papers, supra note 192, at Box 94, Folder 1 at 252 (Wickersham suggests the use of masters to rule on evidence points during discovery, and Mitchell says that Congress will not appropriate money for the job).

FN405 See Feb. 1936 Transcript, supra note 309, at 739, 750-52 (Statement of Mitchell). A representative from the Patent Bar also made this suggestion. See Advisory Committee Transcript (Oct. 22, 1936), Clark Papers, supra note 192, at Box 96, Folder 15 at 6-7 (Merrell E. Clark, representing the Patent Section Comm. of the ABA).

FN406 Rule 24 (Tent. Draft No. 3, March 1936); see supra note 388.

FN407 Rule 24 (Tent. Draft No. 3, March 1936). A similar proposal was contained in Rule 38 (Tent. Draft No. 1, Oct. 15, 1935). See supra note 388.

FN408 See Feb. 1936 Transcript, supra note 309, at 669, 674 (Statement of Mitchell), 672 (Statement of Dobie), 729, 735 (Statements of several members), 1078-86 (Statement of Mitchell). There was also fear of "inordinate expense" to the parties as a result of using masters. See Advisory Committee Transcript (Nov. 11, 1935), Clark Papers, supra note 192, at Box 94, Folder 6 at 1902-03.

FN409 See id. at 506-07 (Mitchell); id. at 509 (Pepper), 510-15.

FN410 Rule 16, as passed in 1938, listed the "simplification of issues" as one of the matters that could be considered as part of pretrial procedure.

FN411 See generally Clark, The Summary Judgment, 36 Minn. L. Rev. 567 (1952) (providing a detailed description of FED. R. CIV. P. 56); see also Clark, The Texas and the Federal Rules of Civil Procedure, 20 Tex. L. Rev. 4, 10-11 (1941) (suggesting that pretrial procedures would "aid[] in getting to the issue rapidly"); Sunderland, Discovery Before Trial Under the New Federal Rules, 15 Tenn. L. Rev. 737, 753, 755 (1939); Sunderland, Trends in Procedural Law, 1 La. L. Rev. 477, 487, 497 (1939); Sunderland, Theory and Practice of Pre-Trial Procedure, 21 J. AM. JUDICATURE SOC'Y 125, 126-27 (1937) [hereinafter Sunderland, Theory and Practice]. The Court itself even expressed such a belief. See Conley v. Gibson, 355 U.S. 41, 47-48 (1957) ("[T]he liberal opportunity for discovery and the other pretrial procedures [will] define more narrowly the disputed facts and issues.").

FN412 See supra notes 323-32 and accompanying text.

FN413 Finch, Some Fundamental and Practical Objections to the 22 A.B.A. J. 809, 809.

FN414 Idaho 810.

FN415 Mitchell, Some of the Problems Confronting the Advisory Committee in Recent Months--Commencement of Actions--Effect of Findings of Fact in Cases Tried by 23 A.B.A. J. 966, 969.

FN416 Id.

FN417 See C. CLARK & H. SHULMAN, supra note 329, at 52 (stating, for instance, thought requires that the pleadings allege, even if only in sketchy terms, the existence of circumstances that are reasonably believed to be true and that if true would entitle the party to relief. The other line established that a pleading is sufficient unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 353 U.S. 41, 45-46 (1957). In any event, the plaintiff is permitted to allege the claim in general terms.

FN433 This was especially true in the Ninth Circuit. See Claim or Cause of Action: A Discussion on the Need for Amendment of Rule 8(a)(2) of the Federal Rules of Civil Procedure, 13 F.R.D. 253 (1952). The proposed amendment to Rule 8(a)(2) would have required the pleader to give "a short and plain statement of the claim showing that the pleader is entitled to relief, which statement shall contain the facts constituting a cause of action." Id. at 253. For an example of Clark's resistance, see, e.g., ADVISORY COMM. ON THE RULES OF CIVIL PROCEDURE, REPORT OF PROPOSED AMENDMENTS TO THE RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS 18-19 (October 1955) (stating that "Rule 8(2) envisages the statement of circumstances, occurrences and events in support of the claim presented . . . . [N]o change in the rule is required or justified."); U.S. Supreme Court Advisory Committee on Rules for Civil Procedure, Experience Under the Federal Rules of Civil Procedure 11-18 (1953) [hereinafter Experience Under the Rules] (submitted by Charles E. Clark, Reporter).

FN434 The amendment to Rule 12(e) abolished the use of motions for a bill of particulars, and limited the motion for a more definite statement only to where the movant cannot reasonably be required to frame an answer or response to the pleading in question. For a background discussion of the 1948 amendment to FED. R. CIV. P. 12(e), see 5 C. WRIGHT & A. MILLER, supra note 1, §§ 1374- 1376, and Committee Notes to 1948 amendment to FED. R. CIV. P. 12(e), reprinted in 12 C. WRIGHT & A. MILLER, supra note 1, at 385-86.

FN435 See 5 C. WRIGHT & A. MILLER, supra note 1, § 1228 (antitrust, monopoly, and restraint of trade); 2A J. MOORE, supra note 76, §§ 8.17(3) (antitrust), 8.17(4-1) (civil rights); Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 447-50 (1986) (observing a similar tendency in securities fraud and civil rights cases). For Clark's resistance to different pleading rules for different types of cases, see Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir. 1957) (Clark, J.) (antitrust); Clark, Special Pleading in the "Big Case," 21 F.R.D. 45 (1957).

criticisms of the rulemaking process and attempts to standardize the process); Landers, supra note 30, at 858-59, 900 (arguing for congressional class action litigation); cf. Marek v. Chesny, 105 S.Ct. 3012 (1985) (interpreting federal statutes regarding awarding attorneys fees, such that plaintiff obtains "effective" representation in a suit under 42 U.S.C. § 1983).

FN445 See Lane, Federal Equity Rules, supra note 262, at 277-79, 295-97. But apparently many lawyers initially opposed the introduction into equity cases of oral testimony in open court. See Lane, One Year, supra note 263, at 639. There is also the testimony of a representative from the patent bar who feared that extensive discovery would eliminate the advantages of trying patent cases in open court rather than through the former method of utilizing a voluminous documentary record. (His simultaneous espousal of trans-substantive procedure was, however, at odds with limiting the use of discovery in patent cases, while not limiting it in other kinds of cases.) See Advisory Committee Transcript (Oct. 22, 1936), Clark Papers, supra note 192, at Box 96, Folder 15 at 14-16 (Merrell E. Clark, Representing the Patent Section Comm. of the ABA).

FN446 See, e.g., Breckenridge, The Federal Equity Practice, 5 ILL. L. REV. 545, 548-49 (1911); Lane, Twenty Years, supra note 263, at 642-643.

FN447 See W. SCHWARZER, MANAGING ANTITRUST AND OTHER COMPLEX LITIGATION § 7- 3(A) (1982); Richey, A Modern Management Technique for Trial Courts to Improve the Quality of Justice: Requiring Direct Testimony to be Submitted in Written Form Prior to Trial, 72 Geo. L.J. 73 (1983).

FN448 See Feb. 1936 Transcript, supra note 309, at 227.

FN449 See supra text accompanying notes 210-12 & 305-09.

FN450 See Hearings on the State of the Judiciary and Access to Justice Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 4, 5 (1977) [hereinafter 1977 House Hearings] (stating that the high cost of legal service makes it counterproductive to seek legal aid to resolve minor disputes); Rosenberg, Rient & Rowe, Expenses: The Roadblock to Justice, 20 JUDGES J., Winter 1981, at 16, 17 ("There is sound evidence that the expense of litigating . . . warps the substantive law, contorts the face of justice, and, in some cases, essentially bars the courthouse door."). In 1980, a Chicago lawyer wrote, "[T]he effect [of discovery] in smaller cases may render the litigation so prohibitive as to preclude it completely. Some years ago, for example, a New York City laywer told me his firm had found that it could not FN459 See S. GOLDBERG, E. GREEN & F. SANDER, supra note 17, at 8, 9 (tables, especially the columns "Mediation" and "Negotiation" under the characteristics "Degree of Formality" and "Outcome," which point out the "informal unstructured" and nonjudicial "mutually-acceptable" outcomes reached by these dispute resolution mechanisms); see also Fuller, Mediation--Its Form and Functions, 44 S. Cal. L. Rev. 305 (1971) (supporting the proposition that mediation avoids direct application of law). Notwithstanding the drift to settlement as a goal for many judges, see supra note 17 and accompanying text, and the explicit emphasis on settlement in the Advisory Committee Note to the 1983 Amendments to Rule 16, case management can be used to help focus issues and to make application easier and better, whether at the negotiation stage or a trial. See, e.g., FED. R. CIV. P. 16(c)(1), (2), (3), (4), (5). A recent article suggests that case management is an evolutionary step in modern procedure. See Elliott, Managerial Judging and the Evolution of Procedure, 53 U. Chi. L. Rev. 306 (1986). My research, and this Article suggest, however, that the need to "case manage" is inherent in an all-equity system, because of equity's innate expansiveness and amorphousness.

FN460 I am not talking about arbitration or alternative dispute resolution mechanisms such as the mini-trial, which can take law application quite seriously. See, e.g., the tables described supra note 437, and in S. GOLDBERG, E. GREEN & F. SANDER, supra note 17, at 189-91, 271-78.

FN461 If the parties have an on-going relationship or the dispute is polycentric, mediation may make more sense than adjudication. See, e.g., Goldberg, Green & Sander, ADR Problems and Prospects: Looking to the 69 Judicature 291, 293 (citing Fuller, Forms and Limits, supra note 456).

FN462 See, e.g., Galanter, Judge As Mediator, supra note 17, at 261 (providing statistics on the overwhelming number of filed cases that settle before trial); Rubin, The Managed Calendar: Some Pragmatic Suggestions about Achieving the Just, Speedy, and Inexpensive Determination of Civil Cases in Federal Courts, 4 JUST. SYS. J. 135, 137 (1978) (stating that in 1977 92 of federal district court cases did not go to trial).

FN463 See Galanter, Judge As Mediator, supra note 17, at 257; Mnookin & Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950, 959-66 (1979) (examining the law's influence over the bargaining behavior of divorcing couples).

FN464 See Menkel-Meadow, Judges and Settlement: What Part Should Judges Play,

FN470 FED. R. CIV. P. 16; Advisory Committee's note to 1983 amendments to 1983 Amendment to FED. R. CIV. P. 16 (regarding Subdivision (b): "Scheduling and Planning").

FN471 See, e.g., Plymouth Trial Deadline Test may be Expanded, 13 MASS. LAW. WEEKLY 1, 36 (Feb. 11, 1985) (experimenting with accelerated pretrial procedures in Plymouth County, Massachusetts); Text of Proposed Case Tracking Order, 13 MASS. LAW. WEEKLY 15 (Feb. 11, 1985) (proposing a system of civil case flow management in the Superior Court of Massachusetts).

FN472 Pound, Some Principles, supra note 171, at 388.

FN473 Idaho 390.

FN474 See C. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 132-36, 141-46 (2d ed. 1947) [hereinafter C. CLARK, 1947 CODE HANDBOOK]; McCaskill, Philosophy of Pleading, supra note 30; McCaskill, Actions, supra note 15; Letter from Clark to William D. Mitchell (May 23, 1935), Clark Papers, supra note 192, at Box 108, Folder 41 (part of the correspondence during which Clark convinces Mitchell to have Clark named reporter for the soon-to-be-formed Advisory Committee to the Supreme Court, instead of Sunderland). For others who thought modern pleading reform may go too far, see E. SUNDERLAND, COMMON LAW PLEADING viii (1914); EXPERIENCE UNDER THE RULES, supra note 433, at 101, 617-51; Clark, Code Cause, supra note 146, at 836 n.37; Fee, The Lost Horizon in Pleading Under the Federal Rules of Civil Procedure, 48 Colum. L. Rev. 491 (1948).

FN475 See Clark, Code Cause, supra note 146, at 817, 821, 828-29, 837.

FN476 FED. R. CIV. P. 8(a)(2).

FN477 McCaskill, Actions, supra note 151, at 638.

FN478 Idaho 621.

FN479 Idaho 620.

FN480 Id.

FN481 Id. (quoting Clark, Code Cause, supra note 146, at 831).

FN482 Idaho 620.

FN483 Idaho 621.

FN484 See id. at 622.

FN485 Idaho 626.

FN486 Idaho 636.

FN487 Copy of manuscript of Connor Hall, p. 5 (Oct. 15, 1926) mailed to the Editor, American Bar Association Journal, requesting publication, found in Walsh Papers, supra note 283, Box 302, Legislative File 1913-1933, "Procedural Bill" ca. 1926. This manuscript was later published as Hall, Uniform Law Procedure in Federal Courts, 33 W. VA. L.Q. 131, 134 (1927).

FN488 Idaho 10, 10.

FN489 Idaho 4.

FN490 Pound, Some Principles, supra note 171, at 389.

(Aug. 22, 1919) (writing that he can "see no reason to doubt that justice would be as readily, as effectively and as inexpensively administered if the practice of the state courts in equity cases were followed in the federal courts"); Walsh Papers, supra note 283, Box 281, Judiciary File.

FN503 See Walsh, Texarkana Address, supra note 276, at 30-34.

FN504 See Letter from Walsh to Mr. and Mrs. Hutchens (Oct. 5, 1925) (concluding that it "is the habits of our bar that need reforming, not the laws under which they act"); Walsh Papers, supra note 283, Box 281, Judiciary File.

FN505 For biographical information on Walsh, see 19 DICTIONARY OF AMERICAN BIOGRAPHY 393-95 (D. Malone ed. 1936) [hereinafter AMER. BIOG.] (Thomas James Walsh); J. O'KEANE, THOMAS J. WALSH--A SENATOR FROM MONTANA (1955); TOM WALSH IN DAKOTA TERRITORY: PERSONAL CORRESPONDENCE OF SENATOR THOMAS J. WALSH AND ELINOR C. MCCLEMENTS (J. Bates ed. 1966) [hereinafter PERSONAL CORRESPONDENCE].

FN506 See 62 Cong. Rec. 8545-49 (1922); Amer. Biog., supra note 505, at 393; Personal Correspondence, supra note 505, at xv; Bates, Thomas J. Walsh: His Genius for Controversy, 19 Montana: The Magazine of Western History 11-12 (October 1969); Walsh, Recall of Judges (July 28, 1911 Address), reprinted in S. DOCNO 100, 62nd Cong., 1st Sess. 3 (1911); Letter from Everett P. Wheeler to Walsh (Feb. 11, 1916), Walsh Papers, supra note 283, Box 223, File C-I; Letter from Walsh to Everett P. Wheeler (Feb. 14, 1916), id.; Letter from Walsh to O.F. Goddard (Jan. 3, 1915) (1916 is more likely actual date), id.; Letter from C.B. Nolan to Walsh (Sept. 3, 1919), id. at Box 281, Judiciary File; Letter from Walsh to C.B. Nolan (Sept. 11, 1919), id.

FN507 See Walsh, Texarkana Address, supra note 276, at 26.

FN508 1917 SENATE REPORT, Part 2, supra note 492, at 6.

FN509 See 62 CONG. REC. 8547, 8548 (1922).

FN510 See supra notes 262, 399 and accompanying text.

FN511 Lawyers do, of course, prepare witnesses for jury trials. But this is different from trial based primarily on documentary testimony.

FN512 83 CONG. REC. 8481, 8482 (1938); see also The Rules of Civil Procedure for the District Courts of the United States, adopted by the Supreme Court of the United States pursuant to the 48 Stat 1064) and on H.R. 8892: Hearings Before the House Comm. on the Judiciary, 75th Cong., 3rd Sess. 150 (1938) (statement of Challen B. Ellis regarding Rule 16).

FN513 83 CONG. REC. 8481 (1938).

FN514 See supra text accompanying notes 236-40.

FN515 But see a portion of Shelton's testimony in 1915 that does speak about the importance of uniformity of law enforcement. 1915 Senate Hearings, supra note 198, at 14.

FN516 See supra note 431 and accompanying text.

END OF DOCUMENT