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David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision

Published online by Cambridge University Press:  28 October 2011

Stephen N. Subrin
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Extract

With current procedure under assault, this is a particularly important time to study the procedural rules and thought of David Dudley Field's era. The present espousal of such devices as case management and alternative dispute resolution is both a sign of and a reaction to a procedural regime that is in question and in decline, if not in its death throes. But before embarking on new procedural roads or recommitting ourselves to old paths, we need to reflect upon our procedural ancestry in some detail.

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Articles
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Law and History Review , Volume 6 , Issue 2 , Fall 1988 , pp. 311 - 373
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Copyright © the American Society for Legal History, Inc. 1988

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References

Notes

1. See, e.g., The Pound Conference: Perspectives on Justice in the Future (Levin, A. & Wheeler, R. eds. 1979Google Scholar) [hereinafter cited as The Pound Conference], esp. on costs and delay (e.g., Burger, 31, 35; Kirkham, 209-20), losses of privacy (e.g. Rifkind, 51, 61); failure to discourage frivolous litigation or to confine and focus litigation (e.g. Rifkind, 53, 61; Kirkham, 213); failure to define rights and obligations in an intelligible way (e.g. Rifkind, 64; Giswold, 113; Kirkham, 213); Sherman, & Kinnard, , Federal Court Discovery in the 80's—Making the Rules Work, 95 F.R.D. 245, 246Google Scholar, ns. 1, 2 (literature on discovery abuse) (1982) [hereinafter cited as Sherman & Kinnard]; McDowell, G., Equity and the Constitution 137, n. 1 (literature on judicial power and discretion) (1982)Google Scholar [hereinafter cited as McDowell]; Weinstein, J.Reform of Court Rule-Making Procedures (1977)Google Scholar; Burbank, , The Rules Enabling Act, 130 U. Pa. L. Rev. 1015, 1018–24 (1982Google Scholar) [hereinafter cited as Burbank]; Bok, , A Flawed System, Harv. Mag. 38 (1983Google Scholar); Rosenberg, , The Federal Rules After Half A Century, 36 Me. L. Rev. 243 (1984Google Scholar); Galanter, , Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. Rev. 4, 5–11Google Scholar, literature cited in ns. 1-37 (on litigiousness) (1983) [hereinafter cited as Galanter]. The Galanter article argues that most allegations of litigiousness are not supported by the evidence.

2. See, e.g., Resnik, , Managerial Judges, 96 Harv. L. Rev. 374 (1982CrossRefGoogle Scholar) [hereinafter cited as Resnik, Managerial]; Resnik, , Failing Faith, 53 U. Chi. L. Rev. 494 (1986CrossRefGoogle Scholar) [hereinafter cited as Resnik, Failing Faith]; Galanter, , The Emergence of the Judge as a Mediator in Civil Cases, 69 Judicature 257 (1986Google Scholar) [hereinafter cited as Galanter, Judge as Mediator] (the entire issue is dedicated to alternative dispute resolution and the courts); Goldberg, S., Green, E., Sander, F., Dispute Resolution (1985)Google Scholar [hereinafter cited as Goldberg, Green, and Sander].

3. See, e.g., Field, R., Kaplan, B., & Claremont, K., Materials for a Basic Course in Civil Procedure, at 18–20, 393–97 (5th ed. 1984Google Scholar); J. Cound, J. Friedenthal, A. Miller, & J. Sexton, Civil Procedure Cases and Materials, at 425-29 (Field Code). (I have used this casebook to teach civil procedure for seventeen years. If there is a paragraph of serious history on the intellectual, social, economic, or political background of the Enabling Act or the Federal Rules of Civil Procedure [other than an occasional, general paragraph about the liberalizing effect of the rules in judicial opinions or in a note or question], I have yet to find it.) (4th ed. 1985) [hereinafter cited as Cound, et al.]; James, F. & Hazard, G., Civil Procedure, at 19–21 (names of people are mentioned but without any biographical or historical background) (3d ed. 1985)Google Scholar [hereinafter cited as James & Hazard (3rd ed.)].

4. See, e.g., in addition to infra notes 7, 8, 12, F. James, Jr., Civil Procedure Sec. 2.5, at 65, 66; Sec. 2.11, at 85, 86 (1st ed. 1965) [hereinafter cited as James]; Wright, C. A., The Law of Federal Courts 436 (4th ed. 1983Google Scholar) [hereinafter cited as Wright]; Holtzoff, , Origin and Sources of the Federal Rules of Civil Procedure, 30 N.Y.U. L. Rev. 1057, esp. 1061, 1062 (1955Google Scholar) [hereinafter cited as Holtzoff]; and Clark, & Moore, , A New Federal Civil Procedure, I. The Background, 44 Yale L.J. 387, 393 (1935Google Scholar) [hereinafter cited as Clark & Moore, Background]; Clark, , The Federal Rules and State Practice (in Ten Years Under Colorado Rules, A Symposium), 23 Rocky Mtn. L. Rev. 520 (1951Google Scholar); Gavit, , The New Federal Rules and State Procedure, 25 A.B.A. J. 367 (1940Google Scholar).

5. See infra text accompanying notes 126, 127, 216-24, 227-41.

6. See, e.g., Cound, et al., supra note 3, at 430-48; Clark, Charles E., Handbook of the Law of Code Pleading, at 34–35 (2nd ed. 1947)Google Scholar; James & Hazard (3rd ed.), supra note 3, at 227 (on discovery), 465-68 (on joinder); Rosenberg, M., Weinstein, J., Smit, H., & Korn, H., Elements of Civil Procedure, at 599-600, 808-9 (3d ed. 1976).Google Scholar

7. Clark, Code Pleading and Practice Today [hereinafter cited as Clark, Code], in Field, David Dudley: Centenary Essays Celebrating One Hundred Years of Legal Reform 64 (Reppy, A. ed. 1949Google Scholar) [hereinafter cited as Centenary Essays]. Distinguishing the Field Code from the Federal Rules, Clark notes that the Code was legislation rather than court rules, and that the Federal Rules state “procedural norms to be flexibly applied in the discretion of the trial courts.” Clark's conclusion, however, stresses the continuity between the Federal Rules and the Field Code. “But these are more the modifications in execution suggested by experience than departures from the master's standards. Still do we have in essence a code—in modern form—containing detailed directions for court administration. Yet more important, these directions actually embody his principles: the complete coalescing of law and equity actions, the broad party-joinder rules of equity, and the simple informative Pleadings directed to the particular case in issue.…” But some scholars have not been misled by the stark shift in law, procedural and otherwise, from the nineteenth to twentieth century. See, e.g., Atiyah, , From Principles to Pragmatism: Changes in the Function of the Judicial Process and the Law, 65 Iowa L.R. 1249 (1980Google Scholar) [hereinafter cited as Atiyah].

8. Burger, , Rx for Justice: Modernize the Courts, Nation's Business, Sept. 1974, at 61.Google Scholar

9. See, e.g., James, supra note 4, Sec. 2.5, at 65; Clark, Code, supra note 7, at 57, 58; and Rembar, C., The Law of the Land, the Evolution of Our Legal System 236-39 (1980)Google Scholar [hereinafter cited as Rembar].

10. See, e.g., James, supra note 4, Sec. 2.6, at 66, Sec. 2.11, at 85; Clark, Code, supra note 7, at 61-63; Rembar, supra note 9, at 239-48; Clark, C., Handbook of the law of Code Pleading 47-51, 255-56, 270-73, 296-98 (1928)Google Scholar [hereinafter cited as Clark 1928 Handbook]; and 2 Moore, J., Moore's Federal Practice Sec. 1.02 (2d ed. 1984Google Scholar) [hereinafter cited as Moore].

11. See, e.g., Moore, supra note 10, Sec. 1.02; 4 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1008 [hereinafter cited as Wright & Miller]; Clark, Code, supra note 7, at 63-67; and Clark, C. E., Handbook of the law of Code Pleading 34–41 (2d. ed. 1947)Google Scholar [hereinafter cited as Clark 1947 Handbook]. The Rules Enabling Act of 1934: Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064. The present version is contained in 28 U.S.C. Sec. 2072 (1976).

12. Pound, David Dudley Field: An Appraisal, in Centenary Essays, supra note 7, at 14. See, also, Clark, Code, supra note 7, at 64-66; James, supra note 4, at 84.

13. See, e.g., Clark 1928 Handbook, supra note 10, at 44-52; Loomis, infra note 228, at 26.

14. E.g., merger of law and equity, more general, simplified rules, ease of amendment, some expansion of joinder, some limited discovery. See, e.g., infra text accompanying notes 139-89.

15. E.g., supporters of uniform federal procedural rules gave assurance that the new rules would include the best of the common law and the codes, and somehow be halfway between the two. See, e.g., Reforms in Judicial Procedure American Bar Association Bills: Hearings Before the House Comm. on the Judiciary, 63d Cong., 2d Sess. 23 (1914Google Scholar) (Statement of Thomas W. Shelton); H.R. Rep. no. 462, 63d Cong., 2d Sess. 15 (1914): “It is in order to say that the new system of rules will preserve all the merit of the common law and of the code procedure. It will occupy a middle state between the two extremes.” Edgar Tolman, secretary of the advisory committee that drafted the Fed. R. Civ. P., gave a similar assurance of continuity soon after the Rules became effective: “The effort has another objective. It is to have a system, so well selected from the best provisions of the codes of every state, that it will be a model which may command itself to the states, and may justify an approach on the part of the states to this ideal, an ideal that is not a federal invention but one that is made up from the best features of modern state practice.” Federal Rules of Civil Procedure, Proceedings of the Institute at Washington, D.C., October 6, 7, 8, 1938, at 28 [hereinafter cited as Washington & New York 1938 Institutes].

16. On modern procedure, See, e.g., Chayes, , The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976CrossRefGoogle Scholar) [hereinafter cited as Chayes]; Moore, supra note 10, at Sec. 1.02; Carrington, F. & Babcock, B., Civil Procedure 20-21 (2d ed. 1977)Google Scholar [hereinafter cited as Carrington & Babcock]; McCaskill, , The Modern Philosophy of Pleading: A Dialogue Outside the Shades, 38 A.B.A. J. 123 (1952Google Scholar); Millar, R., The Old Regime and the New in Civil Procedure (N.Y.U. School of Law Contemporary Law Pamphlets, Series 1, Number 1, 1937Google Scholar) reprinted in Millar, R., The Formative Principles of Civil Procedure (1923)Google Scholar; Subrin, , The New Era in American Civil Procedure, 67 A.B.A. J. 1648 (1981Google Scholar) [hereinafter cited as Subrin]; and Subrin, , How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987CrossRefGoogle Scholar) [hereinafter cited as Subrin, How Equity Conquered Common Law]. On contemporary law generally, See, e.g., Gilmore, G., The Death of Contract, esp. 58, 65, 87, 94–103 (1974Google Scholar); Gilmore, G., The Ages of American Law, esp. 68-98, “The Age of Anxiety” (1977)Google Scholar; Lieberman, J., The Litigious Society, esp. Ch. 1(1981)Google Scholar [hereinafter cited as Lieberman]; Fiss, , The Social and Political Foundation of Adjudication, 6 Law and Human Behavior 121 (1982CrossRefGoogle Scholar) [hereinafter cited as Fiss]; Fiss, , Foreword: The Forms of Justice, 93 Harv. L. Rev. 1 (1979CrossRefGoogle Scholar) [hereinafter cited as Fiss, Forms of Justice]; Oakes, , “A Plague of Lawyers?”: Law and the Public Interest, 2 Vt. L. Rev. 1 (1977Google Scholar) [hereinafter cited as Oakes]; Atiyah, supra note 7, at 1255-59.

17. Field, H., The Life of David Dudley Field 1–15, 337–48 (1898Google Scholar) [hereinafter cited as H. Field].

18. Nurse's comments, id. at 15. Field quote, D. D. Field, Commonplace Book, 1824-1827 [hereinafter cited as Field, Commonplace Book], Field-Musgrave Family Papers, Manuscript Department, William R. Perkins Library, Duke University [hereinafter cited as Field-Musgrave MSS.]. Other examples of self-appraisals on his birthdays: D. D. Field, My Journal, from December, 1831 to April, 1835, Feb. 13, 1832, Feb. 13, 1834, Feb. 13, 1835 [hereinafter cited as Field, Journal]; D. D. Field, Journal Continued (1836), Feb. 13, 1836 [hereinafter cited as Field, Journal Continued]; D. D. Field, Journal of Visit to Europe, 1836-1837, Feb. 13, 1837: “My birthday! I am now thirty-two years old; & how little have I done! I am ashamed of myself.” [hereinafter cited as Field, Journal of Visit to Europe]. Each of these journals is in Field-Musgrave MSS. On personality generally, See, e.g., Van Ee, D., David Dudley Field and the Reconstruction of the Law, esp. 2–7 (1974) (Unpublished Ph.D. Diss., The Johns Hopkins Univ.Google Scholar, 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) [hereinafter cited as Van Ee], citing, inter alia, D. D. Field, Recollections of My Early Life Written in the Spring of 1832 [hereinafter cited as Field, Recollections] and D. D. Field, Recollections of Myself No. 2 [hereinafter cited as Field, Recollections No. 2], both in Field-Musgrave MSS.; Hobor, The Forms of The Law: David Dudley Field and the Codification Movement in New York, 1839-1888, esp. 68, 69 (1975) (Unpublished Ph.D. Diss., U. of Chicago) [hereinafter cited as Hobor]; Martin, G., Causes and Conflicts, the Centennial History of the Association of the Bar of the City of New York 1870-1970, esp. at 87-91 (1970)Google Scholar [hereinafter cited as Martin].

19. See, e.g., Fiero, , David Dudley Field and His Work, 51 Alb. L.J. 39 (1895Google Scholar); Martin, supra note 18, esp. at 30, 55, 88, 89, 91, 106, 143 (“the state's most contentious lawyer”) and cites therein; Swisher, C. B., Stephen J. Field—Craftsman of the Law 274 (1963Google Scholar) [hereinafter cited as Swisher], and Henke, J., Lawyers and the Law in New York 96-98 (1979)Google Scholar [hereinafter cited as Henke].

20. See, e.g., Martin, supra note 18, at 92-94; Hobor, supra note 18, at 68, 69; Van Ee, supra note 18, which describes Field's prewar practice (Ch. 2, 57-112), political battles (Ch. 3, 113-61), post-Civil War practice (Ch. 4, 162-211), conduct of the Erie litigation (Ch. 5, 212-52), fights with journalists (Ch. 6, 253-310), and battle for an international code (Ch. 7, 311-39); and Martin, supra note 18, at 55-60, 87-103, 104-7, 110-19, 142-57.

21. From a letter dated Feb. 22, 1873 to Stephen J. Field, quoted in H. Field, supra note 17, at 82, 83 and Martin, supra note 18, at 156 n. 13.

22. H. Field, supra note 17, at 23, 24; Field to his father, June 25, 1819, Letters, 1739-1872, Field-Musgrave MSS., supra note 18.

23. See, e.g., Martin, supra note 18, at 89; H. Field, supra note 17, at 61, 63 (on Jonathan Field); 4 The National Cyclopaedia of American Biography 37, 38 (1898Google Scholar) (on David Josiah Brewer and his parents, Emilia Field and Rev. Josiah Brewer).

24. Field, Recollections, supra note 18, at 2, 4. See, also, Field, , The Theory of American Government, 146 N. Am. Rev. 543 (1888Google Scholar) [hereinafter cited as Field, Theory] reprinted in III Speeches, Arguments, and Miscellaneous Papers of David Dudley Field 372-88 (T. Coan ed. 1890) [hereinafter cited as 3 Field Speeches], the text accompanying notes 109-15 infra and those notes. Unless otherwise noted, citations to any of Field's works found in the three volumes of Speeches, Arguments, and Miscellaneous Papers of David Dudley Field will give the page numbers found in those volumes, rather than in the original source.

25. The bequest ends: “fidelity in every position, private or public; and the traditions of truth, justice and honor.” The quote is given in H. Field, supra note 17, at 336 and can also be found in D. D. Field, Personal Recollections [hereinafter cited as Field, Personal Recollections], Field-Musgrave MSS., supra note 18, at 45.

26. “I mixed little with the students. My habits were rather solitary. … The solitariness of my habits made me, in some small measure, misanthropic.” Field, Recollections No. 2, supra note 18, at 6. See, also, Field, Recollections, supra note 18, at 3. Obituary: New York Daily Tribune, Apr. 14, 1894, in Field-Musgrave MSS., supra note 18. Also See, e.g., Martin, supra note 18, at 88, 89, citing Strong, T., Landmarks of a Lawyer's Lifetime 420 (1914Google Scholar) [hereinafter cited as Strong]. Strong's description of Field: “Tall, erect, dignified in bearing, of extensive learning and unquestioned ability, there was also something cold and repellent in his demeanor, and although his manner was polished and elegant, he lacked every element of sympathy and magnetism, and his distinguished achievements and successes were not because of an outwardly attractive presence and manner but in spite of them.”

27. See, e.g., H. Field, supra note 17, at 30 and Van Ee, supra note 18, at 9, 10, which cites Field to his father, Nov. 7, 1821; May 1, 1822; and Oct. 10, 1825, and Field to Emiliar [sic] Field, Apr. 1824, Field-Musgrave MSS. (supra note 18).

28. Field, Recollections No. 2, supra note 18, at 2 1/2. See also Field, Magnitude and Importance of Legal Science (address at the opening of the Law School of the University of Chicago, Sept. 21,1859) [hereinafter cited as Field, Legal Science] reprinted in 1 Speeches, Arguments, and Miscellaneous Papers of David Dudley Field, at 517-33, described infra in text accompanying notes 129-31. (A. Sprague ed. 1884) [hereinafter cited as Field Speeches]. According to his brother, Henry, Field gave $25,000 to endow a professorship of astronomy at Williams, out of interest in the subject and personal regard for Albert Hopkins, a professor of astronomy. H. Field, supra note 17, at 29.

29. See, e.g., supra notes 20-21 (on offending people and carrying on fights). Quote on mathematics: Field, Recollections No. 2, supra note 18, at 2 1/2.

30. H. Field, supra note 17, at 38 (marriage was on Oct. 26, 1829).

31. Field, Journal Continued, supra note 18, at 2, 11. On wife's death, daughter Isabella's death, and Field's despair, See, e.g.. Field, Journal Continued, supra note 18, which ends: “There seems little for me in this world, but to train up well the dear children that are left me, and to prepare to meet them all in a world, where there is no more pain nor sorrow” (Apr. 7, 1836). Also, see, Field to his son, D. David Field, Feb. 13, 1836, in Field-Musgrave MSS., supra note 18; Field, Journal of Visit to Europe, supra note 18, esp. May 13, Sept. 12, Oct. 26, Nov. 21, 1836; Jan. 1, Jan. 21, 1837. The Family Tree (in a box that includes Genealogy), Field-Musgrave MSS., supra note 18, shows Field's brother, Timothy Beals, born on May 21, 1809, and dead “at sea” in 1836.

32. See Van Ee, supra note 18, at 16-18 and H. Field, supra note 17, at 34-41.

33. On relatives associated with Field's office, See, e.g., Swisher, supra note 19, at 21-24; H. Field, supra note 17, at 61; Van Ee, supra note 18, at 216; and 1 The National Cyclopaedia of American Bibliography 37 (1898Google Scholar) (on David Brewer). Some of Field's improved circumstances were probably attributable to his second marriage to a wealthy widow. Swisher, supra note 19, at 23. For a detailed account of Field's prewar practice, see Van Ee, supra note 18, at 57-112.

34. D. D. Field, Notes For My Autobiography 2 [hereinafter cited as Field, Notes For My Autobiography], in Field-Musgrave Mss, supra note 18. Also see Field, Personal Recollections, supra note 25, at 3; 2 Earle, E. K., Shearman and Sterling, 1873-1973 8, 9 (1973)Google Scholar [hereinafter cited as Earle].

35. Van Ee describes the shift of Field's practice to more lucrative clients after the Civil War, but also explains that before the War Field represented the business interests of his successful brother, Cyrus. See Van Ee, supra note 18, at 57-112; 212-52. On Field's representation of Fisk, Gould, and Tweed, See, e.g., Martin, supra note 18, at 4-15, 29-30, 66, 67, 105-19; Van Ee, supra note 18, at 218-52, 293-310.

36. See, e.g., Letter of David Dudley Field to Samuel Bowles, Jan. 5, 1871, reprinted in The Lawyer and His Clients, the Rights and Duties of Lawyers, the Rights and Duties of the Press; the Opinions of the Public, Correspondence of Messrs. David Dudley and Dudley Field, of the New York Bar, with Mr. Samuel Bowles of the Springfield Republican, which includes letters written in 1870 and 1871 [hereinafter cited as Field-Bowles Correspondence] (Dudley Field was Field's son, who practiced law with his father. In May 1868, Thomas Gaskell Shearman was admitted into full partnership with the Fields and the firm became Field & Shearman. John W. Sterling became a partner in 1869. Field left his law practice in 1873. Shearman and Sterling then formed their own firm. Earle, supra note 34, at 10, 18, 19 (1973)); Field's Dec. 10, 1872 defense of himself before the Bar Assn. of the City of New York, reprinted in part in Martin, supra note 18, at 92-98, evidently taken from an account in the New York Herald, Dec. 11, 1872: “Then it was charged, and that was the burthen of the controversy with Bowles, that two of my clients were bad men.… Now, whether it was proper for me to try the characters of my clients before trying their causes is a question I leave to those members of the association who have refused such retainers or taken only retainers of saints.” But, cf, Field, Study and Practice of the Law, Democratic Review (April 1844) [hereinafter cited as Field, Study and Practice], reprinted in Field Speeches, supra note 28, at 489; Field, Reform in the Legal Profession and the Laws (Address to the graduating class of the Albany Law School, March 23, 1855), reprinted in Field Speeches, supra note 28, at 494-514 [hereinafter cited as Field, Reform in Legal Profession].

37. See, e.g., H. Field, supra note 17, at 41, 46; Van Ee, supra note 18, at 21, 28; and Cook, C., The American Codification Movement: A Study of Antebellum Legal Reform 186 (1981Google Scholar) [hereinafter cited as Cook], Field's first public effort at procedural reform was a Dec. 26, 1839 letter to New York State Senator, Gulian C. Verplanck (also “a minor American literary figure,” Cook, at 186) [hereinafter cited as Field, Letter to Verplanck], reprinted in part in Field Speeches, supra note 28, at 219-23.

38. Cook, supra note 37, at 143-53.

39. Id., at 185, 186.

40. N.Y. Const, of 1846, Art. XIV, Sec. 5, Art. VI, Sec. 3.

41. N.Y. Const, of 1846, Art. VI, Sec. 27.

42. See, e.g., H. Field, supra note 17, at 46-49; Cook, supra note 37, at 189-91, and D. D. Field, A Third of a Century Given to Law Reform, 2-4 in Field-Musgrave MSS., supra note 18 [hereinafter cited as Field, A Third of A Century].

43. H. Field, supra note 17, at 49; Cook, supra note 37, at 190, 191. For accounts of the appointment of the initial “Commissioners on Practice and Pleadings” and of Field's succession to Nicholas Hill as a commissioner, see Hobor, supra note 18, at 200-16, and Loomis, infra note 228, at 13-17.

44. N.Y. Const, of 1846, Art. I, Sec. 17.

45. See, e.g., Cook, supra note 37, at 194-96. For a detailed description of the failure of the original Code Commission and its demise in 1850, see Hobor, supra note 18, at 205, 212, 213, 219-22, 230-32, 247-52, 260-63. For Field's role in restoring the Code Commission and having himself and the other commissioners appointed, see Hobor, supra note 18, at 277-85.

46. Cook, supra note 37, at 196. On the part played by Field, See, e.g., H. Field, supra note 17, 76-83; Hobor, supra note 18, at 286-300.

47. Cook, supra note 37, at 196-98. California, the Dakotas, Idaho, and Montana adopted large portions of the substantive codes. Id., at 198.

48. (1848) N.Y. Laws, c. 379 (71st Sess., April 12, 1848) [hereinafter cited as 1848 Field Code]. On Field's role, see Loomis, infra note 228, esp. 17-23. H. Field, supra note 17, at 46-52; and Hobor, supra note 18, at 218. An 1842 letter from Field to John L. O'sullivan, a member of the New York Assembly, accompanying three bills Field had drafted, contemplated separate courts of law and equity; many of his procedural concepts in this letter and the bills were included, though, in the 1848 Field Code (e.g. abolition of common-law forms of action, brief complaint, fewer Pleadings, testimony in equity court to be oral, abolition of statutory fees restricting amount lawyers could charge). A summary of reforms suggested by Field in 1842 is given in Hobor, supra note 18, at 103-12. The letter is reprinted in part in Field Speeches, supra note 29, at 223-26 [hereinafter cited as Field, Letter to O'sullivan]. Loomis implicitly discounts the importance of Field's 1842 proposals on the grounds of their late arrival and their substantial duplication with his own proposals. Loomis was in the New York legislature in 1842 and was chairman of the Committee on the Judiciary in the Assembly. He became a delegate from Herkimer County to the 1846 New York constitutional convention. Loomis, infra note 228, at 7, 8, 12. For the draft bills, see New York State Assembly Documents, Doc. no. 81, at 62 (1842Google Scholar). The 1848 Report (infra note 56) that accompanied the partial procedural code presented to the New York legislature was probably drafted by Commissioner David Graham.

49. Loomis, infra note 228, at 17, 22, 23.

50. Id. at 22.

51. Commissioners on Practice and Pleadings, the Code of Civil Procedure of the State of New York, Reported Complete (1850)Google Scholar [hereinafter cited as 1850 New York Procedural Code]. See, e.g., Cook, supra note 37, at 194; Hobor, supra note 18, at 252-60.

52. On pre-Field codification and codifiers, see Cook, supra note 37, esp. at 86, 87, 96-198. “Field's importance as a codifier derives in good measure from his relentless, but what became his almost solitary, promotion of codification throughout most of his professional career.” Cook, supra note 37, at 18. See, also, H. Field, supra note 17, at 50-52.

53. On Field's knowledge of Livingston, E., Report of a Civil Code (1825)Google Scholar and Sampson, W., An Anniversary Discourse Delivered Before the Historical Society of New York, on Sat., Dec. 6, 1823Google Scholar; Showing the Origin, Progress, Antiquities, Curiousities, and Nature of the Common Law (1824)Google Scholar [hereinafter cited as Sampson], see Field, A Third of a Century, supra note 42, at 1. H. Sedgwick had reviewed Sampson's speech in The Common Law, 19 N. Am. Rev. 411–39 (1824Google Scholar).

54. See Sampson, supra note 53.

55. Field, Journal of Visit to Europe (Nov. 4, 1836), supra note 18, at 121. Von Savigny criticized the codification of law at too early a time in the nation's history. Savigny, F., of the Vocation of Our Age for Legislation and Jurisprudence (1831).Google Scholar Field also wrote in his journal about the statutory law of Denmark. Field, Journal of Visit to Europe (July 20, 1836), supra note 18, at 54.

56. See, e.g.. State of New York First Report of the Commissioners on Practice and Pleadings, Code of Procedure, at 70-71, 80-81, 89-90, 139-41, 144-45 (1848) [hereinafter cited as 1848 Report]; Field, What Shall Be Done with the Practice of the Courts?, at 226-60 (eassy, pub. Jan 1, 1847) [hereinafter cited as Field, What Shall Be Done?]. On erosion of common law prior to Field, See, e.g., S. Milsom, Historical Foundations of the Common Law 247-52 (1969) [hereinafter cited as Milson]; Plucknett, T., A Concise History of the Common Law 414, 415 (5th ed. 1956Google Scholar) [hereinafter cited as Plucknett]; Nelson, W., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830, at 77–88 (1975)Google Scholar [hereinafter cited as Nelson]; 1 The Adams Papers—Legal Papers of John Adams 28, 29 (Wroth, L. & Zobel, H. eds. 1968Google Scholar); Friedman, L., A History of American Law 128-29 (1973)Google Scholar [hereinafter cited as Friedman]; Rembar, supra note 9, at 207-23.

57. See, e.g., Field, What Shall Be Done?, supra note 56, at 235-37.

58. See, e.g., 1848 Report, supra note 56, at 73-75.

59. For Bentham's attacks on common law, customary law, and judge-made law and his support of legislation, See, e.g., Bentham, J., A Comment on the Commentaries 186-99 (1934 ed.)Google Scholar; Bentham, J., The Handbook of Political Fallacies 74–75 (1962 ed.)Google Scholar; Bentham, J., The Limits of Jurisprudence Defined 274-84 (1945 ed.)Google Scholar; Bentham, Bentham's Letter, Letter IV, reprinted in Codification of the Common Law, Letter of Jeremy Bentham and Report of Judges Story, Metcalf and Others 3, 4 (1882Google Scholar) [hereinafter cited as Codification (Bentham and Story)]: “Would you wish to know what a law—a real law—is? Open the statute book—in every statute you have a real law; behold in that the really existing object, the genuine object, of which the counterfeit, and pretended counterpart, is endeavored to be put off upon you by a lawyer, as often as in any discourse of his the word Common Law is to be found.” On the commissioners' admiration of Bentham's Rationale of Judicial Evidence, which they called the “most profound and original work ever written upon this subject,” see 1850 New York Procedural Code, supra note 51, at 694, 695.

60. Subrin, How Equity Conquered Common Law, supra note 16, at 945-48, 950-51, 956-61, 962-73.

61. On Field's political involvement, See, e.g., H. Field, supra note 17, at 108-20; Van Ee, supra note 18, at 113-61; and Hobor, supra note 18, at 96-98. On his opposition to the extension of slavery, See, e.g., Field, The Political Questions of 1844 to 1848 (A sketch of the April 1844 speech at the Broadway Tabernacle) reprinted in 3 Field Speeches, supra note 24, at 1, 11; Field, Free Soil, Free Speech, Free Men (address before the Democratic Republican State Convention at Syracuse, July 24, 1856) reprinted in 3 Field Speeches, supra note 24, at 45, 47.

62. D. D. Field and J. L. Field (Field's daughter), Reform, The Bond Street Gazette, Mar. 5, 1842, in Field-Musgrave MSS., supra note 18 under “Miscellany.” (The children's second article is providently entitled “Mistakes in punctuation, orthography, etc.”) See, also, Schlesinger, Jr., The Age of Jackson 332, 333 (1945Google Scholar) [hereinafter cited as Schlesinger, jr.]. The Enabling Act and the Federal Rules of Civil Procedure became law during the New Deal, another period of urgent calls for reform.

63. See, e.g., Cook, supra note 37, at 188-90. In a petition Field drafted to the New York legislature, he and others called for “a radical reform of legal Procedure.” Memorial of Members of the Bar in the City of New York, relative to legal reform, Feb. 9, 1847, New York Assembly Documents, 2 Documents of the Assembly, Doc. No. 48 (1847Google Scholar), reprinted in Field Speeches, supra note 29, at 261 [hereinafter cited as Field, Memorial].

64. See, e.g., Field, Reasons for the Adoption of the Codes (substance of address before the Judiciary Committee of the two Houses of the Legislature, at Albany, on Feb. 19, 1873) [hereinafter cited as Field, Reasons for Adoption], reprinted in Field Speeches, supra note 28, at 361, 368, 372; Field, The Codes of New York and Codification in General (address to Buffalo law students, Feb. 6, 1879) [hereinafter cited as Field, The Codes of New York], reprinted in Field Speeches, supra note 28, at 374, 377; First Report of the Code Commissioners, Feb. 27, 1858 [hereinafter cited as Code Commissioner's First Report], reprinted in Field Speeches, supra note 28, 309, at 313; and Final Report of the Code Commission, Feb. 13, 1865 [hereinafter cited as Code Commissioners' Final Report], reprinted in Field Speeches, supra note 28, at 317, 322.

65. Field, Theory, supra note 24, at 376. See, also, e.g., Field, The Political Writings of William Leggett, N.Y. REV. (Apr., 1841), reprinted in 2 Speeches, Arguments, and Miscellaneous Papers of David Dudley Field 209, 216, 218 (A. Sprague ed. 1884) [hereinafter cited as 2 Field Speeches]. On importance of “equality of opportunity” theme in New York during the 1830s, See, e.g., Miller, D., Jacksonian Aristocracy, Class and Democracy in New York, 1830-1860, at 3–25 (Ch. 1, Equality) (1967)Google Scholar [hereinafter cited as D. Miller].

66. Rabkin, , The Origins of Law Reform: The Social Significance of the Nineteenth Century Codification Movement and Its Early Contribution to the Passage of the Early Married Women's Property Acts, 24 Buffalo L. Rev. 683, 714 (1974Google Scholar) [hereinafter cited as Rabkin].

67. Field thought he was a preserver of the common law and traditional values. See, e.g., H. Field, supra note 17, at 42, 43. He also thought, though, that some changes in the law should be made during codification, but “[t]hey should, without doubt, be cautiously admitted.” Code Commissioners' First Report, supra note 64, at ill. Also: “We are satisfied that this work should be performed with delicacy, caution and discrimination, that nothing should be touched from the mere desire of change, or without great probability of solid advantage” (id. at 312). Such statements probably are made, in part, to reassure the audience—legislators, lawyers, and the public—that the proposed Codes will not be radical or unsettling, and will not require relearning the law. Notwithstanding this, Field was consistent in not wanting to change a great deal of the substantive law as he found it in the decisions. Field mentions three “major” alterations of the law in his introduction to the completed Civil Code. They relate to intestate succession, real estate transfer, and adoptive parents. Commissioners of the Code, The Civil Code of the State of New York, xxxi (1865Google Scholar).

68. It is problematic, however, whether codification had the breadth of support sufficient to call it a movement. See Gordon, Book Review (reviewing Cook, supra note 37) 36 Vand. L. Rev. 431, 433–36 (1983Google Scholar) [hereinafter cited as Gordon].

69. See, e.g., Cook, supra note 37, at 158-62; The Golden Age of American Law 99–210 (C. Haar ed. 1965)Google Scholar [hereinafter cited as Golden Age of AMerican Law]; and Bloomfield, M., American Lawyers in a Changing Society, 1776-1876 at 84, 85 (1976)Google Scholar [hereinafter cited as Bloomfield, American Lawyers].

70. See, e.g., Field, Study and Practice, supra note 36; Field, , Responsibility of American Lawyers for the Government of Their Country (address to the graduating class of the Albany Law School, May 15, 1875Google Scholar), reprinted in Field Speeches, supra note 28, at 562; Field, , The Law and the Legal Profession (dinner of the Mercantile Library Association in New York, November 1874Google Scholar), reprinted in Field Speeches, supra note 28, at 539, 540-41. William Sampson, an earlier codification advocate (supra note 53), and others who favored codification in the 1830s, also rejected the “every man his own lawyer” theme, and looked to legal experts to draft Codes. See, e.g., Bloomfield, American Lawyers, supra note 69, at 76-81.

71. Field, , A Short Response to a Long Discourse. An Answer to Mr. James C. Carter's Pamphlet on the Proposed Codification of Our Common Law, 29 Alb. L.J. 127, 129 (1884Google Scholar) [hereinafter cited as Field, Answer to Carter] (referring to Carter, J. C., The Proposed Codification of Our Common Law. A Paper Prepared at the Request of the Comm. of the Bar Assn. of the City of N.Y., Appointed to Oppose the Measure (1884)Google Scholar [hereinafter cited as Carter]). See, also, Loomis, infra note 228, at 6: “Many of the better class of the profession appreciated the justness of the criticisms.”

72. See, e.g., H. Field, supra note 17, at 41; Encyclopedia of American History 213, 746, 747 (Morris, R. ed. 1976Google Scholar); D. Miller, supra note 65, at 128, 129. On Field's embarrassment, see Field, Notes For My Autobiography, supra note 34, at 2. “Returning to America in July, 1837, I found the country in a financial collapse, and my property, which had been mortgaged before I left the country, had so fallen in price that it was difficult to sell for enough to meet the mortgage. This embarrased me for several years. But I entered at once into the practice of my profession, and by degrees reinstated myself financially.”

73. See, e.g., Pessen, , The Working Men's Party Revisited, at 4 LH (1963Google Scholar) reprinted in Essays on Jacksonian America (F. O. Gatell ed. 1970), at 178 (bibliography), 185, 188, 192; Syms, L. & Clement, T., Rebel America the Story of Social Revolt in the United States 9, 38-50, 78–91 (1972, originally published in 1934)Google Scholar; Schlesinger, Jr., supra note 62, at 159-266.

74. See, e.g., D. Ellis, Landlords and Farmers in the Hudson-Mohawk Region, 1790-1850, esp. ch. 7 (The Antirent Movement, 1839-1846) and 8 (Antirentism in Politics) [hereinafter cited as Ellis]; Lincoln, C., 2 Constitutional History of New York 10–27(1906)Google Scholar [hereinafter cited as Lincoln]; Henke, supra note 19, at 79-83. “An eminent historian declares that the antirent crusade coming at that particular time gave the final push to the public pressure for a constitutional convention.” Ellis, at 277, 278, citing Cheyney, The Antirent Movement and the Constitution of 1846, in Flick, 6 History of New York 308 ff. (1933). For labor unrest and labor organizing during the 1830s until approximately the end of 1837, see D. Miller, supra note 65, at 26-55, 128-29: “General economic distress caused a growing class consciousness on the part of New York workers, while at the same time respectable persons feared the possibility of class warfare” (129).

75. Henke, supra note 19, at 79.

76. A traditional lawyer's response to criticism of the profession, law, or the economic order has been to focus on technical and procedural agendas. See, e.g., Gordon, supra note 68, esp. at 438-39; Friedman, supra note 56, at 354-55; Friedman, , Law Reform in Historical Perspective, 13 St. Louis U. L.J. 351 (1969Google Scholar): “But what is significant about American ‘reform’ is that it is not revolutionary…. No torchlight parades ever demanded the union of law and equity.” Although, “court reform can be one way to seize the courts and turn them over to new masters” (355).

77. Field, Letter to Verplanck, supra note 37, at 219, 220. Field called his suggestions “radical.” See, e.g., Field, What Shall Be Done?, supra note 56, at 227, 229; Field, Memorial, supra note 63, at 85.

78. Such an argument was also used by twentieth-century procedural reformers. See, e.g., Taft, The Attacks on the Courts and Legal Procedure (Delivered at Cincinnati Law School Commencement, May 23, 1914), reprinted in 5 KY. L. J. 3, at 24 (Nov., 1916) (last paragraph); Report of the Comm. on Uniform Judicial Procedure (Shelton, T.W., Ch.), 40 A.B.A. Rep. 502, 503 (1915Google Scholar): “It became manifest that the lawyers must modernize the machinery of the courts or it would be done by some less competent agency.”; Shelton, T., The Spirit of the Courts 98–99 (1918)Google Scholar [hereinafter cited as Shelton, Spirit]; Comm. of Nine, Phi Delta Phi Club of New York City (H.W. Jessup, Ch.), The Simplification of the Machinery of Justice With a View to Its Greater Efficiency, LXXII, The Annals of the American Academy of Political and Social Science 1, at 6, 7 (1917Google Scholar): “As an alternative, we must be satisfied to have our system of jurisprudence seized upon and dissected in the laboratory of the doctrinaire, or the 'social reformer,’ often unsympathetic with the value and influence of precedent….; Procedure in the Federal Courts: Hearing Before House Comm. on the Judic. on H.R. 2377 and H.R. 90, 67th Cong., 2d Sess. 28 (1922Google Scholar) (statement of T.W. Shelton): “I want to suggest that one of the great criticisms of our present system is that it is utterly impossible for a client, in many instances, when his case is thrown out on a technicality to understand why. That is an important thing. As I said over in the Senate the other day, when arguing this matter, this is one of the things that is making Bolshevists in this country….”; Cummings, Statement of the Atty. Genl. Before Subcomm. No. 2 of the Comm. on the Judiciary of the House of Reps., re. Rules of Civ. Pro. for the Dist. Cts. of the U.S. Promulgated by the Sup. Ct., and re. H. R. 8892 [hereinafter cited as Cummings, On H. R. 8892], in Papers of Homer S. Cummings (No. 9973), Manuscripts Department, University of Virginia Library, Box No. 103, at 4: “Unless we lawyers clean our own house, the rest of the people will do it for us” [hereinafter cited as Cummings Papers]. As Professor Stephen Burbank has suggested, one is uncertain whether the bar leadership in these instances really fears the worst, or is merely using a rhetorical device to drum up support for a procedural change they want, or some of both.

79. Field, Letter to Verplanck, supra note 37, at 223. See, also, Field, What Shall Be Done?, supra note 56, at 227, 229.

80. See, e.g., Miller, P., The Life of the Mind in America: From the Revolution to the Civil War 156-64 (1965)Google Scholar [hereinafter cited as P. Miller]; Horwitz, M., The Transformation of American Law, 1780-1860, at 257–258 (1977)Google Scholar [hereinafter cited as Horwitz] Twentieth-century procedural reformers such as Roscoe Pound and Thomas Shelton consistently wrote about law as if it were a science. See, e.g., Pound, The Causes, infra note 221, at 181; and Shelton, Spirit, supra note 78, at xx, xxix, 33, 51, 63, 124, and 135: “The law is a science, and the administration of it is a highly technical governmental function.” It is difficult to know what reformers mean by the “law as science” rhetoric. During the nineteenth century, particularly in the debate over codification, “science” may mean the arranging of law in some order. See, e.g., Fowler, R., Codification of the State of New York 43 (1884Google Scholar): “Science is most commonly referable to a body of knowledge arranged in an orderly manner.” In this article, however, I am suggesting that Field was also attracted to the predictability and controlled variables aspects of science.

81. Field-Bowles Correspondence, supra note 36, at 2 (for quotes from editorial). The series of letters was written in 1870 and 1871.

82. Id. at 9 (Letter of Field to Samuel Bowles, Jan. 5, 1871). Cf. Field, Study and Practice, supra note 36, at 489; and Field, Reform in Legal Profession, supra note 36, at 494, 497-98, for a somewhat more community-oriented and, perhaps, loftier vision of the legal profession.

83. See, e.g., Hobor, supra note 18, at 56.

84. N.Y. Rev. Stat. (2d ed. 1836), Part III, Ch. X, Title 3, Sec. 18. For a description of the system in operation, see Hobor, supra note 18, at 54-59. “By the 1820s and 1830s, courts were recognizing vast discrepancies between costs awards and usual fees.” (Citations omitted.) Leubsdorf, , Toward A History of the American Rule on Attorney Fee Recovery, 47 Law & Contemp. Probs. 9, 13, 14 (1984Google Scholar) [hereinafter cited as Leubsdorf].

85. Hobor, supra note 18, at 59-64, citing, inter alia, Loomis, infra note 228, at 6, and Hastings, H., An Essay of Constitutional Reform 28 (1846Google Scholar) [hereinafter cited as Hastings].

86. Loomis, infra note 228, at 5.

87. Id. at 5-7.

88. Id. at 7, 8.

89. Field, Study and Practice, supra note 36, at 485.

90. New York (State), Assembly Documents, NO. 81, at 57 (1842), cited in Hobor, supra note 18, at 108.

91. Field, Letter to O'sullivan, supra note 48, at 225.

92. Hobor, supra note 18, at 236-40, 253, 254, 256. Hobor cites an 1849 majority legislative committee report that suggests that the Field Code caused higher fees (Report of the Committee on the Judiciary, on the Bill to continue in office the Commissioners on Practice and Pleading, 2 Assembly Documents, Doc. 47, at 4, 15, 16 [1849Google Scholar]), and the minority Report, which he finds more creditable, that suggests “its tendency to lessen the fees of attorneys” (Minority Report of the Committee on the Judiciary, on the bill providing for the continuance in office of the present commissioners on “practice and Pleadings,” 2 Assembly Documents, Doc. 51, at 12 [1849Google Scholar]).

93. 1848 Field Code, supra note 48, Sees. 258-64. “We shall thus provide an indemnity approaching, in a degree, the amount which the client will have to pay to his attorney and counsel.” (1848 Report supra note 56, at 207)

94. On Field's and his son, Dudley's, fees, See, e.g., Van Ee, supra note 18, at 251, 252, and text a ccompanying note 34, supra.

95. Many informed commentators have found the period from approximately 1820 to 1860 pivotal in American legal history. See, e.g., Pound, R., The Formative Era of American Law (1938)Google Scholar [hereinafter cited as Pound, The Formative Era] and Golden Age of American Law, supra note 69. Professor Horwitz finds important conceptual changes during an earlier period as well. Horwitz, supra note 80. For critiques of some aspects of Horwitz, supra note 80, including the degree of transformation of American law and the class-based analysis, See, e.g., Genovese, , Book Review, 91 Harv. L. Rev. 726 and the citations in n. 4 (726) and at 729, 730 (1978Google Scholar); Schwartz, , Tort Law and the Economy in Nineteenth Century America: A Reinterpretation, 90 Yale L.J. 1717, 1718–21 (1981Google Scholar); and McClain, , Legal Change and Class Interests: A Review Essay on Morton Horwitz' The Transformation of American Law, 68 Calif. L. Rev. 382, esp. at 394–95 (1980Google Scholar).

96. The term “entrepreneurial and commercial groups” is from Horwitz, supra note 80, e.g. at xvi. Professor Horwitz sees the transformation in terms of meeting the needs of these emerging groups. “By the middle of the nineteenth century the legal system had been reshaped to the advantage of men of commerce and industry at the expense of fanners, workers, consumers, and other less powerful groups within the society.” (Id. at 253, 254) See, also, Friedman, L., Contract Law in America 20–24 (1965)Google Scholar.

97. See, e.g., Rabkin, supra note 66, at 686. “[T]he American codification movement sought, among other things, to defeudalize the law of property in order that it conform to a commercial economy, and … this movement to reform property law had ramifications in other branches of law as well.” For a summary of how the Civil Code sought to alter trust law to the detriment of the public in the view of one writer who protested codification, see G. Adams, The “Trusts” and the Civil Code: An Examination of the Provisions of the Proposed Civil Code as Affecting 'Trusts,’ or Trust Combinations in Business, Comm. on the Code of the Assn. of the Bar of City of New York (Mar. 8, 1888). For assertions of how the Civil Code favored corporations, see Rives, G., Torts Under the Code. An Examination into the Provisions of the Proposed Civil Code Relating to the Laws of Torts, with an Enquiry into the Effect of the Code Upon Litigation Against the Elevated Railways 19, 21-24, 32 (1885Google Scholar) (Printed by Direction of the Comm. on the Code of the Assn. of the Bar of the City of New York) [hereinafter cited as Rives].

98. Sedgwick, , Law Reform, 3 Western L. J. 151 (1846Google Scholar), cited in Cook, supra note 37, at 187. See, also, Hepburn, C.M., The Historical Development of Code Pleading in America and England Pleading 18 (1897Google Scholar) [hereinafter cited as Hepburn].

99. See Horwitz, supra note 80, at 253-66.

100. The term “treatise tradition” is from Horwitz, supra note 80, at 257. Professor G. Edward White puts it this way: “The treatises constituted an American version of small Codes. They were not, technically, regarded as ‘authorities’ in the same sense as were decisions of courts or statutes, but at a time when other published resources were scarce, they became for countless practitioners the starting points for research…. [T]he writings of Kent and Story, ostensibly collections of and glosses on the ‘authorities,’ became authoritative in themselves.” White, G., The American Judicial Tradition 46 (1976Google Scholar) [hereinafter cited as White, American Judicial Tradition]. See, also, Pound, The Formative Era, supra note 95, at 149-51.

101. Horwitz, supra note 80, at 253-66. These pages comprise a chapter entitled The Rise of Legal Formalism. Field, however, was too much of a realist and a believer in progress to believe that law would or should never change, notwithstanding his conviction about the importance of certainty in law. See, e.g., Field, , Improvements in the Law, 22 N. Amer. L. Rev. 59 (1881Google Scholar); Field, Duty of the Lawyer to Improve Law, Address to the Yale Kent Club, New Haven, Conn. (April 19, 1887), in 3 Field Speeches, supra note 24, at 259. In the 1850 New York Procedural Code, supra note 51, at iv, the commissioners said their goal was a “middle path between a judicial discretion, too wide for safety on the one hand, and too narrow for convenience on the other….” Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865 (U.S. 1842) was decided during the period that Field commenced his reform activities. It permitted Federal judges to create a Federal commercial law when there was not a state statute in point. In 1847, judges of the New York Supreme Court and New York Court of Appeals first became subject to election by the public at large. N.Y. Laws 1847, c. 276 (Act of May 12, 1847). It is tempting to argue that by trying to place all of state law in statutes, Field was attempting to reduce judicial interference with the law by Federal judges, under Swift v. Tyson, or by state judges, who would now be elected. Although Swift v. Tyson was appealed from the Circuit Court of the Southern District of New York, and involved disregarding New York decisional law, I do not know when Field became aware of the case, or whether it influenced him in that manner. At the time it was decided, Swift v. Tyson may not have been considered so important as it appeared to some later commentators. Fletcher, , The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1514 (1984Google Scholar). At some point, Field did become aware of the case. In behalf of a client, he tried to extend the boundary for Federal judicial law-making under Swift v. Tyson (see Van Ee, supra note 18, at 67, 68), but his political views were firmly against extensions of Federal power to the detriment of state sovereignty. See, e.g., Field, , Centralization in the Federal Government, 132 N. Amer. Rev. 420, 421, 426 (1881Google Scholar) [hereinafter cited as Field, Centralization], reprinted in 2 Field Speeches, supra note 65, at 185. It is also problematic whether the electionc of state judges would have motivated Field to codify. He favored codification by an elected legislature.

102. See infra text accompanying note 106.

103. See, e.g.: Pound's first principle of procedural reform: “It should be for the court, in its discretion, not the parties, to vindicate rules of Procedure intended solely to provide for the orderly dispatch of business, saving of public time, and maintenance of the dignity of tribunals; and such discretion should be reviewable only for abuse.” (Emphasis in original.) Pound, , Some Principles of Procedural Reform, 4 ILL. L. Rev. 388, 402 (1910Google Scholar) [hereinafter cited as Pound, Some Principles]. Clark 1928 Handbook, supra note 10, at 31: “The rules of practice should simply point out the purpose to be subserved, leaving the application thereof to the discretion of the trial judge.” (The bold lettering is Clark's, as part of the “black-letter” law.) (See, also, Clark's criticism of the lack of flexibility under the Field Code, id. at 34.) Clark, & Moore, , A New Federal Civil Procedure II. Pleadings and Parties, 44 Yale L.J. 1323 (1935Google Scholar): “In fact if the vital provisions for a completely united Procedure with clear specifications as to jury trials and waiver thereof are adopted, and if flexible rules as to Pleadings and parties, leaving much to the discretion of the trial court, are drafted, we feel that the reform is assured of success, whatever the detailed provisions may be.” On creative opportunities under the Federal Rules, see note 16, supra.

104. See, e.g., Bloomfield, American Lawyers, supra note 69, at 63, 64 (on William Sampson).

105. Rantoul, Oration at Scituate, July 4, 1836, in Rantoul, R. Jr., Memoirs, Speeches and Writings 251, 278, 279 (Hamilton, L. ed. 1854Google Scholar).

106. The first two quotes are from Introduction to the Completed Civil Code (1865) [hereinafter cited as Introduction, Civil Code], reprinted in Field Speeches, supra note 28, at 323, 330, 331. The third quote is from Codification of the Law (correspondence between the California Bar and Field, Nov. 28, 1870) [hereinafter cited as Field, Cones, to Cal. Bar], reprinted in Field Speeches, supra note 28, at 349, 354. The fourth quote is from Field, , Mr. Field On the Codes, 7 Alb. L.J. 193, 196 (1876Google Scholar). In a defense of codification, Field cited to the well known Massachusetts Report on Codification (1836) by Judges Story, Metcalf, and others (reprinted in Codification [Bentham and Story], supra note 59), which emphasized “certainty, clearness, and facility of reference” as benefits of partial codification. Field, D.D., Answer to the Report of the New York City Bar Association Against the Civil Code by the Surviving Code Commissioner 19 (1881Google Scholar). See, also, Rabkin, supra note 66, at 712, 713. But cf. Loomis, infra note 228, at 25, to the effect that the Commissioners on Practice and Pleading used “little detail, allowing to the Courts freedom of construction and application, as the administration of justice might require.”

107. See, e.g., infra text accompanying notes 215-44; Subrin, How Equity Conquered Common Law, supra note 16, at 965-70.

108. Cummingsv. Missouri, 71 U.S. 277 (1866); Ex Parte Milligan, 71 U.S. 2(1866); Ex Parte McCardle, 73 U.S. 318 (1868); U.S. v. Cruikshank, 92 U.S. 542 (1875). Field's arguments before the Supreme Court in these cases are reprinted as the initial section, Constitutional Questions, in Field Speeches, supra note 28, at 3-215. The cases are discussed in detail in Van Ee, supra note 18, at 162-211. “Field considered these four cases the most important in his career.” Hobor, supra note 18, at 125.

109. See, e.g., Field, Centralization, supra note 101; Field, Some Reprehensible Practices of American Government, Address before the Reform Club of New York, Jan. 10, 1890, reprinted in 3 Field Speeches, supra note 24, at 423; Field, Theory, supra note 24, at 382: “There are two theories of government, the liberal and the meddlesome.… The meddlesome theory leads to irritation, failure, reaction. Most certainly we promote our own individual happiness best when we mind our own business most.”

110. Field, Municipal officers, Address to the Young Men's Democratic Club of New York, Mar. 13, 1879, reprinted in 2 Field Speeches, supra note 65, at 177, 183.

111. Field, Theory, supra note 24.

112. Id. at 379.

113. Id. at 378, 381.

114. Code Commissioners' First Report, supra note 64, at 313.

115. Field, , Address: The Needs of Legislation, 10 N.Y. State Bar Assn. Repts. 86 (1887Google Scholar), cited in Hobor, supra note 18, at 132.

116. Demurrer to bill of complaint in John B. Heath, and others, against The Erie Railway Company and others., United States Circuit Court, filed by Field and Shearman, says on top right of first page, in handwriting, “[ca. 1869],” at 6, in Field-Musgrave MSS., supra note 18.

117. Hobor, supra note 18, at 191. See, also, Lincoln, supra note 74, at 73-91, and Hastings, supra note 85, at 4: “Have we not evils to complain of? The credit of the State has been pledged and nearly prostrated, and a heavy debt entailed upon us by log-rolling legislation, to carry through party measures, private corporations and public works for local and private benefit. Special legislation, for private schemes, has been carried to such an extent, that the laws now and then made for the public interest, have been almost lost and overlooked, in the numerous volumes of private acts, till occasionally sprung upon the unsuspecting offenders!”

118. Hobor, supra note 18, at 194. See, also, Lincoln, supra note 74, at 59-83, and the Hastings quote in supra note 117.

119. Hobor, supra note 18, at 193, 194. See, also, charts on pp. 192 and 195. Moreover, “[t]he public remarks of prominent convention members further indicates [sic] the connection between support for codification and laissez-faire policies.… The major opponents of codification were Strong supporters of active state involvement in the economy and opposed both the debt referendum provision and incorporation exclusively by general laws.” (at 196)

120. See, e.g., D. Miller, supra note 65, at 106-89.

121. See, e.g., Hurst, J.W., Law and the Conditions of Freedom 3–32 (1967)Google Scholar; Hurst, J.W., A Legal History of Money in the U.S. 1774-1970, at 31 (1973)Google Scholar; Marx, K., The German Ideology: Part I (1845–1846)Google Scholar, reprinted in Tucker, R., The Marx-Engels Reader 185 (2d ed. 1978Google Scholar).

122. U.S. v. Cruikshank, 92 U.S. 542 (1875). See, e.g., Field Speeches, supra note 28, at 180, and Van Ee, supra note 18, at 205-211, citing, inter alia, Lonn, , Reconstruction in Louisiana: After 1868, at 240-45 (1918)Google Scholar; Fairman, C., Reconstruction and Reunion 1377-78 (1971)Google Scholar; Dunning, Reconstruction, Political and Economic, 219, 263-64.

123. From the time of the first A.B.A. Enabling Act resolution that was introduced in Congress in the twentieth century, it was provided that the Supreme Court would be authorized to prescribe the new procedural rules. See H.R. 26, 462, 62d Cong., 3d Sess. (1912), reprinted in 38 A.B.A. Rep. 542 (1913Google Scholar). See, also, the A.B.A. Enabling Act resolution, 37 A.B.A. Rep. 434, 435 (1912Google Scholar). If Field had suggested court-made rules for New York after 1847, those rules would have been drafted by elected judges. See note 102, supra.

124. Hofstadter, R., The American Political Tradition and the Men Who Made it 78 (First Vintage Books ed., paperback, 1974Google Scholar). See, also, e.g., Llewellyn, , The Good, The True, The Beautiful in Law, 9 U. Chi. L. Rev. 224, 240, 241 (1942Google Scholar) [hereinafter cited as Llewellyn, The Good]; White, American Judicial Tradition, supra note 100, at 118; and Schlesinger, Jr., supra note 62, at 315 (on influence of Adam Smith on Jefferson, Theodore Sedgwick, Field, and others. “The little village of Stockbridge in Massachusetts [where Field had lived as a teenager] was a particular center of freetrade thought”). For the relationship of contract law in the nineteenth century to laissezfaire economics, See, e.g., Friedman, L., Contract Law in America 18–24 (1965)Google Scholar.

125. Gordon, supra note 68, at 457. For an analysis of conceptual problems in a philosophy that attempts to “maximize the ability of each autonomous individual to act freely so long as he did not infringe the liberty of anyone else,” see Singer, , The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wisc. L. Rev. 975, 995–1014Google Scholar [hereinafter cited as Singer] and infra text accompanying notes 251-53.

126. See, e.g., supra notes 16 and 103; Holtzoff, supra note 4, at 1059, 1060; Moore, supra note 10, at para. 0.523[2]; Washington & New York 1938 Institutes, supra note 15, at 39-42, 58-59, 75 (Clark); and 80-89 (W. Calvin Chesnut, Judge, U.S. Dist. Ct, Dist. Md.); Clark, , The New Federal Rules of Civil Procedure: The Last Phase— Underlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A.B.A. J. 976 (1937Google Scholar) [hereinafter cited as Clark, The New Federal Rules]; Clark, , The Handmaid of Justice, 23 Wash. U.L.Q. 297, esp. 308, 316 (1938Google Scholar) [hereinafter cited as Clark, The Handmaid].

127. See, e.g., Subrin, How Equity Conquered Common Law, supra note 16, at 940, 962-64, 976-77.

128. See, e.g., 1848 Report, supra note 56, at 8, 76, 87, 141, 147; Field, Letter to Verplanck, supra note 37, at 223; Field, What Shall Be Done?, supra note 56, at 260; Field, Memorial, supra note 63, at 261; Final Report of the (New York State) Practice Commission, reprinted in Field Speeches, supra note 28, 290, 292 [hereinafter cited as Final Report of the Practice Commission]; Second Report of the (New York State) Code Commission (Mar. 31, 1859) [hereinafter cited as Second Report of Code Commission], reprinted in Field Speeches, supra note 28, at 315; Code Commissioners' Final Report, supra note 64, at 319, 320; Introduction, Civil Code, supra note 106, at 337; Field, Corres. to Cal. Bar, supra note 106, at 352. For a similar approach in the international arena, See, e.g.. Field, First Project of an International Code, Address before British Social Science Association (Oct. 5, 1866), reprinted in Field Speeches, supra note 28, at 384, 387, 389.

129. Field, Legal Science, supra note 28, at 523.

130. Id. at 524, 525.

131. Id. at 529. (On the relationship of nineteenth-century legal thought about rights and predictability to broader political and philosophic currents of the time, see Atiyah, supra note 7, at 1260-64.)

132. Field, Recollections No. 2, supra note 18, at 2 1/2.

133. See, e.g., Field, Journal, supra note 18, at 7 (Sept. 9, 1832—English writers); 10, 11 (Mar. 16, 1833—books); 12, 13 (Apr. 7, 1833): “I have been reflecting on my legal studies since last Autumn. It was my plan to make for myself a classification of legal knowledge, and in that order revise all my previous studies. With this view, I made the following arrangement….” He first divided “Political” from “Social” laws. “Social laws may be divided into those which concern (1) Protection of the person from violence, injury or restraint. (2) Reputation, (3) Domestic relations and duties, and (4) Property. There is also a second division of laws into those which establish the rules to be conformed to, and those which provide the modes of Procedure in the courts.”

134. Field, Recollections No. 2, supra note 18, at 7, 8.

135. Field, Commonplace Book, supra note 18, at no. 13. A loose scrap of paper at the end of the book raises a similar theme: “I consider the attempts to prove or illustrate moral truths by comparisons and analogies as a most fruitful source of errors….” This scrap has “[ca. 1821-4]” written on it in pencil.

136. Field, Legal Science, supra note 28, at 530.

137. 1848 Reports, supra note 56, 139.

138. See, e.g., 1848 Report, supra note 56, at 68-87, 139-41, and text accompanying notes 56-58 supra, and those notes.

139. 1848 Field Code, supra note 48, at Sec. 120 (2). For the provision, as amended, see N.Y. Laws, 1851, c. 479, sec. 1.

140. See, e.g., supra note 29 (attraction to mathematics) and supra note 28 (attraction to astronomy).

141. See, e.g., Field, What Shall Be Done?, supra note 56, at 239, 240; and 1848 Report, supra note 56, at 141, 142: “Since the facts give the right to relief, it must be proper, that they should be stated as they exist…. We propose, that the plaintiff shall state his case according to the facts, and ask for such relief as he supposes himself entitled to; that the defendant shall by his answer point out his defence distinctly. This form of allegation and counter allegation will make the parties disclose the cause of action and defence, so that they may each come to the trial prepared with the necessary proofs.” See, also, Hepburn, supra note 98, at 12, 13. Loomis had found it difficult to apply a common-law procedural system to equity cases. Loomis, infra note 228.

142. Clark, Code Cause, infra note 270, at 820, n. 16, citing, inter alia, Y.B. Ed. IV, f. 3, pl. 2 (1477).

143. On difficulty with “fact,” See, e.g., Cook, , Statement of Fact in Pleading Under the Codes, 21 Colum. L. Rev. 416 (1921CrossRefGoogle Scholar) [hereinafter cited as Cook, Statement of Fact]; Cook, , ‘Facts' and 'statement of Fact’, 4 U. Chi. L. Rev. 233 (1937CrossRefGoogle Scholar) [hereinafter cited as Cook, ‘Facts’]; Clark 1928 Handbook, supra note 10, at 150-63. On difficulty with “cause of action,” See, e.g., Clark, Code Cause, infra note 270, and McCaskill, , Actions and Causes of Action, 34 Yale L.J. 614 (1925CrossRefGoogle Scholar) [hereinafter cited as McCaskill, Actions]. McCaskill summarizes the attempts of others, including Pomeroy and Clark, to define the term (614-19), and then argues for his own definition (638). Clark, who consistently disparages the aspects of the Field Code that are confining and narrowing, gives the Code cause of action a meaning that is consonant with the modern transactional analysis test for joinder, compulsory counterclaim, and amendment purposes, or with a modern “trial convenience” test. See, e.g., Clark 1928 Handbook, supra note 10, at 75-87. Clark's cause of action apparently embraces several of Field's. If one sued a car dealer for damages as a result of purchasing a “lemon,” I believe that the alleged breach of express warranty, breach of implied warranty, negligence claim, and violation of consumer protection statute would each be a separate right or cause of action for Field; Clark would apparently call the “aggregate of operative facts giving rise to a right or rights termed ‘right’ or ‘rights of action’ which will be enforced by the courts” one cause of action. (75, headnote)

144. See, e.g., Field, What Shall Be Done?, supra note 56, at 239-41, 253-56; 1848 Report, supra note 56, at 67-87.

145. See, e.g., 1848 Report, supra note 56, at 87, in which the commissioners conclude: “Let our courts be hereafter confined in their adjudications to questions of substantial right, and not to the nice balancing of the question, whether the party has conformed himself to the arbitrary and absurd nomenclature, imposed upon him by rules, the reason of which, if they ever possessed that quality, has long since ceased to exist, and the continuance of which is a reproach to the age in which we live.” For the emphasis on rights, See, e.g., the citations in note 128, supra.

146. 1848 Report, supra note 56, at 141, 142.

147. Fed. R. Civ. R 8 (a) (2). See, also, Fed. R. Civ. P. 12 (b) (6). On difficulties interpreting “facts” and “cause of action,” see supra note 143 and infra note 222.

148. See text accompanying notes 216-24 infra, and those notes; Subrin, How Equity Conquered Common Law, supra note 16, at 962-70, 975-82.

149. See, e.g., Hepburn, supra note 98, at 32, 33. and Millar, R.W., Civil Procedure of the Trial Court in Historical Perspective 5, 6 (1952Google Scholar). Millar, curiously, changes his position in midstream. First, “[w]hen form is supreme no place is afforded for arbitrary decision…. Form … stands as a protection against the arbitrary exercise of authority. It ties the wielder of power just as it ties those subject to that power” (5). But, then, perhaps in an attempt to make sense out of modern Procedure: “But, as in other systems, with increasing stability of the courts and growing confidence in their justice, judicial discretion becomes by degrees a surrogate of the old supremacy of form, and there is progression from rigidity to flexibility in the rules of Procedure”(6).

150. Unlike Charles Clark and other twentieth-century procedural reformers, procedural simplicity for Field did not mean the absence of definition and constraint nor did it mean discretion and flexibility. See Subrin, How Equity Conquered Common Law, supra note 16, at 944-48 (Pound), 948-61 (Shelton), 961-73 (Clark).

151. 1848 Field Code, supra note 48, Sec. 120 (2), at 521. In 1849, it became N.Y. Laws 1849, c. 438, Sec. 142. In 1851, it was amended to: “A plain and concise statement of the facts showing a cause of action without unnecessary repetition.” N.Y. Laws 1851, c. 479, Sec. 1.

152. 1848 Field Code, supra note 48, Sec. 122 (6), at 522.

153. On Pleading under the Federal Rules, See, e.g., Dioguardi v. Durning, 139 F. 2d 774 (2d Cir. 1944) (Clark, J. opinion); Conley v. Gibson, 355 U.S. 41 (1957); James, F. & Hazard, G., Civil Procedure 84–88 (2d ed. 1977)Google Scholar [hereinafter cited as James & Hazard (2D ED.)] (on the ambiguity of the Pleading requirement under the Federal Rules); Pound's earlier endorsement of a liberal Pleading philosophy, Pound, Some Principles, supra note 103, at 296, 297.

154. 1848 Field Code, supra note 48, Sec. 121, Sec. 128, at 521-22. Id., Sec. 129, at 523. This was amended by N.Y. Laws 1852, c. 392, to require that each defense “refer to the causes of action to which they are intended to answer.” There was also a reply requirement. Id., Sec. 131, at 523.

155. Id., Sec. 124, at 522.

156. Fed. R. Civ. P. 12 (b).

157. 1848 Report, supra note 56, at 152, 153. On the importance of facts and the oath to Field, See, also, a fascinating letter from what looks like Bramwell (an Englishman) (Temple, July 25, 1851 or 1857) to Field, Field-Musgrave MSS., supra note 18, in “Letters 1830-1859,” describing a conversation that Field had with the writer at Westminster Hall when Field was visiting England and describing procedural reform efforts of the writer, evidently as part of some committee or commission. He talks about “our first report” and asks Field to “remember that we move here more slowly than you do. Prejudice and personal interest are Stronger with us than with you…. On the other hand, it contains a great defect which you warned me against, but which I could not prevent. I mean it retains the old mode of stating subtle implications, instead of the facts themselves. Money had and received and similar abominations. All I could do on this… (unclear), was to procure the insertion in the report of a doubt, and of one or two illustrations showing their absurdity. Do you remember saying, ‘Alter that mode of Pleading and the (junction?) of law & equity is easy.’ Besides how can a man swear to his Pleading being true, when the facts are so stated. Still it is a step, and I hope will meet the approval of so distinguished a reformer as yourself.” Clark, as reporter of the original advisory committee, initially drafted a more demanding verification requirement. His draft was scorned by some of the members of the committee, and rejected. See, Subrin, How Equity Conquered Common Law, supra note 16, at 976.

158. 1848 Field Code, supra note 48, Sec. 133, at 523.

159. 1848 Report, supra note 56, at 153.

160. 1848 Field Code, supra note 48, Sec. 144, at 525.

161. 1848 Report, supra note 56, at 153.

162. Field, What Shall Be Done?, supra note 56, at 239.

163. Final Report of the Practice Commission, supra note 128, at 302, 303. Unlike the 1848 Field Code, Fed. R. Civ. P. 8 (e) (2) permits inconsistent claims and defenses. Such a provision would not appeal to Field, who relied so heavily on truth in Pleadings.

164. The Fed. R. Civ. P. 11 oath requirement now states, in part: “The signature of an attorney or party constitutes a certificate by him that he has read the Pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,…” The 1983 amendments are discussed in historical context in Subrin, supra note 16.

165. Field, What Shall Be Done?, supra note 56, at 240.

166. Id. at 240, 241.

167. 1848 Field Code, supra note 48, at Sec. 149, at 526.

168. Id. Sec. 145, Sec. 147, at 525-26.

169. SeeF.R.C.P. 15(b).

170. Probably the most surprising to Field would be Fed. R. Civ. P. 18, permitting a party to join “as many claims, legal, equitable, or maritime, as he has against an opposing party.” See, also, Fed. R. Civ. P. 19-25, which, along with 18, are subject to severance under Fed. R. Civ. P. 42 (b).

171. 1848 Field Code, supra note 48, Sec. 97, Sec. 98, at 516. See, also, Sec. 100, a distinct rule for “[p]ersons severally liable upon the same obligation or instrument….”

172. See, e.g., James & Hazard (3rd ed.), at 470-475.

173. 1848 Field Code, supra note 48, Sec. 143, at 525. See, infra, note 175 for cite on how the courts narrowed the Field Code joinder provisions.

174. 1848 Field Code, supra note 48, Sec. 143, at 525. The categories were: contract; injuries by force; injuries without force; injuries to character; claims to recover real property, with or without damages; claims to recover personal property, with or without damages; and claims against a trustee. McCaskill, Actions, supra note 143, at 624-26.

175. N.Y. Laws 1852, c. 392, Sec. 167. On narrowing, See, e.g., James & Hazard (2d ed.), supra note 153, at 466-67, and 460, 461: “But… [the transaction clause] too often received a narrow judicial interpretation so that it enlarged but little the scope of joinder provided in the other classes” (460, n. omitted).

176. Fed. R. Civ. P. 18(a).

177. N.Y. Laws 1852, c. 392, Sec. 150. Counterclaims were also limited to a definition close to that contained in the present compulsory counterclaim in Fed. R. Civ. P. 13 (a).

178. Class Action: N.Y. Laws 1849, c. 438, Sec. 119. Interpleader: N.Y. Laws 1851, c. 479, Sec. 122. Intervention: N.Y. Laws 1851, c. 479, Sec. 122. Impleader: 2 N.Y. Laws 1922, c. 624, Sec. 193 (a). On restrictive form, See, e.g., James & Hazard (2d Ed.), supra note 153, at 500-26.

179. See, e.g.. Field, What Shall Be Done?, supra note 56, at 226, 232, 260. Also see 1848 Report, supra note 56, at 244 (commentary on Sec. 350).

180. 1848 Report, supra note 56, at 177, 178.

181. 1848 Field Code, supra note 48, Sec. 343, at 559.

182. 1848 Report, supra note 56, at 241.

183. James, supra note 4, at 180, 181 and ns. 8-12.

184. 1848 Field Code, supra note 48, Sec. 342, at 558.

185. Id.

186. Id. Sec. 341. Compare with the language of Fed. R. Civ. P. 36 (“any matters within the scope of Rule 26 (b) set forth in the request that relate to statements or opinions of facts or of the application of law to fact, including the genuineness of any documents described in the request.” and Fed. R. Civ. P. 26 (b) (1): “relevant to the subject matter involved in the pending action…” and “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

187. Id. Sec. 341. See a similar provision in Fed. R. Civ. P. 37 (c).

188. Id. Sec. 345 — “instead of.” See, also, comment in 1848 Report, supra note 56, at 245: “But if the examination be once had, we would not permit it to be repeated, else it might become the means of annoyance.” Sec. 344—“subject to the same rules of examination, as any other witness.”

189. Id. Sec. 345—“before a judge of the court or a county judge.”

190. Field, D.D., Re-Organization of the Judiciary, Five Articles Originally Published in the Evening Post on that Subject 3, 4 (1846Google Scholar) [hereinafter cited as Field, Re-Organization of the Judiciary].

191. 1848 Report, supra note 56, at 139.

192. N.Y. Constitution, Art. I, Sec. 2, quoted in 1848 Report, supra note 56, at 177. The new provision is Sec. 208, 1848 Field Code, supra note 48, at 536.

193. See comment to Sec. 208 in 1848 Report, supra note 56, at 185: “We propose an extension of the right of trial by jury to many cases, not within the constitutional provision.”

194. 1848 Field Code, supra note 48, sec. 221, at 538. (Fed. R. Civ. P. 38 (d)).

195. Fed. R. Civ. P. 49.

196. 1848 Field Code, supra note 48, Sec. 215, Sec. 216, at 537. The test in Sec. 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 (Sec. 208).

197. 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. 112 (1924CrossRefGoogle Scholar) [hereinafter cited as Smith].

198. 1848 Report, supra note 56, at 180.

199. Id. at 178.

200. Id. at 189, accompanying Sec. 221.

201. For several New York courts, the judges were first elected in 1847. See supra note 101.

202. See text accompanying notes 42-47, and those notes. The Code commissioners thought some law should be omitted from a codification. “[T]here are certain special laws which are long, full of details, and liable to constant change, and which ought to be separately printed and distributed; as, for example, the poor laws, the health laws, and the militia laws.” Code Commissioners' First Report, supra note 64, at 314.

203. See, e.g., Code Commissioners' First Report, supra note 64; Code Commissioners' Final Report, supra note 64, and Introduction to the Completed Civil Code (New York, 1865Google Scholar), reprinted in Field Speeches, supra note 28, at 323-28 [hereinafter cited as Introduction to Completed Code].

204. See, e.g.. Code Commissioners' First Report, supra note 64, at 321. In fact, Loomis believed the duty of the Commissioners on Practice and Pleadings was to use “language apt and appropriate, general yet comprehensive, scrutinized with the nicest care and diligence, to cover the whole ground in comprehensive terms, with but little detail, allowing to the Courts freedom of construction and application, as the administration of justice might require.” Loomis, infra note 228, at 25.

205. See, e.g., Code Commissioners' First Report, supra note 64, at 313; Introduction to Completed Code, supra note 203, at 330, 331.

206. Id. at 321, 322. For the Commissioners' description of all substantive law, see id., at 317: “the law of Civil rights and obligations affecting all the transactions of men with each other in their private relations, the law of crimes and punishment, and the law of government, including every branch of administrative and political action.”

207. Introduction to Completed Code, supra note 203, at 330.

208. Id. at 178, 179, Sec. 687, Sec. 693.

209. Here are typical Draft Civil Code Rules that are about as precise as laws can be, if they are to cover more than an extremely narrow range of circumstances (and bearing in mind that many of the terms are denned elsewhere in the Code):

Sec. 690. Unless it is otherwise agreed between the parties, the thing sold, or agreed to be sold, is deliverable at the place at which it is at the time of the sale or agreement to sell, or if it is not at that time in existence, it is deliverable at the place at which it is produced.

Sec. 691. The seller must bear the expense of putting the property out of his own building, but further transportation is at the risk and expense of the buyer.

The Commissioners of the Code, Draft of A Civil Code for the State of New York, Sees. 690, 691, p. 179 (1862).

210. This is a traditional view of substantive law. See, e.g., Risinger, “Substance” and “Procedure” Revisted with Some Afterthoughts on the Constitutional Problems of “Irrebuttable Presumptions,” 30 Ucla L. Rev. 189, 203, 204 (1982Google Scholar) [hereinafter cited as Risinger]. For the position that the Code Commissioners were not precise enough, See, e.g., Rives, supra note 97; and Sedgwick, A., Damages in the Code, An Examination of the Sections of the Proposed Civil Code Relating to the Measure of Damages, or Compensatory Relief (1885)Google Scholar (printed by direction of the Comm. on the Code of the New York Bar Assn.).

211. Commissioners, Draft Code of Evidence (State of New York) Sec. 2, Sec. 301 (1887Google Scholar) [hereinafter cited as Draft Evidence Code]. The Commissioners at this time were Field, David L. Follett, and William Rumsey. In 1850, as part of the Code of Civil Procedure (1850 New York Procedural Code, supra note 51), Commissioners Arphaxed Loomis, David Graham, and Field had submitted an evidence Code as Part IV. of Evidence. There are many differences in form and content between the 1850 and 1887 versions. The concentration on “facts,” however, is similar. See infra note 212. The “Purpose and Construction” Rule of the Federal Rules of the Evidence (Fed. R. Ev. 102) states that the rules “shall be construed … to the end that the truth may be ascertained and proceedings justly determined,” but does not mention facts. But see Fed. R. Ev. 201, 401.

212. Draft Evidence Code, supra note 211, at Sec. 5. 1850 New York Procedural Code, supra note 51, at Sec. 1659, is identical, except for a comma after “proceeding” in the 1887 version. Sec. 1660 states: “Proof is the effect of evidence, the establishment of a fact by evidence.” For the stressing of facts in the Evidence part of the 1850 New York Procedural Code, See, e.g.. Sees. 1659, 1660, 1667-70, 1672, 1702, 1704-1, 1705, 1706.

213. Draft Evidence Code, supra note 211, at Sec. 2.

214. See, e.g., Pound, , Mechanical Jurisprudence, 8 Colum. L. Rev. 605 (1908CrossRefGoogle Scholar) and J. Frank, Law and the Modern Mind 118-47 (1935) [hereinafter cited as Frank, Law].

215. David Dudley Field, Commonplace Book, 1824-1827 (this entry, ca. 1825), Field-Musgrave MSS., supra note 18.

216. Holtzoff, supra note 4, at 1060. Holtzoff was a special assistant to Attorney General Homer Cummings, who, in 1934, sponsored the Enabling Act that finally passed. On Cummings sponsorship of the Enabling Act, See, e.g., Burbank, supra note 1, at 1095-1101; Subrin, How Equity Conquered Common Law, supra note 16, at 969. On Holtzoff, see, 1 Barron, W. & Holtzoff, A. (revised by Wright, C.A.) Federal Practice and Procedure with Forms VII (1960Google Scholar).

217. See, e.g., Subrin, How Equity Conquered Common Law, supra note 16, at 962-64, and n. 309.

218. See, e.g., Pound, , Reforming Procedure by Rules of Court, 76 Central L.J. 211 (1913Google Scholar); Shelton, , Uniformity of Judicial Procedure and Decision, 22 The Law Student's Helper 5, 8 (1914Google Scholar) [hereinafter cited as Shelton, Uniformity]; Shelton, , The Drama of English Procedure, 17 Va. L. Rev. 215, at 220, 221 (1931Google Scholar); Shelton, Spirit, supra note 78, e.g. at xix-xix, 89-91, 96.

219. See, e.g., A.B.A., Special Session on Legal Education of the Conference of Bar Association Delegates 112 (1922Google Scholar) (James Byrne, citing Pound on the need for “a yoke” to be placed on the “neck” of “these commissions”) and Cummings, , Liberty Under Law and Administration 130, 131 (1934Google Scholar) (White Lectures at U. of Va. Law School) [hereinafter cited as Cummings, Liberty].

220. Schlegel, , American Legal Realism and Empirical Social Science: From the Yale Experience, 28 Buffalo L. Rev. 459, esp. at 570 (1979Google Scholar); Cummings, Liberty, supra note 219, esp. at 96; and Clark, C. & Shulman, H., Law Administration in Connecticut 202-42 (1937)Google Scholar. On the importance of considering all of the facts for modern substantive law, see Atiyah, supra note 7, at 1258-59.

221. See, e.g., Pound, The Causes of Popular Dissatisfaction with the Administration of Justice (1906) (Address delivered at annual convention of A.B.A. in 1906. Proc. A.B.A. 1906, at 395), reprinted in 20 Journal of the American Judicature Society 178, 180 (1937Google Scholar) [hereinafter cited as Pound, The Causes]; Shelton, SPIRIT, supra note 78, at, e.g., xxix, 33, 51, 63, 120: “The law is a science, and the administration of it is a highly technical governmental function.” Clark's son, Elias Clark, professor of law, Yale Law School, recalled that his father had received a mathematics prize at Yale College, and that Clark thought that mathematics was the best preparation for law school. Interview, Stephen N. Subrin with Elias Clark, Dec. 18, 1978, New Haven, Conn.

222. See, e.g., citations in note 143, supra; and Risinger, supra note 210, at 199-202, citing, inter alia, Cook, , “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L.J. 333, 336-37, 341, 345 (1933Google Scholar).

223. See, e.g., Frank, J., Courts on Trial, Myth and Reality in American Justice, esp. 14-36 (Facts are Guesses) and 108-25 (The Jury System) (1949)Google Scholar; Frank, Law, supra note 214, at 116,172; Rumble, W., Jr., American Legal Realism: Skeptism, Reform and the Judicial Process 107-36 (1968)Google Scholar.

224. See, e.g., supra note 126, and Clark, , Federal Procedural Reform and States' Rights; To a More Perfect Union, 40 Texas L. Rev. 211 (1961Google Scholar).

225. See, e.g., Maitland, F., Equity also the Forms of Action at Common Law, Two Courses of Lectures 1–20 (Chaytor, A. & Whittaker, W. eds. 1913)Google Scholar [hereinafter cited as Maitland].

226. See, e.g., id.; Milsom, supra note 56; McDowell, supra note 1.

227. See, e.g., Subrin, How Equity Conquered Common Law, supra note 16.

228. On Field's debt to equity, See, e.g., Field, What Shall Be Done?, supra note 56, at 258: “The Pleadings in equity being formed on simple and just principles, will naturally serve as a model for the rest”; 1848 Report, supra note 56, at 124 (on real party in interest rule and joinder of parties); 127 (note to Sec. 99, on mandatory joinder); 135 (note to Sec. 114, on notice to absent defendants); 142 (note to Sec. 118 on few Pleading steps in chancery); 185 (note to Sec. 210, on use of one judge to decide legal issues, as in equity); 214 (security required on appeal similar to chancery practice); and 250, 251 (note to Sec. 356, on examination of witnesses outside of county, compared to witnesses questioned before examiners in chancery); State of New York Second Report of the Commissioners of Practice and Pleadings, Code of Procedure (1849)Google Scholar, reprinted in Field Speeches, supra note 28, at 281: “The basis adopted for [the Commissioners'] action was substantially that upon which courts of equity were originally founded; the natural course by which the means to be used, are directed solely by the end to be attained, without regard to the forms of action.” Loomis, A., Historic Sketch of the New York System of Law Reform in Practice and Pleadings 16 (1879Google Scholar) [hereinafter cited as Loomis], describing how he, one of the New York Commissioners of Practice and Pleadings, who helped draft what later became known as the Field Code, was forced to turn to equity principles in order to draft a procedural Code for a merged system of law and equity: “I prepared and submitted partly to Mr. Hill (referring to Nicholas Hill, whom Field replaced as a commissioner) 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 action, applying it to all kinds of actions” (16). and “The system approaches and assimilates more nearly with the equity forms than with those of the common law” (25).

229. See, Maitland, supra note 225, at 19.

230. See, e.g., Lincoln, supra note 73, at 69, 70; and Hobor, supra note 18, at 50-55. Equity, of course, was disfavored in many parts of America, starting from the earliest colonization. See, e.g., Wolford, , The Law and Liberties of 1648, 28 B.U.L. Rev. 426 (1948Google Scholar); Beale, , Equity in America, 1 Cambridge L.J. 21–23 (1921CrossRefGoogle Scholar); Friedman, supra note 56, at 47-48; McDowell, supra note 1; Katz, The Politics of Law in Colonial America: Controversies Over Chancery Courts and Equity Law in the 18th Century, in Perspectives in American History 257-84 (Bailyn and Fleming eds. 1971); Smith, & Hershkowitz, , Courts of Equity in the Province of New York: The Cosby Controversy, 1732-1736, 16 Am. J. Legal Hist. 1 (1972CrossRefGoogle Scholar); Woodruff, , Chancery in Massachusetts, 9 B.U.L. Rev. 168 (1929Google Scholar); and Curran, , The Struggle for Equity Jurisdiction in Massachusetts, 31 B.U.L. Rev. 269 (1951Google Scholar).

231. Field, Re-Organization of the Judiciary, supra note 190, at 8.

232. Loomis, infra note 228, at 7, 10.

233. 1848 Report, supra note 56, at 71. The quote also said positive things about equity—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.”

234. For example, in the Erie litigation, according to George Martin, “[a]t the end of a month of legal action five judges had issued seven injunctions, all enjoining or commanding things wholly inconsistent.” Martin, supra note 18, at 5. At Field's death, the New York World reported: “He was reproved by the lawyers for his development of the possibilities and capabilities of the writ of injunction to a degree never before practised.” David Dudley Field Dead, The World (New York, Apr. 14, 1894Google Scholar), in Field-Musgrave MSS., supra note 18.

235. New York Herald (July 23, 1857), cited in Van Ee, supra note 18, at 137.

236. Field, What Shall Be Done?, supra note 56, at 226, 227.

237. Id. at 227-33. Although according to Field not all equity Pleadings in New York had to be verified, equity did traditionally require sworn Pleadings. James, supra note 4, at 11.

238. 1848 Report, supra note 56, at 179-81. On joinder under the Field Code, see, supra, pages accompanying notes 170-78.

239. E.g., long, detailed Pleadings; oath not required on all Pleadings; broad joinder; emphasis on discovery; written, rather than oral, testimony; judge instead of jury; heavy reliance on masters; extreme flexibility; and judicial discretion. Even with respect to equitable relief, Field criticized injunctions and the Commissioners attempted to specify what relief should apply to most types of cases (see, supra note 234).

240. Hepburn, supra note 98, at 8, 12, and 19.

241. Pound, Some Principles, supra note 103, at 403. Pound added a sentence that is probably true for the period Field was writing the procedural Code, but untrue for a later period, given Field's wide use of the injunction in his post-Civil War practice: “Field was not an equity lawyer and thinking only of the legal situation, drafted some important sections in such a way as seriously to embarass proceedings in equity.”

242. See, supra, pages accompanying notes 110-12.1 thank my colleague, Karl Klare, for his helpful suggestions on Field as a transitional figure, and for his critique of Field's rights-oriented philosophy, much of which I have drawn on in this article. Fora summary of various attacks on “rights” thinking, see Minow, , Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860, 1860–1865 (1987CrossRefGoogle Scholar) [hereinafter cited as Minow, Interpreting Rights].

243. See, e.g., Cohen, F., Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 826 (1935Google Scholar) [hereinafter cited as Cohen, Transcendental Nonsense].

244. See, supra note 222.

245. See, supra note 223.

246. See, e.g., supra note 243; infra note 248.

247. See Galanter, , Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc. Rev. 95 (1974CrossRefGoogle Scholar) [hereinafter cited as Galanter, The Haves.]

248. See, e.g., Singer, , The Player and The Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, at 14–19 (1984CrossRefGoogle Scholar) [hereinafter cited as Singer, Legal Theory]; supra text accompanying notes 221-24, and those notes; Llewellyn, The Good, supra note 124, at 262-64; Llewellyn, , A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431, 437–38 (1930Google Scholar); Kennedy, , Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, esp. at 1700 (1976) [hereinafter cited as Kennedy]CrossRefGoogle Scholar; Cohen, F., Book Review, 17 A.B.A. J. 111 (1931Google Scholar) (reviewing Frank, J., Law and the Modern Mind (1930)Google Scholar [hereinafter cited as Cohen, Book Review]: “Frank's fundamental thesis is that the law is not and ought not to be certain and predictable and that those who think otherwise are simply infantile.” On inequality of citizens in their ability to litigate, See, e.g., Galanter, The Haves, supra note 247.

249. For adoption of standards, rather than rules, See, e.g., Lieberman, supra note 16, at 18-25. For a description of the types of global issues often confronted in modern litigation, See, e.g., Chayes, supra note 16; Fiss, Forms of Justice, supra note 16; Oakes, supra note 16.

250. See, supra note 242.

251. In his argument in Cummings v. Missouri, 71 U.S. 277 (1866), Field addresses the problem of what becomes of natural rights in a political system with Codes, statutes, and a constitution. Field Speeches, supra note 28, at 113, 114. He does not, though, talk about the effect of their continued vitality on his predictability theme.

252. For an exploration of inconsistencies and tensions in rights-based jurisprudence, see Singer, supra note 125.

253. Id. Singer quotes Abraham Lincoln (978): “The shepherd dRives the wolf from the sheep's throat, for which the sheep thanks the shepherd as his liberator, while the wolf denounces him for the same act, as the destroyer of liberty.… Plainly the sheep and the wolf are not agreed upon the definition of the word liberty.” (Citation omitted)

254. See, e.g., supra notes 204, 205.

255. See, e.g., Llewellyn, , Some Realism about Realism, 44 Harv. L. Rev. 1222, 1253 (1931Google Scholar). On Llewellyn's vision of “Grand style judging,” and why he thought such judging would lead to more, not less predictability, see Wiseman, , The Limits of Vision: Karl Llewellyn and the Merchant Rule, 100 Harv. L. Rev. 465, 492-99, 507-8, 537, 539–40 (1987Google Scholar).

256. See, e.g., Childres, , Conditions in the Law of Contracts, 45 N.Y.U. L. Rev. 33, 34–35 (1970Google Scholar).

257. See, e.g., McDowell, supra note 1; Berger, R., Government by Judiciary (1977)Google Scholar; Minow, Interpreting Rights, supra 242, at 1863, 1864 (describing this view).

258. Supra notes 243, 248.

259. For a description of some of the theses of those associated with the critical legal studies movement concerning “legitimation” and “mystification,” see Solum, , On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 467–70Google Scholar, and citations therein [hereinafter cited as Solum]. For a more extensive bibliography of critical legal studies literature, see Kennedy, and Klare, , A Bibliography of Critical Legal Studies, 94 Yale L.J. 461 (1984Google Scholar).

260. For a description of, and citations to, this type of criticism, see Minow, Interpreting Rights, supra note 242, at 1862, 1869-1870, 1871, n. 40; Cornell, , In Union: A Critical Review of “Toward a Perfected State” (by Weiss, P.), 135 Pa. L. Rev. 1089, 1089–94Google Scholar (“The Problem of the Individual and Community”) (1987).

261. Yntema, , Legal Science and Reform, 34 Colum. L. Rev. 207, 210 (1934Google Scholar).

262. If you do, or have the characteristics of, A, B, and C, then you can count on Y as the result. If X does D, E, and F to you, then you can have Z relief from X. The alternative, absent a homogeneous society in which people somehow agree on rights, how to provide them, and how to cure breaches without formal articulation and enforcement by the state, is to keep the populace from having and receiving expectancies, and to keep them guessing about the consequences of behavior. Even those who Strongly cherish community values (as opposed to or in addition to values of individuality and competition) want society, with the aid of law, to protect rights or preannounced expectancies. See, e.g., Singer, Legal Theory, supra note 248, at 68; Minow, Interpreting Rights, supra note 242, at 1884-93; and Unger, R., False Necessity—Antinecessitarian Social Theory in the Service of Radical Democracy (on The System of Rights) (1987)Google Scholar. Ironically, elements of Field's “rights thinking,” as it relates to Procedure, may ultimately prove attractive to critics of “rights thinking.”

263. For instance, the nonconstitutional privileges indicate a priority given other values, such as privacy and human relationships, and the Fifth Amendment privilege is also based, in part, on humanitarian concerns. See, e.g., Louisell, , Confidentiality, Conformity and Confusion: Privileges in Federal Court Today, 31 Tul. L. Rev. 101, 109–15 (1956Google Scholar); Griswold, E., The Fifth Amendment Today (1955)CrossRefGoogle Scholar.

264. See text accompanying supra notes 154, 158-66, 170-78, 181-89.

265. Singer, Legal Theory, supra note 248, at 22, citing Kennedy, supra note 248, at 1687-89. For the thesis that the “indeterminacy” of law claim is unsupported dogma, and that “undeterminacy” is a more accurate description of the real legal world, see Solum, supra note 259. See, also, Stick, , Can Nihilism Be Pragmatic?, 100 Harv. L. Rev. 332, 352–69 (1986Google Scholar) (critique of the critical legal studies indeterminacy thesis, especially as expressed by Professor Singer) [hereinafter cited as Stick].

266. Further, Singer concedes that most judges often “enforce rules with which they Strongly disagree.” Singer, Legal Theory, supra note 248, at 14-19, 21, 23-24.

267. The list of rights is taken from Singer, Legal Theory, supra note 248, at 68, although Singer lists them “[w]ithout arguing about whether these are rights, or what sort of rights they are.” Solum argues that “[w]ithout a notion of the possibility of change, no theory of law can claim to be truly critical…. We must imagine a progressive and humane social order, and we must imagine a way to get there from here.” Solum, supra note 259, at 503.

268. On the interconnectedness of human endeavors, Edmund Wilson quotes the French historian, Jules Michelet: “‘Woe be to him who tries to isolate one department of knowledge from the rest…. All science is one: language, literature and history, physics, mathematics and philosophy; subjects which seem the most remote from one another are in reality connected, or rather they all form a single system.’” Wilson, E., To the Finland Station 6 (1972Google Scholar edition).

269. See, e.g., supra note 227.

270. Given Singer's belief in the deficiencies of liberal thought, and of legal doctrine and a society based on that thought (or of which that thought and doctrine are both a part and a reflection), I suspect he might argue that attempts to dramatically improve society through different laws and different rights, without changing the underlying thought and structure, are doomed to failure; or, to put it another way, the present structure will not permit the rights he lists and that the contradictions in the thought and structure will thwart both achieving the rights and determinacy. Singer, Legal Theory, supra note 248.

271. For an in depth analysis of how and why it is difficult to achieve governmental compliance with law, and some suggestions for improving the likelihood of such compliance, see Schuck, P., Suing Government, Citizen Remedies for Official Wrongs (1983)Google Scholar.

272. See, supra text accompanying notes 106, 128-36.

273. Empirical data suggests that at least professionals, when informed, take legal rights and obligations seriously and attempt to comply with the demands of doctrine; and that the more concrete the doctrine, the more likely it will be followed: “the prevailing view that courts should not attempt to set specific standards of conduct needs reexamination.” Givelber, , Bowers, , Blitch, , Tarasoff, Myth and Reality: An Empirical Study of Private Law in Action, 1984 Wisc. L. Rev. 443, 490Google Scholar.

274. See, e.g., Clark 1928 Handbook, supra note 10, at 19, 150, 151, 255, 256, 270-73, 296-98; Comments, Pleading Negligence, 32 Yale L.J. 483, 484, 489 (1923Google Scholar); Clark, , History, Systems and Functions of Pleading, 11 Va. L. Rev. 517, 528, 529, 534, 540, 541, 545, 550 (1925CrossRefGoogle Scholar); Clark, , The Code Cause of Action, 33 Yale L.J. 817, at 817, 837 (1924CrossRefGoogle Scholar); Clark, , The Complaint in Code Pleading, 35 Yale L.J. 259, 266 (1926Google Scholar). See, also, Subrin, How Equity Conquered Common Law, supra note 16, at 962, n. 309.

275. For Field's awareness of the uncertainty inherent in fact ascertainment and law application, see Field-Bowles Correspondence, supra note 36, Letter from Field to Bowles, Jan. 5, 1871: “If the lawyer were omniscient and the judge infallible, if all the facts on both sides and all the law could be known from the beginning, then, indeed, the lawyer would be justified in saying to a client, I will not assist you. But in the present condition of humanity, facts are often misunderstood, the law often mistaken, and one court frequently pronounces right what another court has pronounced wrong….”

276. Dickinson, J., My Philosophy of Law (1941)Google Scholar, reprinted in part in The American Jurisprudence Reader 41, 42, 43 (Cowan, T. ed. 1956Google Scholar). See, also, Kaplan, , Do Intermediate Appellate Courts Have a Lawmaking Function?, 70 Mass. L. Rev. 10, at 10–11 (1985Google Scholar).

277. F. Cohen, Book Review, supra note 248, at 111. On the relationship of critical legal theory to indeterminacy, nihilism, and pragmatism, see Stick, supra note 265.

278. See supra note 257; Ely, J., Democracy and Distrust (1980)Google Scholar. Nor is this the place to enter the philosophic debate of where rights come from and how to order their priority. See, e.g., Dworkin, R., Taking Rights Seriously (1977)Google Scholar.

279. See, supra notes 204, 205, 275.

280. See Tribe, L., Constitutional Choices vii, viii, 3, 6, 11, 55–60 (1985Google Scholar).

281. Solum, supra note 259, at 501, 502.

282. “The evil of mystification would produce only false consciousness, not bad decisions.” Id. at 502.

283. Id. at 498-502.

284. Minow, Interpreting Rights, supra note 242, at 1871-88.

285. See citations in supra note 262.

286. See, e.g., Amsterdam, , Proceedings of the Forty-Fifth Judicial Conference of the District of Columbia, 105 F.R.D. 251, 290, 291 (1984Google Scholar).

287. Minow, Interpreting Rights, supra note 242, at 1880, 1881. It is true that Field conceived of rights in a considerably more wooden and static way than a current scholar such as Minow, who uses the concept of rights not as part of a relatively inflexible legal universe, but rather as part of what she calls “interpretation,” “In law, scholars of many political stripes join in the interpretive turn” (1860, 1861). See, also, Leubsdorf, , Theories of Judging and Judge Disqualification, 62 N.Y.U. L. Rev. 237, 239, 279–283 (1987Google Scholar), in which Leubsdorf explores the concept of judging as “constrained dialogue.” This is explicitly a recognition that both the “mechanical” or “cognitive,” and “political” views of adjudication have shortcomings, and an attempt to find a more realistic and defensible view. It does not seem to me, however, that Field's positions on the importance of predictably enforcing rights, and on the place of Procedure in that quest, are inherently at odds with viewing legal discourse as interpretation or constrained dialogue. Understanding legal discourse as a type of ongoing interpretation, a specialized conversation, or constrained dialogue does treat law application as a more wide-open, flexible enterprise than did Field, and takes more account of politics and individual emotions and agendas. Such modern views, however, do not necessarily eliminate the goals of predictability, treating like cases alike, and expectancy definition and protection. If the modern views do eschew such goals, I maintain that their proponents have more to learn from David Dudley Field than the reverse. Stick has recently explored and explained how legal discourse is nonmechanical; takes into account politics, morals, and values; is somewhat predictive; and is a rational enterprise. Stick, supra note 287, esp. 347-52, 360-65, 372-76, 384, 393, 397-400.

288. See, e.g.. Brown, Givelber, & Subrin, , Treating Blacks As If They Were White: Problems of Definition and Proof In Section 1982 Cases, 124 U. Pa. L. Rev. 1 (1975CrossRefGoogle Scholar) (discrimination law); Schuck, , The Graying of Civil Rights Law: The Age Discrimination Act of 1975, 89 Yale L.J. 27 (1979CrossRefGoogle Scholar) (with respect to legislation).

289. For discussion of the legal realist tenet that judges make law, and criticism of trends in appellate Procedure that seem to have sprung from that tenet, see Carrington, , Ceremony and Realism: Demise of Appellate Procedure, 66 A.B.A. J. 860 (1980Google Scholar). (Carrington stresses the importance of litigants' feeling that decisions are “made in conformity with law and not the personal whim of a judge,” and that the role of appellate courts should not be primarily “oracular” [860].) “Is there a danger that the pursuit of individualized justice may raise doubts about the legitimacy of the judicial role?” Atiyah, supra note 7, at 1270 (See, also, 1271, 1272).

290. Maitland, supra note 225, at 19: “Had the legislature said, ‘Common Law is hereby abolished,’ the decree if obeyed would have meant anarchy.” The merger of law and equity under the Field Code and the Federal Rules may have caused modern lawyers, judges, and legislators to forget that the common law courts and Chancery heard different types of cases, to which different types of Procedure applied. For an empirical look at the difference in case loads between law and equity, see King, Comment, Complex Litigation and the Seventh Amendment Right to a Jury Trial 51 U. Chi. L. Rev. 581, 584–606 (1984Google Scholar). The different procedural system of equity was perhaps appropriate to the typical case-type in that court. See Subrin, How Equity Conquered Common Law, supra note 16, at 977, 985, 991. Those cases heard by common-law courts also had their own disparate Procedures, which may have been appropriate to the particular type of case. Id. at 915.