THE LAWYERS’ CODE CONCLUSION “In the law schools the study of procedure in the past has been pushed into a corner as dull, uninteresting, and unimportant, whereas it is most necessary for the understanding of what has gone on in the past, not to speak of the social need of knowing what effective law administration is.” —Charles Edward Clark, The Handmaid of Justice (1938) In 1838, when David Graham Jr. earned his appointment to the law school at New York University, the newly formed legal program had three departments, with three professors. Reflecting a Blackstonian division of the law, Benjamin F. Butler taught “the Law of Real Property,” William Kent taught the “Law of Persons and Personal Property,” and Graham, the future co-commissioner with David Dudley Field, taught “the law of Pleading and Practice.”1 The lineup was typical of American law schools during the nineteenth century, and though the “substantive” law categories would expand over time to include contracts, sales, partnerships, and equity, virtually every law school into the 1900s maintained a course on practice and pleadings—usually with the shortened titled “Pleading”—as a part of the core curriculum.2 Legal scholars have sometimes mistakenly assumed from the name that “pleading” courses were much narrower than “modern” procedure courses which also cover jurisdiction, trial procedures, joinder, and enforcement of remedies.3 That assumption has it exactly backwards, given that a nineteenth-century course on pleading not only included joinder and jurisdiction (as pleaded elements) and could include a substantial amount of trial procedure and execution (as things 1 See Inaugural Addresses Delivered by the Professors of Law in the University of the City of New York at the Opening of the Law School of That Institution 51 (E.B. Clayton ed., 1838). 2 See Mary B. McManamon, “The History of the Civil Procedure Course: A Study in Evolving Pedagogy,” 30 Arizona State Law Journal 397 (1998). 3 See id. at 407. 2 accomplished by pleading), but also conveyed the practical details of litigation from initiation by summonses or arrest and bail, and also reviewed the elements necessary for bringing claims on contracts, property, and trusts—elements that only in the twentieth century would be reclassified as “substantive” law.4 As a synonym of “practice” (so much so the terms ceased to be used together, as if they were redundant), “pleading” courses came closer to teaching the entirety of law rather than a subset of it. The Field Code commenced the gradual reconstruction of law from a series of writ-based pleading rules to freestanding elements of a claim of right, but as with the abolition of formulary systems, the diminishment of the legal oath, and the fusion of law and equity (see Part II), legal education lagged far behind Field’s new orthodoxy. Until the twentieth century, the standard textbook for pleading courses at basically all American law schools remained Henry John Stephen’s treatise on (English) pleading written twenty years before the Field Code.5 Although revised for an American audience and annotated to keep pace with current developments, the treatise continued to teach students of the importance of the writ system for carefully sequencing the “public adjustment” of litigants’ claims. (See Chapter 1). So far as scholars are aware, no course on code pleading or practice was offered in an American law school until the 1870s, nearly thirty years after the Field Code had become positive law in a significant number of jurisdictions.6 That initial offering came under the auspices of the famous reformer of American legal education, Christopher Columbus Langdell (1826-1906). Upon assuming the deanship of Harvard Law School in 1870, Langdell made Pleading—along with Contracts—one of the first courses to adopt his “case method” of rigorously Socratic legal education.7 Langdell retitled the Pleading course “Civil 4 See Bruce A. Kimball & Pedro Reyes, “The ‘First Modern Civil Procedure Course’ as Taught by C.C. Langdell, 1870– 78,” 47 American Journal of Legal History 257 (2005), 272–273. 5 McManamon, “The History of the Civil Procedure Course,” 407; Kimball & Reyes, “The ‘First Modern Civil Procedure Course,’” 259. 6 McManamon, “The History of the Civil Procedure Course,” 413; Kimball & Reyes, “The ‘First Modern Civil Procedure Course,’” 267. 7 Kimball & Reyes, “The ‘First Modern Civil Procedure Course,’” 266–267. 3 Procedure at Common Law,” apparently the first time procedure as a term entered the law school curriculum.8 Until the fall of 1874, Langdell and his protégé James Barr Ames required no text book but assigned individual cases while Ames was compiling and editing a case book. That fall, Langdell reverted to teaching Stephen’s treatise in the civil procedure course, but over the next two years Langdell offered electives of his own devising, one on “Process, Arrest, and Bail,” and one on “Civil Procedure under the New York Code.” Langdell taught his code procedure course the next few cycles, but then dropped the class after 1878, never to resume it.9 By that time, other schools were still more than two decades away from developing courses in code procedure. The prolific digester Austin Abbott appears to have been the first to publish a case book on code pleading, which he used to teach code procedure at New York Law School in 1893.10 Not until the first decade of the twentieth century would the Code find its pedagogical heyday, with case books appearing for instruction at law schools in the code states of Ohio, Missouri, and New York (for students at Columbia Law School).11 In 1913, Edson Sunderland authored one of the more prominent code pleading case books (in the decidedly uncodified state of Michigan) for his four-part procedure curriculum on common law pleading, code pleading, trial practice, and appellate practice.12 That is not to say that code practice was entirely absent from institutional legal education until the twentieth century. John Norton Pomeroy’s treatise, often known by its shorthand title Code Remedies, became the foundation for the modern remedies course in law schools, and was a major vehicle for teaching the Field Code, especially in western states.13 But creating a new course on 8 Id. at 266. 9 Id. at 267–268. 10 Austin Abbott, Select Cases on Code Pleading with Notes (2d. rev. ed., 1895). 11 Charles M. Hepburn, A Selection of Cases and Statutes on the Principles of Code Pleading (1901); Edward W. Hinton, A Selection of Cases on the Law of Pleading Under Modern Codes (1906); Henry S. Redfield, Selected Cases on Code Pleading and Practice in New York (1903). 12 Edson R. Sunderland, Cases on Procedure Annotated: Code Pleading (1913). 13 John Norton Pomeroy, Remedies and Remedial Rights by the Civil Action, According to the Reformed American Procedure (1876). See also Douglas Laycock, ed., Modern American Remedies: Cases and Materials (Wolters Kluwer, 4th ed., 2010), 1–2. 4 remedies is quite a different thing from displacing or replacing common law pleading and practice, which had been the Code’s major aim. That replacement would come about in time, long after Field’s lifetime. Langdell’s pedagogy shows one key way that replacement came about. Thanks to painstaking work by Bruce Kimball and Pedro Reyes, who reviewed handwritten lecture notes by Langdell as well as notes taken down by Langdell’s students, we have a fairly detailed idea of how Langdell taught his pleading-turned-procedure course.14 Whenever he taught civil procedure, Langdell in his opening lecture announced that he would “confine myself wholly to” English practice before the King’s Bench and “fix upon 1830 as the standard” for analysis. That is, Langdell picked a jurisdiction and period that was purposely outmoded, since the English Uniformity Process Act of 1832 began to streamline the common law forms of action in preparation for further reforms and fusion in the 1850s and 1870s.15 Kimball and Reyes demonstrate how frequently Langdell did not confine himself “wholly” to King’s Bench but rather remarked frequently on how “modern” practice and especially the New York Code differed from the primary system he was describing.16 But that too was in keeping with Langdell’s theory of pedagogy, which he articulated in one draft opening to his first lecture: In order to teach or study practice to any purpose, it is necessary to have [a] fixed and definite system. In studying for practice, one’s great object should be to acquire a knowledge of a system as such; every separate question should be considered with reference.17 Thus, Langdell taught legal practice from King’s Bench in the 1820s to law students in 1870s Boston precisely because the system he described was outmoded, but not too remotely so. Langdell described the practices he taught as “uniform,” meaning they were confined to a single court in a single jurisdiction, and “fixed,” meaning they were frozen by history, standing still long enough for the student to observe them. To use Charles Taylor’s phrasing (see Introduction), the practices of 14 Kimball & Reyes, “The ‘First Modern Civil Procedure Course.’” 15 Quoted in Kimball & Reyes, “The ‘First Modern Civil Procedure Course,’” 271, 278. 16 Kimball & Reyes, “The ‘First Modern Civil Procedure Course,’” 272, 284. 17 Quoted in Kimball & Reyes, “The ‘First Modern Civil Procedure Course,’” 279. 5 King’s Bench in the 1820s were remote enough to American observers in the 1870s that the formerly unarticulated logics could now be articulated, as practices passed from actual praxis into representations of practice.18 Code practice underwent a similar pedagogical transition on nearly the same time frame. In the first decade of the twentieth century, code practice had been in force in a majority of American jurisdictions for nearly forty years when casebooks and handbooks finally made it the subject of their representational accounts.