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6-1-2012 Past the Pillars of Hercules: Francis Bacon and the Science of Rulemaking Daniel R. Coquillette Boston College Law School, [email protected]

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Recommended Citation Daniel R. Coquillette. "Past the Pillars of Hercules: Francis Bacon and the Science of Rulemaking." University of Michigan Journal of Law Reform 46, no.2 (2012): 549-592.

This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. 33129-mre_46-2 Sheet No. 106 Side A 03/21/2013 10:43:50 , IBSON 1750 87, 147, (1620) (from 18-MAR-13 12:07 EAR Y RGANUM O Seq: 1 Seq: OVUM ACONIANA TO THE , frontispiece (1626); R. W. G B 258 (William Twining & Neil MacCormick YLVARUM S unknown 549 ACON ORKS AND OF YLVA B W , S RANCIS ACON , F B RANCIS F OQUILLETTE IBLIOGRAPHY OF HIS See also R. C : A B (1620) Title page of Bacon’s Novum Organum ACON ANIEL note 1, at 87) shows the Pillars of Hercules and a small, brave ship passing infra note 1, at 87) shows the Pillars of Hercules B , ** Reporter, Committee on Rules of Practice and Procedure, Judicial Conference of * ignoring the ancient warnings ‘non “[S]ailing past the Pillars of Hercules and IBSON RANCIS M K eds., 1992). The above frontispiece of Francis Bacon’s N eds., 1992). The above frontispiece of Francis 157 (1950). This Article obviously reflects the private views of the author, not of the 157 (1950). This Article obviously reflects the private views of the author, not of Committee on Rules of Practice and Procedure or the Judicial Conference of the United the States. Special thanks are due to Charles Riordan, the invaluable editorial assistant to Monan Chair. the United States, 1985 to present; J. Donald Monan, S. J. University Professor, Boston College; Charles Warren Visiting Professor of American Legal History, Harvard Law School. PAST THE PILLARS OF HERCULES: FRANCIS BACON AND BACON FRANCIS OF HERCULES: PILLARS THE PAST * RULEMAKING OF SCIENCE THE Coquillette** Daniel R. \\jciprod01\productn\M\MRE\46-2\MRE207.txt F ultra!’” D G beyond them. C Y 33129-mre_46-2 Sheet No. 106 Side A 03/21/2013 10:43:50 A 03/21/2013 106 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 106 Side B 03/21/2013 10:43:50 R R R R R R R R R R R R R M K C Y . 46:2 . . 583 OL .... 586 [V 18-MAR-13 12:07 INES ...... 552 L ...... 553 EBAUCHED BUT ...... 555 I D EBAUCHED BUT ...... 561 Seq: 2 Seq: D HEIR ROCEDURE ISTORICAL AMES T J P ”: H CIENCE IVIL I...... 550 S C ...... 567 OURT OF AMES ...... 558 unknown ACON AND OOPER AND THE J ERCULES C B OOPER AND THE H ...... 579 MPIRICAL ...... 564 H. C E OURCES OF H. C H. RANCIS S OURT OF ODAY F C ...... 580 T DWARD ILLARS OF NTELLECTUAL DWARD P I : E : E ISTORICAL ...... 591 TTACK ON H Rulemaking as Intellectually and Morally Inferior to Rulemaking as Intellectually and Morally Blackstone, Christopher Columbus Langdell— Case Law the Critical Legal from Oliver Wendell Holmes, Jr. to Studies Movement—RulemakingFutile Exercise as a Modern Macaulay, “Civil Prudence,” and the Populist—Rulemaking Democracy as Dangerous to Proposition to His Majesty Touching the Proposition to His Laws of Compiling and Amendment of the England (1616–1617) and Ordinances in Chancery (1617–1620) and the Subrin Thesis and Advancement of Of the Proficience and Humane (1605) and The Learning, Divine (1620)—ANovum Organum Empirical Progressive, Legal Philosophy University of Michigan Journal of Law Reform A AST THE HE ULEMAKING AS AN IGNIFICANCE NTELLECTUAL OF A. The Deductive, Formalist Attack: Edward Coke, William B. Attack of the Legal Realists: Rule “Skepticism” The C. Babington The Political “Whig” Attack: Thomas B. Legal Theory in Practice: A Bacon’s Progressive S I A. Legal Ideology “Rivers” of Western The Great B. Law Pleading of Common The Evolution C.Contribution of Equitable Pleading The Extraordinary A.. . . “New Tools”: The Two Books Francis Bacon’s I. T NTRODUCTION II. R I In honoring a distinguished person such as Edward H. Cooper, it III. “P ONCLUSION NTRODUCTION is customary to make comparisons with famous figures of the past (e.g., “How Bill Clinton reminds me of George Washington”). Fran- cis Bacon (1561–1626), disinherited at birth, rose in the debauched court of James I to be Vice Regent and Lord Chancellor, the second C 550 I \\jciprod01\productn\M\MRE\46-2\MRE207.txt 33129-mre_46-2 Sheet No. 106 Side B 03/21/2013 10:43:50 B 03/21/2013 106 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 107 Side A 03/21/2013 10:43:50 R R R , 4 : A ISA ALL ADE 551 ACON F ADS M 384–93 DVANCE- B L ATHARINE A OQUILLETTE ISE AND HE HEORY RANCIS R OLDEN , T T 18-MAR-13 12:07 IS F , G , H ACON SSASSINATION B IFE OF A ACONIAN AURIER ACON L B B M HE RANCIS , supra note 1, at 448–69. F Seq: 3 Seq: : T HARACTER RANCIS ROUBLED : F C (1963) (Bacon’s early years are de- 3 APHNE DU T TEWART (1975). A good recent account is L 4–126 (William Twining & Neil Mac- AN HE TAIR UESTION S & S M : T Q 294, 311 (2004). ACON RIENDS F ISTORY OF A B Despite cruelly betraying his best his betraying cruelly Despite , is underway. See INDING ARDINE unknown 1 H ORTUNE W HEIR HE F EMPER OF A ACON IBRARIAN HE T RANCIS HAKESPEARE B T : T -S , T , F HE 209–78 (James Spedding, Robert Leslie Ellis & Douglas : T ACON ACON RANCIS Stripped of his offices, he retired in disgrace Stripped of his offices, AURIER 2 B OSTAGE TO B F RANCIS AND M ACON ACON HE supra note 1, at 223–62. As to Bacon, Shakespeare, and Cervantes, , H , F Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , B OQUILLETTE B , T RANCIS XFORD ACON , F O i, vii–viii Kiernan ed., 2000). On the bribery, see C (Michael R. C B TEWART RANCIS APHNE DU HE RANCIS S , F F OCKBURN ANIEL ATHEWS OQUILLETTE LAN D C NTHONY 2013] M OWEN EARNING A Proposition to His Majesty Touching the and his seminal A Proposition to His Majesty Touching (1624), and, some think, New Atlantis (1624), and, some (1623), his prophetic A See See L B & A ORKS OF IEVES (1998). Sir Edwin Dunning Lawrence believed that “every significant piece of Elizabe- W My intention is to establish this thesis by examining Bacon’s Ordi- My intention is to establish this thesis The parallels between Bacon’s career and that of Edward H. Bacon’s career and that The parallels between INTER 3. 2. confessions, see XIV For the original documentation of the charges and Bacon’s 1. 4. Spedding vol. VII, supra note 2, at 347–72. RINKER HE ANE TUDY OF ARDINE M K see N Cormick eds., 1992). For particularly readable biographies of Francis Bacon, see C Cormick eds., 1992). For particularly readable tailed at 23–42); D supporter, the Earl of Essex in 1601 (who was executed), and hav- was executed), in 1601 (who the Earl of Essex supporter, Bacon boys and debt, involving stable of scandals ing a number au- for Stuart divine-right major advocate He became a flourished. Coke and of Chief Justice the hatred thus earning thoritarianism, bribery, in 1621 for by Parliament bar. Impeached the common-law Chancellor, but to receiving huge bribes as Lord Bacon confessed in his words, being the cases fairly, despite, argued that he decided guilty of “corruption.” MENT OF (1996); N.B. C S S D I, see D (1976). For the moral tone of the Court of James J (1999). T Indeed, my thesis is that Bacon invented modern, scientific Indeed, my thesis is that Bacon of inductive, empirical re- rulemaking by fusing his new theories pleading and is, in fact, the search with the traditions of equitable of Charles Clark, Benjamin intellectual forbearer of the likes Kaplan, and Edward Cooper. nances W in England. man powerful most \\jciprod01\productn\M\MRE\46-2\MRE207.txt De Augmentis Scien- where he wrote his great to his country estate, tiarum and even Don Quixote. all of Shakespeare supra note 1, at 222 & 263–64 nn.13 & 14; J Cooper are, of course, obvious. Bacon was one of the great legal obvious. Bacon was one Cooper are, of course, who formed the Unlike the common-law judges minds of his day. in writing bril- cases, Bacon expressed his greatness law by deciding Chancellor, drafting one of the liant juristic treatises and, as Lord (1617–1620).first modern rule systems, the Ordinances in Chancery Denton Heath eds., 1874) [hereinafter Spedding (all volumes)]. This great edition of Ba- Denton Heath eds., 1874) [hereinafter Spedding con’s works remains the most widely cited by scholars, although a new project by Oxford University Press, T than or Jacobean literature emanated from Bacon’s pen.” K. E. Attar, Sir Edwin Dunning- Lawrence: A Baconian and His Books, 5 L C Y 33129-mre_46-2 Sheet No. 107 Side A 03/21/2013 10:43:50 A 03/21/2013 107 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 107 Side B 03/21/2013 10:43:50 R M K C Y . 46:2 ONSPIRACY OL C [V 18-MAR-13 12:07 These show These 5 OLOKH V HE ROCEDURE P Seq: 4 Seq: IVIL C unknown OURCE OF S ISTORICAL H HE University of Michigan Journal of Law Reform I. T 6 Bacon’s innovations earned him contempt and ferocious critical earned him contempt and ferocious Bacon’s innovations The significance of Bacon’s revolutionary approach to law mak- The significance of Bacon’s revolutionary 5. Spedding vol. XIII, supra note 2, at 61–71. 6. Eugene Volokh, History Doesn’t Repeat Itself, But It Rhymes, T both indebted to Roman legal science—setboth indebted to Roman legal the stage for Bacon’s Bacon’s great debt to Roman jurisprudence and Renaissance criti- and Renaissance jurisprudence great debt to Roman Bacon’s has made Bacon the unique contribution but also show cal thinking true as to is particularly This progressive jurisprudence. to modern case than retroactive rules, rather of law by prospective the forming of Ba- such rules in light amendment of the testing and law, and reasoning and theories of inductive scientific con’s revolutionary empirical observation. present day. I will during his life and up to the opposition, both opposition that three particular sources of this conclude by noting As Mark to scientific, progressive rulemaking. remain relevant repeat itself, but it to have said, “History doesn’t Twain was thought rhymes.” (Feb. 18, 2005, 1:51 PM), http://volokh.com/posts/1108756279.shtml. It seems that al- (Feb. 18, 2005, 1:51 PM), http://volokh.com/posts/1108756279.shtml. It seems that the though this quote has been attributed to Mark Twain, no one has been able to find was original published source (as far as I can tell). The UCLA Law School research library once asked to track down the source, and could not definitively attribute the quote to Twain. 552 (1616). of England Laws of the Amendment and Compiling \\jciprod01\productn\M\MRE\46-2\MRE207.txt ing can only be appreciated in its historical context. This context ing can only be appreciated in First, there is the great ideological has three fundamental aspects. jurisprudence and its ongo- contribution of Roman law to Western to a second great tradition: the ing importance as a continuing foil important, evolution of an in- literally insular, but extraordinarily In turn, that evolution of English cremental English “common law.” illustrated than by the de- common law is nowhere more powerfully and the causes of action. velopment of common-law pleading jurisprudence, born of the relig- Finally, the emergence of equity a new Renaissance humanism—ious tradition of the Church and bold innovations. 33129-mre_46-2 Sheet No. 107 Side B 03/21/2013 10:43:50 B 03/21/2013 107 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 108 Side A 03/21/2013 10:43:50 R at AW 553 L AW IN 14–62 ICTION- L D (1973). OMMON Short of ISTORY 1–10 (2d ed. OMAN C 12 H XFORD AW 18-MAR-13 12:07 R L O The Church, (1987) (describing EGAL 10 AW AND L ERITAGE L are all of Roman are all of ONCISE H OMMON 9 C NGLAND C EACHING OF NGLISH HE OMAN E EGAL T Seq: 5 Seq: E T This national legal sys- L , R HE 13 NGLISH AIR AW OF , T E N L C TEIN MERICAN -A S D. M ETER NTRODUCTION TO NGLO unknown IRTH OF THE and “legislation” I 316 (J. R. V. Marchant & Joseph F. Charles eds., 316 (J. R. V. Marchant & Joseph F. Charles AW AND THE 8 A N RNOLD B 1.2–.3de Zulueta ed. & trans., 1946). (F. L & P HE , A HE & A , T AIUS , T ANON AKER G ICTIONARY ULUETA “civil,” , C 7 Z D and establishing a consistent, national system and establishing a consistent, national UCKLAND J. H. B 11 AENEGEM ATIN 1055 (R.E. Allen ed., 8th ed. 1990). Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , supra note 10, at 55–63. C OQUILLETTE L ELMHOLZ S AN ’ NSTITUTES OF RANCIS DE intact, W. W. B F I R. C 1200 (1990) (describing early Roman law teaching in the English NGLISH HE ASSELL E A. Legal Ideology Western “Rivers” of Great The C ANIEL OQUILLETTE D C ROUND 2013] A URRENT Id. at 58–59. See also See See See generally see generally see also C folc-moots— What made England unique was not that it was free of Roman unique was not that it was What made England Roman legal science underlies all of modern rulemaking. In- rulemaking. all of modern legal science underlies Roman INTER 13. 10. 12. 7. From “regulare.” “Regula” refers to a straight stick. See 11. 8.9. From “civilis.” “Civis” refers to a citizen. Id. at 206. usually written law. Id. From “lex legis,” the Roman term for specific, enacted, and NGLAND M K the 76–77; (3d ed. 1990); R. C. V ARY OF the impact of Roman law on the evolution of canon law). of law that was restricted to just those matters of particular concern of law that was restricted to just those serious crimes (i.e., “felonies” to the central government: namely, involving “free tenure” (i.e., not “misdemeanors”), land disputes on the manors, or “unfree ten- not the local copyhold of the serfs actions, all of which could have ure”), and certain important civil financial consequences to the government. trained judges and always concerned about challenges to the legiti- trained judges and always concerned and Norman Angevin descendants macy of their rule, the Normans Anglo-Saxon local courts—hit on the idea of leaving the traditional 2004); traditionally centered in Rome and the guardian in the darkest days in Rome and the guardian traditionally centered to contempo- early applied Roman law concepts of Latin literacy, gradually followed problems, and its lead was rary administrative throughout Europe. E (2d ed. 1974); R. H. H W \\jciprod01\productn\M\MRE\46-2\MRE207.txt tem, “common” to all of the counties and shires, soon was termed tem, “common” to all of the counties the “common law.” universities). origin. Preserved by the great legal projects of the Emperor Justin- of the Emperor great legal projects by the origin. Preserved Europe’s at the dawn of twelfth century rediscovered in the ian and it still pro- such as Bologna, Paris, and Oxford, great universities, of Continental jurisprudence. vides the cornerstone law influence—the its universities Roman tradition was strong in law—butand in its canon gave rise rather that its insular character was invented The second “river” of legal culture to a counter force. problems they faced in adminis- by conquerors to address specific hostile population. tering, to them, a foreign and often rev. ed. 1953); T deed, the words “rule,” deed, the C Y 33129-mre_46-2 Sheet No. 108 Side A 03/21/2013 10:43:50 A 03/21/2013 108 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 108 Side B 03/21/2013 10:43:50 R R R R M K C Y 17 AY (A. L XFORD AW . 46:2 L OL [V ISTORY OF 18-MAR-13 12:07 25–36 ed. (2d OMMON In the end, But between C 18 AW , A H 14 L AWSON 1297 (1980). CTION AT OMMON A AW P. D Seq: 6 Seq: C The “grand jury” (i.e., L 176, 793, 1178, 1285, 1843 (Clif- supra note 13, at 84–90; O 16 to swear) to answer ques- to swear) to answer , OHN J AW ORMS OF L AKER F B see also 15 NGLISH OMPANION TO E unknown C OUNDATION OF THE F QUITY AND THE XFORD , E O HE ICTIONARY OF ISTORICAL , T D AITLAND supra note 13, at 63–83, 612–27 (same). HE , H , , T ALKER supra note 10, at 160–62. See AKER , supra note 10, at 154–55. ILSOM F. W. M , OWITT M. W J University of Michigan Journal of Law Reform AVID ARL supra note 7, at 642 (defining juror); S.F.C. M D E , , would flow with the British Empire to lands as far Codex, would flow with the British Empire OQUILLETTE OQUILLETTE See See See generally See 118–29 (1960). Finally, in attempting to limit access to the centralized, common- Finally, in attempting to limit access To this “assize” idea, the Norman Angevins added a second: jury the Norman Angevins added To this “assize” idea, In developing this system, the Norman Angevins had three great had Angevins Norman the this system, In developing 16. C 14. 17. 18. 15. ICTIONARY UDGES 1981); C H. Chaytor & W. J. Whittaker eds., 1910) (explaining the evolution of writs and providing examples of them); B D J this “river” of incremental, evolutionary, court-made procedural this “river” of incremental, evolutionary, and philosophy from the law, so different in both jurisprudence Roman Australia, Nigeria, Kenya, New from that Atlantic island as India, Canada, and yes, the United States, Zealand, Hong Kong, Barbados, regular sessions in London, the small band of trained judges would in London, the small band of trained regular sessions courts” in the “justices in eyre” and hold “assize “ride circuit” as to the people and common-law justice out county towns, bringing manpower. thus stretching judicial 554 \\jciprod01\productn\M\MRE\46-2\MRE207.txt “big,” usually twenty-one) continued this notion of presentment, re- “big,” usually twenty-one) continued to the visiting judge, while the porting on crimes in the county replaced ordeal as a mode of “petit jury” (usually twelve) early these Norman French terms for proof for crime. Indeed, we still use terms such as “attorney,” “voir juries, as well as other “law” French and “oyez” in modern jury trials. dire,” “felony,” “misdemeanor,” law courts, the Norman Angevins developed a formulary system of law courts, the Norman Angevins the ancestor of modern common- causes of action, which remain by a statute or central decree, but law pleading. This was not done over many years. by the evolving practice of the courts trial. What better way to save judicial labor and to ensure popular way to save judicial labor and trial. What better population in order than to “coopt” the local support for judicial juries in The Norman Angevins had developed the process itself! citizens under of administration, putting local Normandy as a tool from the Latin jurare, oath (hence “juror,” issues. tions about taxable assets and other ideas. The first was leveraging scarce judicial resources by judges resources scarce judicial first was leveraging ideas. The central courts—the The original “riding circuit.” the King’s Bench, Excheques—had Pleas, and the Common and specific jurisdiction built by Hall in London, at Westminster met regularly eventually standing. in 1099 and still William Rufus the Norman ford Walsh ed., 1959) (providing French roots for “attorney,” “felony,” “voir dire,” and ford Walsh ed., 1959) (providing French roots for “attorney,” “felony,” “voir dire,” “oyez”). 33129-mre_46-2 Sheet No. 108 Side B 03/21/2013 10:43:50 B 03/21/2013 108 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 109 Side A 03/21/2013 10:43:50 R R 20 555 ILLIAM W EGISTERS OF R 18-MAR-13 12:07 REDERIC ARLY , E I 585 (2d ed., 1898). & F OCIETY DWARD S E Seq: 7 Seq: OLLOCK P ELDEN IME OF T REDERICK unknown EFORE THE B 19 AW L NGLISH Many wrongs suffered by potential plaintiffs Many wrongs suffered by potential E supra note 10, at 149–52; 87 S 21 Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , supra note 10, at 152–53. , These modes gained their legitimacy by involving These modes gained their legitimacy 22 B. Pleading of Common-Law The Evolution ISTORY OF H OQUILLETTE HE C 2013] OQUILLETTE , T Id. at 152–53, 158–59. See xi–xii Hass & G. D. G. Hall eds., 1970). (E. de Access to that other great Norman invention, jury trial, was one Access to that other great Norman Common-law pleading linked process, substantive rights, and linked process, substantive Common-law pleading INTER 22. 20. 19. system that formed “the In the immortal words of Maitland, it was this formulary 21. C RITS AITLAND M K W M W cul- great that other rival to and ideological historical an creating the law of Rome. tural river, system, and the courts were a restricted-entry The common-law in blank from that writ. These were purchased ticket was a judicial Lord Chancellor in the Kingdom, the office of the center of literacy set of appropriate London. The Chancery kept a or Chancery, in The appropriate as the “Register of Writs.” forms, later reproduced like complaints could then be inserted, much names of the parties forms used today. But—andand subpoena was the key here point—onlycause of action that correctly described the the writ case would do, and the pa- presented by the facts of the plaintiff’s described by the writs were origi- rameters of the causes of action nally very narrow. \\jciprod01\productn\M\MRE\46-2\MRE207.txt strongest bulwark against Romanism.” See 2 F were not described by writs in the Register and thus lay outside the were not described by writs in the of action. Remedies for these acceptable common-law causes Church courts, the feudal courts, wrongs were only available in the at all. the traditional local courts, or not law” pleading system, as of the great attractions of this “common were “courts of record,” and was the fact that common law courts not all causes of action were enti- kept good central accounts. But earlier causes of action, described tled to jury trial. In fact, all of the by their first word as “Praecipe” in a family of writs forms known modes of proof, namely writs, were triable instead by “primitive” name as “compurgation”) and oath helping (known by its Latin trial by battle. God directly in the process, not unlike ordeals in criminal cases. God directly in the process, not of original oaths as sacred objects, Oath helping involved a contest of which would have to be perfect backed by supporting oaths, all in form. Of course, God would cause an oath helper giving a false sacred oath to slip up. This mode of “primitive” proof was required mode of proof in one system of forms, the so-called “writ” system. one system of forms, the so-called mode of proof in C Y 33129-mre_46-2 Sheet No. 109 Side A 03/21/2013 10:43:50 A 03/21/2013 109 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 109 Side B 03/21/2013 10:43:50 R R R M K C Y 23 RIAL BY . 46:2 , T OL [V writs, with But unlike 18-MAR-13 12:07 EILSON 24 writs, including 26 Seq: 8 Seq: unknown supra note 13, at 440–44. , AKER B supra note 14, at 119. For a classic, see G. N , writs. The idea was the same for the Writ of Right for the Writ idea was the same writs. The ALKER supra note 10, at 153–55. , University of Michigan Journal of Law Reform OQUILLETTE This was also true of most of the Praecipe This was also true of most of the (1890) (providing an account of judicial dueling). See id. at 154–55. Id. 152–55, 169–70; see also See id. at 159; W 25 writs were to be tried by jury. Questus Est Nobis writs were to be Praecipe writs, the One prevalent feature of both the ancient Praecipe One prevalent feature of both Why were these early causes of action linked to a mode of proof early causes of action linked to Why were these 25. 26. 24. C 23. OMBAT C the and the Questus Est Nobis writs is their “irrational” modes of proof, reduced to a “yes” or “no” answer. that the issue decided had to be helping or not, and the “Posses- God either causes a slip in the oath Either a person had been sory Writs” continued in that tradition. (i.e., “since the King returned thrown off land during a brief period that each trial involve just one from France”) or not. This required a cause of action set forth in the issue that was properly framed as pleading began by narrowing legal correct writ. All of common law then be resolved by a simple disputes to this one issue that could in this process was a very narrow decision of “yes” or “no.” Inherent writs simply restored the set of remedies. All the Questus Est Nobis (i.e., no damages, simply restitu- prevailing party to possession tion). 556 (property of Right the Writs in contained of action causes in the Detinue, seal), Trover, under Covenant (documents ownership), Praecipe and other at the land title disputes of action for Capite, the cause Tenant in (i.e., hired tried by “battle” but these were feudal system, top of the until padded weapons at each other with that whacked champions to give up). one representing the party at fault God caused the \\jciprod01\productn\M\MRE\46-2\MRE207.txt other than jury trial? Probably because jury trial as a source of civil, Probably because jury trial other than jury trial? But by the reign judgment was still evolving. rather than criminal, writs, were set of remedies, the Questus Est Nobis of Henry II, a new Writs,” they were referred to as the “Possessory introduced. Often to possession if those in occupations of land designed to restore by force—clearly“disseised,” or dispossessed to reduce an effort of seeking a judicial remedy. “self help” in anticipation Trover, Debt Detinue, and Writ of Right. The remedy was simply to Trover, Debt Detinue, and Writ Covenant, an exception, the only return the unjust enrichment. In of the covenant. Once the narrow remedy was specific performance met (i.e., a document under seal terms of the covenant writ were the only defense permitted was signed by the party to be charged) “non est factum,” meaning “not my deed—not my signature.” The or only issue to be decided, by wager of law, was therefore “yes” “no”—it was the defendant’s deed or it was not. 33129-mre_46-2 Sheet No. 109 Side B 03/21/2013 10:43:50 B 03/21/2013 109 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 110 Side A 03/21/2013 10:43:50 R R R R 29 557 3–196 353–78 supra note AW , L 18-MAR-13 12:07 ONTRACT supra note 10, at , C AENEGEM OMMON C C AW OF supra note 14, at 607. In AN , V L OQUILLETTE Seq: 9 Seq: C The original require- The original ALKER 27 OMMON The reason was clearly the ISTORY OF THE C 28 H ONCISE unknown ISTORY OF THE , A C Secondly, a cause of action was never Secondly, a cause of action was 30 , A H LUCKNETT fiction. IMPSON Francis Bacon and the Science of Rulemaking Science the and Bacon Francis supra note 10, at 155–57, 171–72; see also , 2013] OQUILLETTE See id. at 250–52. On the Indebitatus fiction, see W See Slade’s Case, 4 Coke’s Reports 92(b) (1602), in See, e.g., A.W.B. S But the gradual evolution of the causes of action and their ac- But the gradual evolution of the There is not enough space here to describe the eventual expan- space here to describe the There is not enough In the last stage of the evolution of common-law pleading, the pleading, common-law of the evolution of last stage In the INTER 30. 29. 27. C 28. M K 261–63. (5th ed. 1956). Maitland’s words, these “forms of action” were “living things” that grew in the context of Maitland’s words, these “forms of action” were “living things” that grew in the context regular, adjudicated cases: (1975) (explaining the conceptual history of the action of assumpsit). Also see the lucid, if (1975) (explaining the conceptual history of the action of assumpsit). Also see the lucid, outdated, account in T.F.T. P writs reigned supreme, with From then on, the Ostensurus Quare remedies as their primary fea- jury-trial modes of proof and damage writ” of modern common-law ture. Trespass became the “mother causes of action. to common-law pleading that companying writs gave a “mindset” was almost entirely judge made proved durable. First, the law radical reforms, such as that of through incremental case law. Even legal fictions—inSlade’s Case, were done through legitimizing that case, the Indebitatus W \\jciprod01\productn\M\MRE\46-2\MRE207.txt (“with force of arms”) contra act done vis et armis (“with force of ments were an peace”). The original trespass pacem nostrum (“against the King’s obviously impossi- a physical assault, and it was action contemplated particu- back in as good shape by restitution, ble to put the victims You hit someone and suffering and physical injury. larly given pain victim’s prior con- and you cannot “restore” the with a baseball bat, than answer “yes” actions, juries could do more dition. In trespass give damages. and “no”; they could to eventually cover actions, largely by legal fiction, sion of trespass on the Case in Assumpsit (a everything from Ejectment to Action so far removed from a violent at- contract remedy which could be tack as to involve simple nonfeasance). desire by plaintiffs to avoid irrational modes of proof and to gain desire by plaintiffs to avoid irrational old rule for using the older writs, damages, not just restitution. The in Slade’s Case in 1602, which when appropriate, was finally revoked both the King’s Bench and the also permitted trespass action in of more business on both. Common Pleas, conferring the benefits ” or Trespass Writs, the system Writs, the Quare” or Trespass of “Ostensurus introduction to give allowed the jury “no” answers, and beyond “yes” or evolved in the that was triable a cause of action Trespass was damages. was more Pleas, because it the Common rather than King’s Bench, civil actions. than the usual like a crime 13, at 29–54. C Y 33129-mre_46-2 Sheet No. 110 Side A 03/21/2013 10:43:50 A 03/21/2013 110 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 110 Side B 03/21/2013 10:43:50 R R M K C Y . 46:2 OL [V supra note 10, , 18-MAR-13 12:07 Finally, the com- Finally, 31 OQUILLETTE Seq: 10 Seq: . 909, 914–18 (1987). EV unknown . L. R A and the Subrin Thesis Growing from the insecurity of an occupying Nor- Growing from the supra note 19, at 588. , 32 University of Michigan Journal of Law Reform AITLAND C. Equitable Pleading The Extraordinary Contribution of & M See Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Our forms of action are not mere rubrics nor dead categories; they are not the out- Our forms of action are not mere rubrics nor applied to pre-existing materials. They come of a classificatory process that has been are institutes of the law; they are—we say it without scruple—living things. Each of enjoys a longer or shorter day of vigour, them lives its own life, has its own adventures, into a decrepit and friendless old usefulness and popularity, and then sinks perhaps age. A few are still-born, some are sterile, others live to see their children and chil- dren’s children in high places. The struggle for life is keen among them and only the fittest survive. Common-law courts were never intended to be the exclusive Common-law courts were never 31. 32. is entirely excluded; all is to be In Subrin’s words, “[i]n the Middle Ages discretion OLLOCK Procedure in Historical Perspective, 135 U. P at 158, 175–76. mon-law system was restrictive. It was carefully designed to remedy designed It was carefully system was restrictive. mon-law wrongs—wrongsonly certain Norman interest to the of particular narrowing The older causes of action also required Angevin Crown. evolution of the or “no” answer. Even after the all issues to a “yes” juries the power to award dam- trespass writs gave Questus Est Nobis of the com- of cases, it was in the best interest ages in a wider range London, to keep particularly in circuits far from mon-law judiciary, This avoided the as possible for the trier of fact. matters as simple discretion, as op- cases were resolved by judicial appearance that application of the predictable, and narrow posed to the routine, formulary writs. 558 a right, a substantive stood for action cause of Each procedural. just A divi- mode of proof. and a particular defined remedy, carefully would be law” and “substantive “procedure” sion between common-law ancestors. to our incomprehensible \\jciprod01\productn\M\MRE\46-2\MRE207.txt P source of all legal remedies. They were only to be the exclusive source of all legal remedies. They causes of action of interest to the source of legal remedies for those requirements of the writs and Crown and that also met the narrow man elite, both jury trial and formulary pleading removed responsi- trial and formulary pleading man elite, both jury and devolved it into the hands of bility from the professional judge juries, and also into a system of the lay people of the region, as mode of proof, and fixed forms, each with its own requirements, remedies, that—in theory at least—made life as easy as possible for for the parties, and as legitimate the jury, as predictable as possible public. as possible in the eyes of a suspicious fixed by iron rules.” Id. at 918. This is largely, although not entirely, true. For a discussion of common law action without writs, “plaints,” and “Querelos,” see C 33129-mre_46-2 Sheet No. 110 Side B 03/21/2013 10:43:50 B 03/21/2013 110 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 111 Side A 03/21/2013 10:43:50 R R R R R 559 Access 35 18-MAR-13 12:07 But the grow- But the 33 34 In theory, therefore, Seq: 11 Seq: 36 . 647, 658–59 (1974). EV Each of these courts supple- . L. R 37 ICH note 13, at 112–34 (describing the Courts of note 13, at 26–33; Charles Donahue, Jr., Roman unknown note 13, at 64–66, 114–20. supra supra , , supra , AKER AKER B B AKER supra note 10, at 185–88. see also Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , supra note 10, at 205–09. , OQUILLETTE C 2013] OQUILLETTE Id. at 151–52, 185; B Id. at 185. See generally See id. at 183–84; See During the sixteenth century, under strong Tudor monarchs, During the sixteenth century, The medieval King was always regarded as the source of “com- was always regarded as the The medieval King INTER 35. 36. 37. C 33. 34. M K Chancery and Equity). Canon Law in the Medieval English Church: Stubbs vs. Maitland Re-Examined After 75 Years in the Light of Some Records from the Church Courts, 72 M to the Chancellor’s court was limited in one very important way: no court was limited in one very to the Chancellor’s remedy in the common-law courts case with a legal remedy (i.e., a as a cause of action) could be entertained. ing power of a centralized royal Executive, particularly during the particularly royal Executive, of a centralized ing power monarchs, saw the the reigns of the mighty Tudor Renaissance and the Con- a new style of supplemental jurisdiction, development of powerful, was the which the oldest, and the most ciliar Courts, of Chancellor, or the Chancery. Court of the Lord W descended courts, local “Supplemental” pleading. common-law So did for centuries. , continued Anglo-Saxon folc-moots from the ecclesiasti- formidable courts, with their and Church feudal courts of what control of much retain of excommunication, cal remedy court. business of a probate regarded as the today is \\jciprod01\productn\M\MRE\46-2\MRE207.txt there could be no competition between the Chancery and the com- there could be no competition between fill the common law’s gaps. mon law. The Chancery could only Like the Chancery, these other “conciliar” courts grew in influence. of the King’s Privy Council, such were based on a powerful member Court of Admiralty), the Lord as the Lord High Admiral (The High Court of Requests), the Lord High President of the Privy Seal (The Court of the Constable and Constable of Earl Marshal (The sitting as an extraordinary Marshal), and the entire Privy Council criminal court (The Star Chamber). mented the common-law courts in a particular way. For example, mented the common-law courts in foreign trade and on the high the Admiralty heard cases arising poor people, the Constable seas, the Requests heard cases between and the Star Chamber heard and Marshal heard military cases, and were not triable in the cases that threatened national security ordinary courts—a to today’s terrorist problems. concept relevant with the common-law courts as, In theory, none competed directly plete justice,” and his spiritual advisor, the Lord Chancellor, was his his spiritual advisor, the Lord plete justice,” and This function was to meet this responsibility. natural designee role as head of a from the Lord Chancellor’s completely separate writs. from the supply of common-law secretariat, and thus C Y 33129-mre_46-2 Sheet No. 111 Side A 03/21/2013 10:43:50 A 03/21/2013 111 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 111 Side B 03/21/2013 10:43:50 R R M K I C Y ILLIAM ISTORY NGLISH ONDON . 46:2 Com- E , H , L OL LIZABETH 41 , 1603–1641 E [V IFOOT 18-MAR-13 12:07 NDER OMMONS ISTORY OF NGLAND U ’ C H E C.H.S. F OURT Indeed, no “com- OCIAL C OCTORS 40 D Seq: 12 Seq: , A S AWYERS IN NNS OF L 383–425 (7th ed. 1964); IX W I IVIL ARDING HE RITERS OF C H , T AKING W HE LAN M REST , T unknown 335–53 ed. 1945); Subrin, supra note 31, at (3d IVILIAN R. P C AW EVACK HE L Finally, trial process was very different, Finally, trial process AW IN THE , T 38 298–307, 321, 329 (1949). ILFRID , L P. L W AW NGLISH L LLEN RIAN (1977) (providing a history of society and its members). E B A EMP OQUILLETTE , 1550-1640 1–46 (1972) (explaining the social history of the English 39 OMMON K C OMMONS supra note 13, at 177–99; A ISTORY OF R. C , ’ C TUARTS See generally S University of Michigan Journal of Law Reform ANIEL AKER , A H ARLETON B D C ARLY OCTORS See See See E , D OURCES OF THE 167–93 See generally (1960). S This process, used in all these courts, was what we today would in all these courts, was what This process, used For our purposes, the most important thing about these courts is about these important thing purposes, the most For our The difference was reinforced by ideological tension between the The difference was reinforced by 40. 39. 38. of equitable “bills,” see id. at 202–04; For examples see also 41. OLDSWORTH AW QUIBB private guilds with no university connections. private guilds with no university 918–21. mon law” was taught in any English university until Blackstone’s mon law” was taught in any English under the sponsorship of the lectures at Oxford in 1753. But emerged, the Doctors of Civil Tudors, a rival professional group Members of this group all had Law of Doctors’ Commons, London. and civil law, and had a mo- university doctorates earned in Roman and the Admiralty. nopoly on proceedings in the Requests based far more on production of documents and affidavits and far production of documents and based far more on less on in-court testimony—something where the one would expect rather than juries. experienced specialist judges triers of fact were heart of equity process, or “equity,” although the call “equitable” fundamental dif- the Chancery. The most jurisprudence remained and equity, besides the ab- ference between common-law pleading discretion of the judge and the sence of the jury, was the greater pleading practice, at least in the relative simplicity of the “bills” and earlier centuries. L AND mon-law lawyers and the civilian Doctors could both appear in mon-law lawyers and the civilian Chancery proceedings. H AND THE 22–32 (1988). 560 qua non a sine was remedy of a common-law absence by definition, jurisdiction. of their pleading. common-law procedure from used a different that they to state free of the need and thus were had jury trials, First, none than fact. Second, rather for lay triers of and simply issues clearly to initiate pro- causes of action and writs looking to common-law recited the facts used far simpler “bills” that ceedings, the courts sought. and the remedies \\jciprod01\productn\M\MRE\46-2\MRE207.txt practitioners. The common-law barristers who practiced in the com- practitioners. The common-law barristers the Inns of Court in London—mon- law courts were trained in bar). (1973) (illustrating the life of civil lawyers in early seventeenth-century England); G. D. (1973) (illustrating the life of civil lawyers in early seventeenth-century England); G. S 33129-mre_46-2 Sheet No. 111 Side B 03/21/2013 10:43:50 B 03/21/2013 111 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 112 Side A 03/21/2013 10:43:50 R R R 561 18-MAR-13 12:07 CIENCE S Seq: 13 Seq: MPIRICAL . 12 (2009); Subrin, supra note 31. E EV unknown It was particularly troubling that no troubling It was particularly 42 U. L. R ILLIAMS But the law of equitable pleading, which, But the law of equitable pleading, 45 W supra note 41, at 97–148. Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , ULEMAKING AS AN OGER II. R supra note 31, at 963, 961–82. 44 . 1015 (1982); Edward H. Cooper, Extraordinary Writ Practice in Criminal OQUILLETTE One great figure, an innovative genius of the first order, One great figure, an innovative EV C 46 2013] Id. at 149–97. See Indeed, as Stephen Subrin has brilliantly demonstrated, this Subrin has brilliantly demonstrated, Indeed, as Stephen . L. R 43 A The profound influence of traditional English equity and its ide- The profound influence of traditional Not surprisingly, the common lawyers were suspicious of the dis- of the were suspicious lawyers common the surprisingly, Not INTER 43. 44.45. Subrin, , 130 See, for example, the classic Stephen B. Burbank, The Rules Enabling Act of 1934 46. few men who were gathered Maitland was speaking of the common lawyers: “Those 42. M K U. P at Westminster round Pateshull and Raleigh and Bracton were penning writs that would run at Westminster round Pateshull and Raleigh and Bracton were penning writs that would in the name of kingless commonwealths on the other shore of the Atlantic Ocean; they were W \\jciprod01\productn\M\MRE\46-2\MRE207.txt Cases: Analogies for the Military Courts, 98 F.R.D. 539 (1983); Edward H. Cooper, Aggregation and Choice of Law, 14 R client had an absolute “right” to equitable relief in the Chancery. relief in the to equitable an absolute “right” client had “equitable” factors—includingSubjective hands” familiar “clean the and vulnerable, to- concern for the weak doctrine and a traditional least in theory) freedom of the equity judge (at gether with the from prior precedents—caused among this suspicion and unease lawyers made class. After all, the common common law professional merchants and a the private interests of their living protecting of outcome that sought, above all, predictability landed squirearchy and ideological property. This was a professional and security of and last for centu- survive the English Civil War tension that would ries. ology on modern American civil procedure, so brilliantly described ology on modern American civil and Cooper, is clearly beyond the by the likes of Subrin, Burbank, scope of this paper. cretionary powers of the Lord Chancellor and resented competi- and resented Lord Chancellor powers of the cretionary lucrative to the latter’s with regard the Doctors, especially tion from in the Admiralty. monopoly borrowing Maitland’s words, would so influence the “kingless com- borrowing Maitland’s words, would not spring, fully formed, from the monwealth” beyond the seas, did or even those of the sixteenth medieval practices of the Chancery century. would make the conceptual breakthrough in law reform that would would make the conceptual breakthrough tension persisted through the history of American procedural re- through the history of American tension persisted of 1834 to form, from Joseph Story’s Commentaries on Equity Pleading Code of 1897, and, finally, the the Field Code of 1848, the Thorp of equitable pleading in the Ena- ultimate victory of the ideology “equity-prone view of proce- bling Act of 1934 and Charles Clark’s 1938 Federal Rules of Civil dure” that would dominate the Procedure. C Y 33129-mre_46-2 Sheet No. 112 Side A 03/21/2013 10:43:50 A 03/21/2013 112 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 112 Side B 03/21/2013 10:43:50 R R R M K C Y IL- W . 46:2 OL [V REDERICK I 705 (2d ed. the first of 18-MAR-13 12:07 50 & F DWARD E OLLOCK P IME OF Seq: 14 Seq: T REDERIC supra note 3, at 30–59. , EFORE THE B ATHEWS AW unknown Born to a father who was the head Born to a father L 47 His early life was a constant struggle A distinguished legal career seemed 49 48 NGLISH E supra note 1, at 30–31. , supra note 1, at 3–4. OWEN , ISTORY OF B H supra note 1, at 75–80; M HE , , 2 T University of Michigan Journal of Law Reform OQUILLETTE OWEN B C Id. at 23–24; see See See AITLAND M But in fact, nothing could have been further from the truth. The But in fact, nothing could have been But Bacon did manage, at age twelve, to matriculate at the great But Bacon did manage, at age twelve, Bacon’s genius as the literal inventor of modern inductive social modern inductive inventor of genius as the literal Bacon’s 48. 49. I had greatest part in his love of all In Bacon’s words, “For my father, though I think 50. 47. of the Chancery Court, Lord Keeper Sir Nicholas Bacon (Elizabeth Court, Lord Keeper Sir Nicholas of the Chancery a mother, Lady her “Lord Chancellors”), and I did not ennoble Cecil (Lord Burgh- Calvinist sister-in-law of William Ann Bacon, the in England), Ba- and probably the richest man ley, Lord Treasurer, In retrospect, appeared to be “to the manor born.” con would have and head of the Lord Chancellor himself, that Bacon became to be an obvious like his father, would seem Chancery Court herself had, re- “wiring.” Indeed, Queen Elizabeth outcome of his portedly, “‘delighted to confer with him’ as a boy” and called him “the young Lord Keeper.” practically guaranteed. by a former marriage, Bacon was youngest of eight children, six slighted by his father’s will. his children, yet in his wisdom served me as last comer.” Id. at 41. LIAM 1968). In terms of “right and wrong,” he could even more accurately be describing the Lord Chancellors and equity. many blots on Bacon’s character. he is today regarded as one of Trinity College, Cambridge, where entered, at age fifteen, Gray’s Inn many outstanding graduates. He making right and wrong for us and for our children.” F 562 conqueror. ideological as an its rule for pleading equitable equip Bacon man was Francis and hated, this feared, Much admired, (1561–1626). politically and his rise power as a writer, his extraordinary science, day, Vice England of his man in the second most powerful to be the the fact that, first I, has historically overshadowed Regent to James was a lawyer. and foremost, he \\jciprod01\productn\M\MRE\46-2\MRE207.txt for education and preferment, and, despite appeals to his wealthy for education and preferment, and, very much on his own. Queen uncle, Lord Burghley, Bacon was distrusted him, and forced Elizabeth, a shrewd judge of character, and supporter, the Earl of Es- Bacon to betray his one true friend to Essex’s execution, sex. Bacon’s testimony would lead 33129-mre_46-2 Sheet No. 112 Side B 03/21/2013 10:43:50 B 03/21/2013 112 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 113 Side A 03/21/2013 10:43:50 R R R R R R , , , 563 ACON AMES SSAIES ACON 52 J ODERN E B B OLITICAL see M in , P ARLY RANCIS 18-MAR-13 12:07 F E NTHONY AMES A TATUTE OF note 1, at 131–74. TUDY OF note 1, at 70. S EFIGURING OF Seq: 15 Seq: R : A S supra supra , , ADS L But far more importantly, OWEN 51 I (1918) [hereinafter, J 53 56 OLDEN NVEILING OF THE AMES OQUILLETTE ACON AND THE J U , G B unknown HE ], T AURIER ORKS OF RANCIS He quickly recognized that Bacon was a He quickly recognized M 55 54 W in F ALFOUR B (1975) (discussing the sexual atmosphere of James I’s court); OLITICAL note 1, at 97–101; C APHNE DU Francis Bacon and the Science of Rulemaking Science the and Bacon Francis P D RTHUR supra note 12, at 328–31. Of course, here is a genuine example of supra note 1, at 90, 315–20; B , supra note 1, at 23–24; see also Daniel R. Coquillette, “The Purer Founda- HE , RIENDS . A , T supra , no. 29, 1990, at 1, 14 (quoting Simonds D’Ewes’ claim that Bacon was a , no. 29, 1990, at 1, 14 (quoting Simonds D’Ewes’ F (2d ed. 1613), and in Spedding vol. VI, supra note 2, at 582–87. , 326–27, 333–35, reads very close to Bacon’s essay Of Judicature, ON , . H HEIR supra note 3, at 70 (describing when Bacon was knighted, along with 300 T OWEN , ACON ORKS T B [R B ORKSHOP OQUILLETTE 2013] 147–52 eds., 2005). (Julie Robin Solomon & Catherne Gimelli Martin ., no. 4, 1990, at 1, 2 (“Francis Bacon, according to the gossipy John Aubrey, was a ., no. 4, 1990, at 1, 2 (“Francis Bacon, according OQUILLETTE W OQUILLETTE See generally Homosexuality and the Signs of Male Friendship in Elizabethan England See Alan Bray, Homosexuality and the Signs of Male Friendship Id. at 192–96. See See Id. See generally W EV ]; C . R RANCIS But today, scientists from astrophysicists to cancer researchers But today, scientists from astrophysicists Bacon was legally trained, apprenticed as a lawyer, and from 1608 Bacon was legally trained, apprenticed Deliberately passed over by Elizabeth, Bacon and his natural Bacon and his by Elizabeth, passed over Deliberately at ease in the were homosexuals, and were Bacon and Anthony INTER F 54. 55. C 53. 56. 51. 52. ORKS ISTORY ENT OQUILLETTE HOUGHT OLITICAL RANCIS AND M K others, to mark the King’s Coronation). tions”: Bacon and Legal Education, P F H W (1912); C T W now His statue lawyer. as a common to train Court, Inns of of the first square. the Gray’s Inn dominates \\jciprod01\productn\M\MRE\46-2\MRE207.txt OF James was a genuine intellectual, perhaps the most intelligent En- intellectual, perhaps the most James was a genuine all time. glish monarch of well-known pederast.”). Francis Bacon’s brother, Anthony, was formally accused of sodomy in well-known pederast.”). Francis Bacon’s brother, France. genius, first appointing him King’s Counsel in 1604, and following him King’s Counsel in 1604, genius, first appointing Lord Chan- to be discussed below, ultimately many other positions Baron Verulam in I also ennobled Bacon as cellor, in 1618. James cynical mar- Viscount St. Alban in 1621. Bacon’s 1618, and then as heiress Alice age forty-five, to fourteen-year-old riage in 1606, at wealth. Barnham ensured , 7 S. known “sodomite”); Charles R. Forker, Sexuality and Eroticism on the Renaissance Stage C are turning once again to the inductive scientific method Bacon are turning once again to the until his elevation to Lord Keeper in 1617, was Treasurer of Gray’s until his elevation to Lord Keeper guilds of London. His legal argu- Inn, one of the four great legal Coke in the famous, law-altering ments, particularly against Edward (1602), and his legal read- Chudleigh’s Case (1594) and Slade’s Case Statute of Uses” at Gray’s Inn in ings, such as the famous “On the the greatest of his writings was the 1600, were outstanding. Perhaps immortal essay Of Judicature of 1612. brother, Anthony, conspired secretly with her heir, James VI of her heir, James secretly with Anthony, conspired brother, solic- his brother quickly death, Bacon and On Elizabeth’s Scotland. preferment followed. of England and now James I ited James, court of James I. predominantly gay where some of the work may be Bacon’s. Thus, James I’s “Charge to the Judiciary,” C C Y 33129-mre_46-2 Sheet No. 113 Side A 03/21/2013 10:43:50 A 03/21/2013 113 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 113 Side B 03/21/2013 10:43:50 R R R R R M K A- C Y R . 46:2 OL ENTURY -C [V 18-MAR-13 12:07 EVENTEENTH Seq: 16 Seq: supra note 14, at 545. , ALKER unknown it is this Bacon who provided what it it is this Bacon who 147–51 (1985). 58 In light of all this, Bacon the lawyer In light of all this, Advancement of Learning is considered a 57 Overshadowed by one of the first acts of Overshadowed by one of the first note 1, at 77–90. CIENCE 15–18 F. Cantor & Peter L. Klein eds., 1969); I. (Norman 59 S note 1, at 77; W —the supra 60 , supra , ESCARTES D A Progressive, Empirical Legal Philosophy EVOLUTION IN OQUILLETTE , R C University of Michigan Journal of Law Reform OQUILLETTE ACON AND C OHEN :B A Proposition to His Majesty Touching the Compiling and His Majesty Touching the Compiling A Proposition to (1620)—Humane (1605) and The Novum Organum C See Id. at 277–97. On Bacon’s great scientific importance, see S Proficience and Advancement of Learning, Divine and Proficience and Advancement of An Offer to the King of a Digest to Be Made of the Laws of England of a Digest to Be Made of the Laws An Offer to the King A. Francis Bacon’s “New Tools”: The Two Books . . . Of the To understand Bacon’s jurisprudential genius, one must begin To understand Bacon’s jurisprudential Nevertheless, Bacon was a lawyer first and foremost, and as Lord was a lawyer first and foremost, Nevertheless, Bacon 60. 57. 59.). It was dedicated Spedding vol. III, supra note 2, at 253 (The Advancement of Learning 58.); Spedding vol. XIV, supra note Spedding vol. XIII, supra note 2, at 61 (A Proposition ERNARD has earned him the everlasting hatred of Whig historians and lib- the everlasting hatred of Whig has earned him with his revolutionary scientific thought. Long before his legal ca- with his revolutionary scientific published his first great treatise reer took off under James I, Bacon and Ad- on inductive method, The Two Books . . . Of the Proficience Humane (1605) (hereinafter The vancement of Learning, Divine and Advancement of Learning). took to transform the traditional equity jurisprudence into the took to transform the traditional and the Federal Rules of Civil force that touched Charles Clark Procedure. B TIONALISM 564 and empirical of linguistics invention Bacon’s praise and pioneered submarines, (1624) predicted Bacon’s New Atlantis social science. thus at- universities, and research refrigerators, terrorism, airplanes, spectac- followers. Bacon’s devoted thousands of fanatically tracting right Stuart divine of authoritarian advocacy ular political monarchy—later Thomas Hobbes— by Bacon’s secretary, amplified eral political philosophers. \\jciprod01\productn\M\MRE\46-2\MRE207.txt just gets lost. equity juris- the powerful head of the foremost Chancellor, he was essays on law re- Author of two of the greatest diction in England. form, A Proposition) Laws of England (1610) (hereinafter Amendment of the and A Digest), (1621) (hereinafter modern terrorism, the Gunpowder Plot of 1605 that nearly de- modern terrorism, the Gunpowder stroyed both Houses of Parliament—including Bacon as an M.P. and the King himself 4, at 357 (A Digest). to James I. See 33129-mre_46-2 Sheet No. 113 Side B 03/21/2013 10:43:50 B 03/21/2013 113 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 114 Side A 03/21/2013 10:43:50 R R R see 565 DWARD 24 (1864); 18-MAR-13 12:07 67–68; E AW L 10 (1970); See also id. NGLAND IND NCIENT E M , A (1826) (“[T]he common law 58 (Margaret Drabble ed., 5th Seq: 17 Seq: AINE AWS OF OKE ODERN M L C M More to the point, it re- point, to the More 61 ITERATURE UMNER DWARD S L E IR ENRY AW AND THE Law reform inevitably had to be Law reform inevitably had to unknown S 63 NGLISH , L . 205, 209–11, 381–82 (1979). 62 E EV RANK OMMENTARIES ON THE F EPORTS OF . L. R , C . 347, 348–57 (1975). R UFF supra note 10, at 314. HIL EROME note 1, at 228–34; Spedding vol. IV, supra note 2, at 53–54 (list- , OMPANION TO Francis Bacon and the Science of Rulemaking Science the and Bacon Francis C supra LACKSTONE , ART OF THE B P XFORD OQUILLETTE O supra note 10, at 305 (“The lawyers’ pretenses are not consciously deceptive. ILLIAM HE , ECOND W T 64 2013] S OQUILLETTE (1623), barriers to accurate empirical study are explored with to accurate empirical study are explored (1623), barriers See See HE , T This was of direct relevance to English law. Bacon’s thesis was law. Bacon’s thesis to English of direct relevance This was Bacon hated all fictions and all “top-down” legitimation of Bacon hated all fictions and Law, in the ideology of the medieval common law, evolved from Law, in the ideology of the medieval INTER 64. In Maine’s words, “‘[l]egal Fiction’. . . [signifies] any assumption which conceals, or 62. C 61. 63. OKE OQUILLETTE M K The Genesis, Definition, and Classifica- ing the four classes of idols); see also Walter H. O’Briant, tion of Bacon’s Idols, 13 S. J. P affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.” H rev. ed. 1995) (describing Bacon’s prose as generally being “rich, ornate, and supple”). rev. ed. 1995) (describing Bacon’s prose as at 338–39.For a modern “critical” attack on Blackstone, see Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 B C C W prose. English of modern masterpiece \\jciprod01\productn\M\MRE\46-2\MRE207.txt jected the traditional deductive, Aristotelian philosophy that domi- philosophy Aristotelian traditional deductive, jected the learning for centuries. university nated English of nature, observation based on direct learning was that genuine modern meteorology), (Bacon invented that be weather whether it started with or human nature itself. In short, astronomy, biology, In Ba- and worked upwards to general propositions. observable facts , called De Aug- of the Advancement of Learning con’s later expansion mentis individual psyche “flaws” in the lens caused by the great genius: the ethnic community cave”); the prejudices of the (the “idols of the and communica- tribe”); the barrier of linguistics (the “idols of the importantly, the of the marketplace”); and, most tion (the “idols (hence the of religion, politics, and ideology artificial realities but artificial sim- drama being a compelling “idols of the theater,” plification of the real world). incremental and, in most cases, shrouded by “legal fiction” (i.e., incremental and, in most cases, in practice although denied in essential legal changes made theory). The lawyers themselves, like the laymen, fail to recognize fully the essentially plastic and The lawyers themselves, like the laymen, fail to recognize fully the essentially plastic mutable character of law.”); J human learning, be it physics or legal rules. Why should a legal human learning, be it physics or its actual success in practice, case process be tested by anything but “time out of mind,” incorporating God’s will and wisdom into na- “time out of mind,” incorporating the author of Bracton, Sir Edward tional culture. Whether one was to question such a manifestation Coke, or Sir William Blackstone, empirical grounds was like chal- of the folk culture of a nation on lenging the existence of God. of England had been time out of mind before the Conquest and was not altered by the of England had been time out of mind before the Conquest and was not altered by Conqueror.”); C C Y 33129-mre_46-2 Sheet No. 114 Side A 03/21/2013 10:43:50 A 03/21/2013 114 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 114 Side B 03/21/2013 10:43:50 R R M K in C Y Of . 46:2 ). OL 68 [V 18-MAR-13 12:07 EARNING L 109–27 Robin Solo- (Julie 294–95 (1674) (Title I— Only today, with the 67 Seq: 18 Seq: HOUGHT DVANCEMENT OF at 145. EARNING T 147–51 Cohen notes further (1985). , A L ACON ODERN CIENCE 69 S M unknown ARLY E DVANCEMENT OF A EVOLUTION IN F THE , R note 1, at 277–92. He also “understood the futility of the pro- cannot be Just . . . .” Id. atSee also 294 (emphasis in original). , O EFIGURING OF 65 OHEN R 66 supra C ACON , B ERNARD University of Michigan Journal of Law Reform supra note 10, at 334–35 (citing B RANCIS , F OQUILLETTE ACON AND THE See I. B See Jerry Weinberger, Francis Bacon and the Unity of Knowledge, Reason and Revelation, See See id. at 159–60. B ne of the conspicuous failures in Bacon’s concept of science is in not recognizing the O Bacon saw clearly that this inductive method was also key to real Bacon saw clearly that this inductive For nearly three hundred years, Bacon’s inductive scientific hundred years, Bacon’s inductive For nearly three Even more important, in Bacon’s inductive method, all rules— in Bacon’s inductive method, Even more important, 67. 66. 65. 68. 69. C Law, as without it a Law OQUILLETTE RANCIS whether they purport to be rules of physics, linguistics, meteorol- to be rules of physics, linguistics, whether they purport F cess/substance distinction in law. It was fine to discuss a ‘rule’ in the abstract, but the impor- tant issue was how it worked in the concrete.” Id. at 277. ). Aphorism VIII reads, “Certainty is so Essential to the First Dignity of Laws, That They Be Certain). Aphorism VIII reads, “Certainty is so Essential a C mon & Catherine Gimelli Martin eds., 2005). collapse of Newtonian physics, the radical discoveries of modern collapse of Newtonian physics, astrophysics—unpredicted models—and by mathematical the fail- in cancer and other biomedical ure of “solutions”-driven research the value of starting with basic, fields, have scientists rediscovered biochemistry, and many “pure” research in physics, astronomy, hypotheses as an inher- other sciences, abandoning pre-determined ent source of bias—an real understanding. “idol” blocking 566 by “deduced” rules be legal should point, why to the More by case? or juris- law from a “fundamental” cases or controversies judges in prudence—afact”—thus “after the process inherently the denying their con- ability to govern citizens the that would permit certainty virtue of a view, the first rules? In Bacon’s prospective duct by clear not a meant a prospective, and that system was certainty, just legal retroactive, system. \\jciprod01\productn\M\MRE\46-2\MRE207.txt important role of mathematics in scientific theory.” Id. law reform. Rules must operate clearly and prospectively to achieve law reform. Rules must operate clearly should hardly guarantee their certain social ends. Their adoption tested, empirically, sci- survival. Rather, they should be continuously if they achieve the ends for entifically, and objectively, to determine scientific inductive process—andwhich they were designed. That only that process—validates rules. method was attacked by Newtonian formalists, mathematicians de- by Newtonian formalists, mathematicians method was attacked and those who saw the scientific voted to a purely abstract science, hypotheses. method as driven by preordained ogy, or law—must study. Valida- continually be tested by empirical is the only true research, in Bacon’s method, tion by empirical theory, whether All other deduced tests of source of legitimacy. systematic observa- mathematics, must give way to from theology or tion, free of bias. that “ 33129-mre_46-2 Sheet No. 114 Side B 03/21/2013 10:43:50 B 03/21/2013 114 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 115 Side A 03/21/2013 10:43:50 R R R 567 4, at 90, 218. DITION OF THE 18-MAR-13 12:07 E The latter ap- 70 The law of Scot- OMPACT 73 C HE Seq: 19 Seq: In the short run, these pro- 74 unknown 1062–63 (1976). This presented a theoretical opportunity of 1617–1620. judicial rules were These 72 IOGRAPHY supra note 1, at 70–77. See Spedding vol. X, supra note Francis Bacon and the Science of Rulemaking Science the and Bacon Francis B , supra note 1, at 74–75. , supra note 14 at 1108 (noting that Scottish law is “very different from (1617–1620) in Chancery Ordinances , 75 the Laws of England (1616–1617)the Laws and the ATIONAL 71 N ALKER OQUILLETTE W C 2013] OQUILLETTE Majesty Touching the Compiling and Amendment of and Amendment Touching the Compiling Majesty See See See id. at 99–117. See id. at 201–06. , written when Bacon was Attorney General and in a was Attorney General and A Proposition, written when Bacon Bacon asserted his inductive, progressive legal philosophy in two legal philosophy progressive his inductive, Bacon asserted After Bacon was appointed Attorney General in 1613, his access After Bacon was appointed Attorney For Bacon, the initial opportunity for reform was James’s acces- opportunity for reform was For Bacon, the initial INTER 75. 74. C 73. 70. 71. 72. It was James’s great desire to The two kingdoms had separate laws and governments. ICTIONARY OF B. to His A Proposition in Practice: Theory Legal Progressive Bacon’s M K ways: in specific proposals for law reform and in the actual adoption proposals for law reform and in the ways: in specific culminated of legal rules. The former approach and enforcement in directly to the King himself. position to advocate that existing [today] in England and Wales”). proach resulted in the actual adoption and enforcement of judicial in the actual adoption and enforcement proach resulted rules, the Ordinances Lord Keeper authority after he was appointed adopted by Bacon’s its key equity control of the Chancery and in 1617 and given jurisdiction. land was definitely more indebted to “civilian,” Roman law influ- land was definitely more indebted to argue, although in ences. This gave Bacon the opportunity reform project which would move general terms, for a general law toward a more instrumentalist, deductive common law “beliefs” law. comparative, and scientific view of D W \\jciprod01\productn\M\MRE\46-2\MRE207.txt see a complete unification, including the legal system. See 1 T posals turned out to be hopelessly optimistic. The actual unification posals turned out to be hopelessly until the Articles of Union in of the two Kingdoms did not occur remained “very different” until 1707, and the two legal systems have this very day. to James’s inner circle greatly increased, consolidated by his to James’s inner circle greatly sion to the Throne of England in 1603, unifying the Crowns of sion to the Throne of England England and Scotland. to reform the laws of both kingdoms to prepare for a future unifica- to reform the laws of both kingdoms himself with the King. Thus in tion and an obvious way to ingratiate accession, Bacon wrote A Brief 1603, just a year after James’s of the Kingdoms of England and Discourse Touching the Happy Union Certain Articles or Scotland, followed shortly by the more substantive of the Kingdoms. Considerations Touching the Union C Y 33129-mre_46-2 Sheet No. 115 Side A 03/21/2013 10:43:50 A 03/21/2013 115 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 115 Side B 03/21/2013 10:43:50 R R R M K C Y 79 . 46:2 OL No one 78 The goal [V 76 18-MAR-13 12:07 Not until 1865, 80 Seq: 20 Seq: (4th ed. 1882), 165–96. Sir Edward to reflect not what was actually have been done. EPORTERS unknown R HE , T ALLACE supra note 2, at 84–85. W supra note 1, at 311–19 (listing a chronology of Bacon’s career). , ILLIAM W 77 University of Michigan Journal of Law Reform OHN J OQUILLETTE also addressed matters “which Needeth No Par- The Memorial also addressed matters “which Needeth Id. at 85. See But Let not our just admiration of Sir Edward Coke’s profound legal learning carry us too far. His system of turning every judgment into a string of general propositions and resolutions has certainly a very imposing appearance, but it is a system of all others the least calculated to transmit a faithful report . . . the bias of a man’s own sentiments may involuntarily lead him to pervert the opinions of others in order to support his own. No wonder the common law judges and lawyers feared this man. No wonder the common law judges Although, as we shall see, Bacon was quick to use the judicial shall see, Bacon was quick to Although, as we 77. 78. C 79.80. Spedding vol. XII, supra note 2, at 85. 76. vol. XII, Spedding understood better than Bacon what was best left to the legislature. understood better than Bacon what that the King, of his inherent liament.” In particular, Bacon argued of their Laws,” by reviewing the authority, could “reform the body “[I]t is hardly possible to confer reported cases of judicial decisions. than if his Majesty should be upon this kingdom a greater benefit be purged and reviewed, whereby pleased that these books also may and clearer resolutions.” they may be reduced to fewer volumes of this Commission would be “to prepare bills for the next would be “to prepare bills of this Commission Parliament.” Sugden observed of Coke’s Reports, when the Incorporated Council of Law Reporting for England and when the Incorporated Council 568 1615, and 1614 1616. Between in Counsellor as Privy appointment the King addressed to law reform project, a major Bacon proposed and the of Penal Laws the Reviews Touching as “A Memorial ). It pro- The Memorial Law” (hereinafter, of Common Amendment and 12 Gentlemen of “12 Lawyers Commission, consisting posed a and the of penal laws for the review in the Country, of experience supply where it are obsolete and snaring, and the repeal of such as time.” of laws more mild and fit for the shall be needful \\jciprod01\productn\M\MRE\46-2\MRE207.txt Here was revision and “reform” of reported judicial decisions by Here was revision and “reform” The existing law reports were executive fiat. But Bacon had a point. varying quality. What is worse, unofficial, unreliable, and of greatly of Sir Edward Coke, were writ- some, like the immortal Law Reports research has shown that Coke ten by the judge himself. Modern notoriously “revised” his Reports done, but what he thought should authority as Lord Chancellor to adopt procedural rules directly, he Chancellor to adopt procedural authority as Lord having first been member of Parliament, also was an experienced seat of Bossing in at the age of only twenty for the elected in 1581 next thirty-seven active in the House for the Cornwall. He remained in 1618. disqualified by being ennobled years, until he was 33129-mre_46-2 Sheet No. 115 Side B 03/21/2013 10:43:50 B 03/21/2013 115 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 116 Side A 03/21/2013 10:43:50 R R R R 569 423–93 ed. (3d 18-MAR-13 12:07 Bacon then AW 82 L 81 NGLISH E Seq: 21 Seq: note 13, at 211. On the origins of ISTORY OF supra , , A H AKER unknown He could not resist a closing slash at He could not resist 83 note 14, at 730. OLDSWORTH H vol. V]. supra , ILLIAM Francis Bacon and the Science of Rulemaking Science the and Bacon Francis No wonder Bacon, as a legal scientist devoted to No wonder Bacon, as a legal scientist ALKER note 14, at 730. 85 OLDSWORTH supra note 80, at 446–47; B supra , , 84 2013] ALKER ALLACE Id. Id. It is true that this [reporting] hath been supplied somewhat of [reporting] hath been supplied It is true that this as chiefly by the wor- later times by the industry of voluntaries, and the Lord Coke. But great thy endeavours of the Lord Dier for they have either Judges are unfit persons to be reporters, as may appear well by too little leisure or too much authority, my Lord Dier is but a kind of those two books, whereof that of Cokes hold too much de note book, and those of my Lord proprio. Had Bacon’s proposal for official reporters “of great learning” Had Bacon’s proposal for official Bacon saw all this clearly and, to his credit, made a radical propo- made a radical and, to his credit, all this clearly Bacon saw The culmination of Bacon’s efforts for a major project of law re- The culmination of Bacon’s efforts INTER 82.83. Spedding vol. XII, supra note 2, at 86. 84. 85. W 81. W M K proposed six specific individuals and a stipend that could not “be individuals and a stipend proposed six specific annum.” less than 100£ per the first official Law Reports in 1865 by the Incorporated Council of Law Reporting for En- gland and Wales, see W 1945) [hereinafter H Id. at 172. See generally V W W and control,” “quality official any was there was established, Wales monopoly on reporting. there was no even then \\jciprod01\productn\M\MRE\46-2\MRE207.txt his rival, Chief Justice Coke: his rival, Chief Justice been adopted, the influence of the common law precedents could been adopted, the influence of As it happened, this reform would have been greatly strengthened. the accidental appearance of have to wait for centuries, despite as Sir James Burrow, who reported great “informal” Reporters, such the King’s Bench from 1756–1772(he made “an epoch in the his- official reporters were only ap- tory of reporting”). The first true pointed in 1865. sal that would have greatly increased the legitimacy of the decided legitimacy of the increased the have greatly sal that would Ba- making his argument, reporters. In a system of official case law: “[H]is that never existed: to a “tradition” referred con ingeniously use of Reporters, pleased to restore the ancient Majesty may be which did times were persons of great learning, which in former and faithfully at Westminster, and did carefully attend the Courts in the King’s and Judicial Resolutions given receive the Rules stipends of the Crown for the same.” Courts, and had transparency and certainty, was skeptical of the reported precedent transparency and certainty, was skeptical of his day. June, 1616 and March, 1617, form occurred in the period between C Y 33129-mre_46-2 Sheet No. 116 Side A 03/21/2013 10:43:50 A 03/21/2013 116 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 116 Side B 03/21/2013 10:43:50 R R M K C Y . 46:2 OL [V 18-MAR-13 12:07 Seq: 22 Seq: unknown 87 supra note 1, at 99–117; Spedding vol. XIII, supra note 2, at 61–71. , University of Michigan Journal of Law Reform 86 OQUILLETTE ject wearied and oppressed. hath a greater stroke and liberty. law being often obscure and doubtful. But certain it is, that our laws, as they now stand, are subject to But certain it is, that our laws, as of opinion, delays, and eva- great uncertainties, and variety sions: whereof ensueth, 1. of suits is great. That the multiplicity and length 2. armed, and the honest sub- That the contentious person is 3. That the judge is more absolute; who, in doubtful cases, 4. That the chancery courts are more filled, the remedy of Bacon’s starting proposition was simple. There was a lot that was There was a lot was simple. starting proposition Bacon’s concern- into either of those two extremes Sir, I shall not fall best to England; they commend themselves ing the laws of Chief Justice them; and your Majesty’s them that understand writings magnified them not [Coke] of your Bench hath in his wise, they are just, and mod- without cause. Certainly they are give to Caesar, they give to erate laws; they give to God, they It is true, they are as the subjects, that which appertaineth. of British, Roman, Saxon, mixt as our language, compounded our language is so much the Danish, Norman customs. And as complete: neither doth this richer, so the laws are the more that would have them to attribute less to them, than those for no tree is so good have stood out the same in all mutations; first set, as by transplanting. 87. Spedding vol. XIII, supra note 2, at 63. 86. C But the existing legal system urgently needed work: But the existing legal system urgently 570 of the Keeper Lord as appointment Bacon’s before immediately Chancery as head of the Ellesmere Lord Chancellor Seal, replacing Proposi- Bacon’s “A to the King himself, directly Court. Addressed law of fundamental a complete program a masterpiece, tion” was reform. \\jciprod01\productn\M\MRE\46-2\MRE207.txt good about the current state of English law, but it was far from current state of English law, but good about the status quo one hand, worshipping the common-law perfect. On the what experience reform, without respect for was absurd, but radical made a generous was equally foolish. Here Bacon had established, Chief Jus- arch-rival, common law conservative compliment to his tice Coke. 33129-mre_46-2 Sheet No. 116 Side B 03/21/2013 10:43:50 B 03/21/2013 116 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 117 Side A 03/21/2013 10:43:50 R 571 18-MAR-13 12:07 2010 Civil Litigation Bacon’s purpose 88 91 Seq: 23 Seq: 89 These were to be used for “rever- These were to be 90 unknown This precursor of today’s American Law In- This precursor of today’s American 92 L.J. 537, 537 (2010). Francis Bacon and the Science of Rulemaking Science the and Bacon Francis UKE 93 at 68. at 69. 2013] in that doubts are so frequent and many. are so frequent in that doubts to question, and often subject wills, are ents, deeds, inconveniences. and many the like hollow; Id. Id. Id. Id. Id. at 64. This list by Bacon sounds very much like the reasons for the 2010 Civil The second part was to be the equivalent of the great Digest of The second part was to be the The common law initiative was to be divided in three parts. First, initiative was to be divided in three The common law 5.ignorance of law shroudeth his ignorant lawyer That the 6. estates by pat- of their lands and assurances That men’s of the analysis of the actual application The answer? A wholesale INTER 89.90. Spedding vol. XIII, supra note 2, at 67. 91. 92. 93. 88. M K was to distinguish between the history of the law and its active, pre- was to distinguish between the history sent application—exactlyHistorical Appendices of Moore’s what the sought to achieve. Federal Practice and other major treatises have constant reference of common Why? Because in Bacon’s view, the to “time immemorial” was a law judges to a sanctified law dating what was, in fact, modern in- fiction, masking in antiquarian terms from present “binding prece- novation. Separating legal history dent” was a first step to transparency. precedents summa- Roman Law, containing all valid, authoritative cases, repetitious cases, rized and organized by topic. Erroneous law reporting would be “purged and the “idle queries” of common prolixity . . . drawn into a more away,” and those cases of “too great compendious report.” W \\jciprod01\productn\M\MRE\46-2\MRE207.txt Litigation Review Conference at Duke, which was sponsored by the Civil Rules Advisory Com- mittee of the Judicial Conference of the United States. See John G. Koeltl, Review Conference, 60 D end precedents” but not as “binding authorities.” end precedents” De antiquitatibus juris, and a De antiquitatibus would be written a legal history book, or elsewhere . . . legal records “in your Tower new registry of the and weighed.” searched perused English law, resulting in two great initiatives, one directed at the in two great initiatives, one English law, resulting in both cases the other at the statutory law, tested common law and “Books must fol- In Bacon’s immortal words, by actual application. not sciences books.” low sciences, and stitute Restatements would be a core of legal authority, consistent again a plea for professional, ob- and available to all. Bacon added for your Majesty to appoint some jective Reporters: “[I]t resteth but some honourable stipend, to be grave and sound lawyers, with reporters.” C Y 33129-mre_46-2 Sheet No. 117 Side A 03/21/2013 10:43:50 A 03/21/2013 117 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 117 Side B 03/21/2013 10:43:50 R M K C Y . 46:2 OL [V 18-MAR-13 12:07 Seq: 24 Seq: (2) an official textbook for textbook (2) an official 94 This book of rules would directly of rules would This book unknown 95 (8th ed. 2004). ICTIONARY D AW L S ’ University of Michigan Journal of Law Reform 96 LACK the case by alteration of time is vanished; as Lombard Jews, the case by alteration of time is vanished; in Gauls half-pence, etc. Those may nevertheless remain no reprinting of them. the libraries for antiquities, but expired and clearly re- The like of statutes long since pealed; for if the repeal be doubtful, it must be so pro- pounded to the Parliament. not of use, but yet snaring and in force. In some of those it Id. I hold it of all other things the De regulis juris, I hold it of all other For the treatise good insti- to the health, as I may term it, and most important of a ship, to it is indeed like the ballast tutions of any laws: in this kind, and stable; but I have seen little keep all upright The naked or other laws, that satisfieth me. either in our law useful by not the effect. It must be made rule or maxim doth warranted by ampliations, and limitations, good differences, raising up of quotations and good authorities; and this not by deducement in a just tractate. references, but by discourse and the first more cursorily, since In this I have travelled myself, at on with it, if God and your with more diligence, and will go do assure your Majesty, I am Majesty will give me leave. And I Coke’s Reports and my in good hope, that when Sir Edward to posterity, there will be Rules and Decisions shall come who was the greater (whatsoever is now thought,) question lawyer? Alas, Bacon’s book of rules was never written. Alas, Bacon’s book of rules was great law reform project would The concluding part of Bacon’s 1. of those statutes whereas The first, to discharge the books 2. The next is, to repeal all statutes which are sleeping and Finally, Bacon would have three “anxiliary books”: (1) an author- (1) books”: “anxiliary have three would Bacon Finally, 96. 95. Spedding vol. XIII, supra note 2, at 70. 94. B 572 \\jciprod01\productn\M\MRE\46-2\MRE207.txt , modeled on Justinian’s great Roman law on Justinian’s , modeled the Institutions students, (3) a book importantly, begin”; and most students text, “wherewith juris. rules, De regulis of judicial challenge the judicial decisions of Coke’s Reports as a primary source challenge the judicial was to write it himself: of law, and Bacon be a great codification of all statutory law. It would have four goals: be a great codification of all statutory , a precursor of , a precursor significationibus dictionary, De verborum itative law Dictionary ; Black’s Law Bryan Garner’s 33129-mre_46-2 Sheet No. 117 Side B 03/21/2013 10:43:50 B 03/21/2013 117 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 118 Side A 03/21/2013 10:43:50 R R AW ALES 573 L W ISTORY OF NGLISH 97 E , A H 18-MAR-13 12:07 NGLAND AND E RIEDMAN ISTORY OF H M. F Seq: 25 Seq: OCIAL ISTORY OF , supra note 1, at 172. H , A S AWRENCE OWEN B EGAL L ARDING H unknown ODERN LAN , A M 100 Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , supra note 10, at 506–12; L ANCHESTER supra note 1, at 191; see also , 99 Thus, Bacon continued to respect the proper power Thus, Bacon continued 98 403–11 ed. 1985); A (2d OQUILLETTE C AW 2013] OQUILLETTE L will perhaps be requisite to substitute some more reasona- some more to substitute be requisite perhaps will a time; in others agreeable to the of them, ble law instead may suffice. simple repeal stand. the ordinance be mitigated, though statutes to one clear and uniform law. one upon another, Id. at 71. Id. See 3. in many of the penalty that the greviousness The third, 4.heaped reducing of concurrent statutes, The last is, the But Bacon was not just a brilliant advocate and theorist of law But Bacon was not just a brilliant Son to the grave, wise Keeper of the Seal, Fame, and foundation Of the English weal. What then his father was, P]that since is he . . . . But, as Bacon pointed out, these changes would have to be made out, these changes would But, as Bacon pointed INTER 100. C 97. 98. 99. MERICAN M K moments of great pride to Bacon as he finally, against all odds, moments of great pride to Bacon A As Lord Chancellor, Bacon inherited both the civilian heritage of As Lord Chancellor, Bacon inherited equitable procedure and great judicial discretionary power. 335–39 A.H. M (1966); 1750–1930, at 13–20, 23–26, 38–49 (1980). W \\jciprod01\productn\M\MRE\46-2\MRE207.txt reform. When he had both the power and the jurisdiction, he reform. When he had both the The power and jurisdiction boldly implemented reform in practice. as Lord Keeper of the Seal on came to him with his appointment Chancellor on January 4, 1618—March 3, 1617 and then as Lord In the words of Bacon’s friend, stepped into the shoes of his father. the immortal poet Ben Johnson, by Parliament, and all that the King could effectively do would be to all that the King could effectively by Parliament, and but not with a pre- named by both houses; call for “commissioners and propound to conclude, but only to prepare cedent power to Parliament.” of the legislature. Alas, this great proposal would also have to wait Alas, this great proposal would of the legislature. which occurred in even partial implementation, three centuries for movements on both sides the great nineteenth-century codification of the Atlantic. C Y 33129-mre_46-2 Sheet No. 118 Side A 03/21/2013 10:43:50 A 03/21/2013 118 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 118 Side B 03/21/2013 10:43:50 R R R R M K C Y RAN- F . 271, . 46:2 See Id. Since ULL OL . B [V IBR 18-MAR-13 12:07 (1642), reprinted . L 105 ARV ACON supra note 2, at 757–74 B , VII ] (2d ed. 1741). Again, my ] RANCIS Seq: 26 Seq: F RACTS IR T S appeared in print as early as 1642, AW They have a very clear inter- They have a very 103 ONOURABLE unknown H IGHT R 279–98 L [hereinafter 102 supra note 1, at 201–06; Spedding vol. ADE BY THE RACTS , T M supra note 102, at 280. AW , 104 , L RACTS University of Michigan Journal of Law Reform for this source. OQUILLETTE RDINANCES T ACON C But the early efforts, most importantly described by Wil- importantly early efforts, most But the B , O AW See , 7See Paul L. Ward, William Lambarde’s Collection on Chancery H See Spedding vol. VII, supra note 2, at 757. Spedding observed that “[i]n Harl. MSS. 101 ACON RANCIS The Ordinances consist of 101 rules. as a fundamental limi- Rule 6 sets out the power of the legislature pretence of equity, against No decrees shall be made, upon of parliament: nevertheless if the express provision of an act parliament hath for a time the construction of such act of and reputation, and after by gone one way in general opinion then relief may be a later judgment hath been controlled, cases arising before the said given upon matter of equity for in no default. judgment; because the subject was Equitable procedure had given rise to rules of Chancery proce- of Chancery to rules rise had given procedure Equitable were written between 1617 and 1620 as Bacon es- The Ordinances were written between B F 102. 105. vol. VII, supra note 2, at 760. The other great limitation on equity was that Spedding 101. 104. L 103. Ordinances (containing the complete Ordinances). The when they were printed in London for Mathew Walbanke and Lawrence Chapman. when they were printed in London for Mathew 280–86, 291–92 and curator ex- (1953). My special thanks to Karen Beck, colleague traordinaire, CIS no equitable remedy could be available if there was a remedy at common law. nal structure, which seems instantly familiar to modern procedural- seems instantly familiar to modern nal structure, which could appeal a Rules 1 to 5 set out how one ists. In particular, The fundamental (i.e., “bills of review”). decree of the Chancery . . . except the “no bill of review shall be admitted principle is that (Rule 3) unless the “act de- decree be first obeyed and performed” the parties’ right at common creed to be done . . . extinguisheth law” (Rule 4). in 574 \\jciprod01\productn\M\MRE\46-2\MRE207.txt tation on the equity jurisdiction: dure as early as the sixteenth century, brilliantly described by Paul described century, brilliantly early as the sixteenth dure as Ward. liam Lambarde’s Chancery notebooks, were primitive and were primitive notebooks, Chancery liam Lambarde’s in effort, the Ordinances pioneering compared to Bacon’s disjointed . Chancery to us from a of the Chancery. They are known tablished control as early as 1642, manuscripts and were printed number of surviving in 1879, is edition of James Spedding, published but the revised regarded as definitive. 1576—in volume are also some Orders of Lord Ellesmere—there which are fifteen addi- tional rules, which from the place in which they occur would seem to be Bacon’s.” are Spedding omitted these and it remains uncertain that they were authored by Bacon, they not discussed here. special thanks to Karen Beck. 33129-mre_46-2 Sheet No. 118 Side B 03/21/2013 10:43:50 B 03/21/2013 118 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 119 Side A 03/21/2013 10:43:50 R 575 18-MAR-13 12:07 Rules 35 to 44 108 Seq: 27 Seq: unknown supra note 80, at 252–53. 106 107 vol. V, Francis Bacon and the Science of Rulemaking Science the and Bacon Francis OLDSWORTH H 2013] Id. at 760–62. Id. at 764. See 37. any private petition, but No order shall be explained upon register is to set down the in court as they are made, and the by the court truly, at his peril, orders as they were pronounced without troubling the lord chancellor, by any private attending of him, to explain his meaning; and if any explanation be de- sired, it is to be done by public motion, where the other party may be heard. then turn to their most fascinating subject: the The Ordinances then turn to their most fascinating This is followed by remedies available in Chancery (Rules 7–10), (Rules in Chancery available by remedies is followed This forms of relief familiar to all The Ordinances then focus on special judgment shall contain no Decrees upon suits brought after the judgment, but shall only words to make void or weaken of the party, and rule him to correct the corrupt conscience acts, according to the eq- make restitution, or perform other uity of the cause. INTER 106. 107. 108. M K W \\jciprod01\productn\M\MRE\46-2\MRE207.txt deal with various possible Registrar abuses, and Rules 37 and 38 deal with various possible Registrar private dealings by Registrars: address delays, inaccuracies, and direct regulation of the court officials—the “Registrars” and “Mas- before them. Here we can see a ters” and the attorneys appearing subject to the usual risks of microcosm of a busy legal community, For example, the Chancery corruption, evasion, and inaccuracy. were charged with the draw- Registrars (spelt “registers” by Bacon) capable of playing favorites both in ing up of decrees but were quite by delaying entry. the wording of the decrees and a description of those bound and not bound by the remedies bound by the bound and not of those a description (Rules 11–12), may be dismissed ways in which causes the different (Rules 13–17),after hearing vexa- against “double a prohibition in chan- common law and cause at the suing “for the same tion” by causes by for removal of procedure 18), and the cery” (Rule certiorari (Rule 19). injunction (Rules 20–28),students of equity: (Rules sequestration 29–30), that “are by of the decrees of other courts enforcement 31–32), means interrupted” (Rules contumacy or other and suits 33–34).after judgment (Rules not to alter Careful regard is given Thus, as Rule judgments of the other royal courts. or undercut the 34 stipulates, C Y 33129-mre_46-2 Sheet No. 119 Side A 03/21/2013 10:43:50 A 03/21/2013 119 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 119 Side B 03/21/2013 10:43:50 R M K C Y . 46:2 OL [V 18-MAR-13 12:07 Rules 40 and 41 110 113 Seq: 28 Seq: unknown note 2, at 764–65. 109 111 University of Michigan Journal of Law Reform Id. at 765. Id. at 765. See id. at 765–66. Id. at 767. 112 40. the coun- upon sending their draught unto The registers, the interlineations or alter- sel of the parties, are not to respect said counsel never so great, ations of the said counsel, be the of that which was farther than to put them in remembrance to conceive the order, upon truly delivered in court, and so farther respect. their oath and duty, without any 41. in the penning and drawing The registers are to be careful of difficulty and weight; up of decrees, and specially in matters the same to the lord chancel- and therefore when they present which are such de- lor, they ought to give him understanding read and reviewed before his crees of weight, that they may be lordship sign them. Of particular interest are the Rules governing sanctions. These Of particular interest are the Rules 55. If any bill, answer, replication, or rejoinder, shall be found of an immoderate length, both the party and the counsel under whose hand it passeth shall be fined. 38. by the register shall be delivered order of any draught No that him; to the end a copy by party, without keeping to either be in- the court may nevertheless be not entered, if the order put to new trouble done, and not what was formerly formed be of orders end also that knowledge and to the and hearing; but may presently from either party, back too long not kept appear at the office. in drafting Registrars were not to be influenced In particular, the 110. 111. 112. 113. 109. Spedding vol. VII, supra Similar rules govern references to Masters, for example in Rules 45 Similar rules govern references to to 52. 576 \\jciprod01\productn\M\MRE\46-2\MRE207.txt state: routinely included the lawyers, as well as their clients. “Prolixity” routinely included the lawyers, Rule 55 states: was a particular concern. Thus, the decrees by counsel, even if “said counsel [be] never so great,” even if “said counsel [be] the decrees by counsel, the signifi- the Lord Chancellor understood and should be certain when asked to sign them. cance of the orders 33129-mre_46-2 Sheet No. 119 Side B 03/21/2013 10:43:50 B 03/21/2013 119 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 120 Side A 03/21/2013 10:43:50 R R 577 18-MAR-13 12:07 This included 116 Seq: 29 Seq: 115 unknown Lord Keeper Egerton ordered Lord Keeper 114 Francis Bacon and the Science of Rulemaking Science the and Bacon Francis supra note 101, at 284–85 (setting out the original manuscript transcripts of 2013] Id. at 285 (quoting Monro’s transcript). 117 56. answer, or other plead- If there be contained in any bill, libelous or slanderous ing, or any interrogatory, any matter suit, or against such as are against any that is not party to the impertinent, or in derogation parties to the suit upon matters of His Majesty’s courts; such of the settled authority of any shall be taken off bills, answers, pleadings, or interrogatories, parties severally punished by the file and suppressed, and the be thought fit, for the abuse commitment or ignominy, as shall at law, who have set their of the court: and the counselors hands, shall likewise receive reproof or punishment, if cause be. Another offense was filing a pleading that was “libelous or slan- Another offense was filing a pleading Prior Lord Chancellors did not just fine those who failed to be failed to who fine those not just did Lord Chancellors Prior that the Warden of the Fleet shall take the said Richard Myl- of the Fleet shall take the said that the Warden on Satur- bring him into Westminster Hall, ward . . . and shall and then and of the clock in the forenoon, day next, about ten hole in the myddest of the same engrossed there shall cut a purpose), is delivered unto him for that replication (which hole, and so Richard’s head through the same and put the said with the hang about his shoulders, let the same replication shall and then, the same so hanging, written side outward; faced, round bare headed and bare lead the same Richard, Courts are sitting, and shall about Westminster Hall, whilst the the three Courts within the shew him at the bar of every of again to the Fleet, and keep Hall, and shall then take him back paid 10 l. to Her Majesty for a him prisoner, until he shall have fine, and 20 nobles to the defendant. INTER 114. Ward, 115. 116. vol. VII, supra note 2, at 767. Spedding 117. counsel for “derogation of the settled authority of any of His Majesty’s Sanctioning M K W \\jciprod01\productn\M\MRE\46-2\MRE207.txt Cecil Monro, a nineteenth-century Chancery Registrar and historian). courts” is reflected today in ABA Model Rule 8.2(a): “A lawyer shall not make a statement sanctions for the lawyers. Rule 56 directs: sanctions for the lawyers. Rule 56 derous,” particularly with regard to non-parties or “in derogation of derous,” particularly with regard Majesty’s courts.” the settled authority of any of His concise. For example, take the fate of the unfortunate Richard Myl- unfortunate Richard the fate of the For example, take concise. that “ filed a replication ward, who Sheets of ‘doth contain 6 score and of sub- is pertinent the matter which pages] and yet paper [120 in 16 been contrived might well have therein stance contained paper.’Sheets of ” C Y 33129-mre_46-2 Sheet No. 120 Side A 03/21/2013 10:43:50 A 03/21/2013 120 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 120 Side B 03/21/2013 10:43:50 R M K C Y . 46:2 OL 119 [V R. 8.2(a). De- 18-MAR-13 12:07 In re Wilkins, 782 ONDUCT C L ’ ROF Seq: 30 Seq: P ULES OF R ODEL unknown 118 University of Michigan Journal of Law Reform Id. at 768. Finally, there are Rules of general court administration, which Finally, there are Rules of general 67. fifteen lines in every All copies in chancery shall contain unwastefully, unto which sheet thereof, written orderly and the principal clerk of the of- shall be subscribed the name of for whom he will answer, fice where it is written, or his deputy, at all shall be taken. for which only subscription no fee also controlled standard pleading matters, such as such matters, pleading standard controlled also The Ordinances 96. upon pe- of bankrupt shall be granted but No commission together with to the lord chancellor, tition first exhibited considera- of which his lordship will take names presented, with the rest; mingle some learned in the law tion, and always not too often taken that the same parties be yet so as care be taken that and likewise care is to be used in commissions; l. at least, to surety be entered into, in 200 bond with good prove him a bankrupt. 97. any cause of weight shall No commission of delegates in to the lord chancel- be awarded, but upon petition preferred himself, to the end they lor, who will name the commissioners quality, having regard to the may be persons of convenient of the court from whence weight of the cause, and the dignity the appeal is. 119. 118. vol. VII, supra note 2, at 773. Spedding that the lawyer knows to be false or with reckless disregard to its truth or falsity concerning that the lawyer knows to be false or with reckless the qualifications or integrity of a judge.” M 578 \\jciprod01\productn\M\MRE\46-2\MRE207.txt went from the very specific to the very general. These include the went from the very specific to the the exact number of lines in very specific Rule 67, which stipulates Chancery copies: demurrers (Rules 57–60),demurrers 61–66),answers (Rules and depositions (Rules 68–74),interrogatories 75–76), affidavits (Rules petitions (Rules 80–83), (Rules 84–92), special writs special commissions and (Rules 93–97). as Reg- for abuse the same potential The last offered 97 direct: Rules 96 and Masters. Thus, istrars and spite the First Amendment, such sanctions have been enforced. See, e.g., N.E.2d 985 (Ind. 2003) (finding attorney in violation of Rule 8.2 despite any First Amend- ment protection of his remarks); In re Hinds, 90 N.J. 604 (1982) (holding that attorneys associated with an ongoing criminal trial making out-of-court statements about trial judges may be sanctioned). But see In re Erdman, 301 N.E.2d 426 (N.Y. 1973) (reversing disciplinary in a sanctions against a criminal defense attorney who made offensive statements out of court magazine). 33129-mre_46-2 Sheet No. 120 Side B 03/21/2013 10:43:50 B 03/21/2013 120 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 121 Side A 03/21/2013 10:43:50 R 121 579 120 INES OF 18-MAR-13 12:07 L In 1620, the 122 HEIR T Seq: 31 Seq: ISTORICAL ”: H ODAY T ACON AND B unknown ERCULES (1620). H RANCIS F RGANUM IGNIFICANCE S O do not seem remarkable to us. They operated do not seem remarkable ILLARS OF OVUM Francis Bacon and the Science of Rulemaking Science the and Bacon Francis P , N supra note 1, at 258. TTACK ON , Bacon, as Lord Chancellor, “walked the walk.” It was Bacon, as Lord Chancellor, “walked A ACON B Ordinances AST THE 2013] OQUILLETTE RANCIS Id. at 774. Ordinances, III. “P Novum Organum (1620) bears a The title page of Bacon’s great But there is also the very broad Rule 101, which contains general contains 101, which Rule very broad also the there is But 101. of discover some experience may because time and And to be other to be fit and some to be inconvenient, these rules from in any such case intendeth his lordship added; therefore additions. publish any such revocations or time to time to matters as rules that governed such diverse Also included are Bacon’s INTER 120. 121. F 122. C M K like modern rules of procedure and addressed many of the same of procedure and addressed like modern rules problems—problems to law prac- that have obviously been endemic the ages. But that is exactly tice and court operations throughout rules of procedure, set in the the point. These were truly modern that was to have such a context of the same equitable jurisdiction rulemakers, three centuries later powerful influence on American of inductive, empirical ob- and an ocean away. Bacon’s philosophy his theories of law reform, took servation of rules in practice, and In modern parlance, Bacon did concrete form in his rulemaking. law reform and rulemaking. In not just “talk the talk” of modern the exactly the sort of thing that would impress a Charles Clark, a Ben exactly the sort of thing that would Edward Cooper. Kaplan, a Charles Wright, or an Pillars of Hercules were powerfully symbolic, but not just of explo- ration. Bacon’s scientific thought and his empirical theories of law It was a time of brave exploration of a New World. The opening words of Bacon’s utopia, the New Atlantis, were, “We sailed from Peru . . . for China and Japan, by the South Sea.” W \\jciprod01\productn\M\MRE\46-2\MRE207.txt striking illustration: a small brave ship passing under the Pillars of striking illustration: a small brave of the end of the known world. Hercules, the traditional symbol authority to make new rules whenever needed: to make new rules authority ” (Rule 98) and to defend in forma pauperis who “shall be admitted are carefully “for losses by fire or water,” which licenses to collect a feature both 99. Insurance fraud was obviously regulated by Rule and modern litigation. of seventeenth-century C Y 33129-mre_46-2 Sheet No. 121 Side A 03/21/2013 10:43:50 A 03/21/2013 121 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 121 Side B 03/21/2013 10:43:50 R R M K C Y . 46:2 OL [V 18-MAR-13 12:07 . 63 (1608). EP vol. V, supra note 80, at R S ’ Seq: 32 Seq: OKE OLDSWORTH in 12 C unknown supra note 10, at 312–25; H , and Morally Inferior to Case Law Thus, the judge would consider a particular case or Thus, the judge would consider University of Michigan Journal of Law Reform 124 OQUILLETTE C supra note 3. , See See id. at 275–97. see generally For the master account of Baconian controversies, But he earned enemies in all four categories, both while he both while in all four categories, earned enemies But he Christopher Columbus Langdell—Rulemaking as Intellectually 123 Any first-year law student who has been told by a professor that Any first-year law student who has [T]hen the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that . . . His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law . . . with which the King was greatly offended. There is no space here to describe adequately the controversies to describe adequately no space here There is 124. 123. ATHEWS A. Coke, William Blackstone, The Deductive, Formalist Attack: Edward his or her answer to a legal question is “wrong” has been intro- his or her answer to a legal question by great common lawyers, duced to legal formalism. As perfected Justice Sir Edward Coke, the con- such as Bacon’s archenemy, Chief of “artificial intelligence” was cept of legal learning as a science (i.e., there was an existing body of initially deductive in its approach to most legal questions could be legal learning from which answer deduced). 423–93. Coke had the nerve to say directly to James I, As Id. at 339 (italics added); accord Prohibitions del Roy, 580 the and tradition common-law the beyond both went which reform, the Pillars, warning of defied the ancient level of his peers, comfort ”“non ultra (“no further!”) life—personal,of Bacon’s politi- and professional, philosophical, cal. \\jciprod01\productn\M\MRE\46-2\MRE207.txt M controversy and then apply the appropriate pre-existing legal rule controversy and then apply the to achieve the “correct” answer—an answer that, in theory at least, or economic forces of the day. was independent from the political lived and long after his death. I would like to focus solely on Ba- his death. I would like to focus lived and long after law reform and achievements, particularly in con’s professional These on just three sources of controversy. rulemaking, and and they are di- continued to the present day, controversies have “non ultra” modern rulemaking. But the warning rectly relevant to have hardly disap- of the Pillars of Hercules and the symbolism theories go too still believe Bacon’s methods and peared, and many professional historic lines of attack on Bacon’s far. Here are three and his rulemaking. theories of law reform 33129-mre_46-2 Sheet No. 121 Side B 03/21/2013 10:43:50 B 03/21/2013 121 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 122 Side A 03/21/2013 10:43:50 R R R R R - 125 581 IGHT- RIGIN NGLO and E O , A 127 HE : T . 205, 209–11 18-MAR-13 12:07 OCIETY IN EV S UNTERS OQUILLETTE C . L. R 20–27 see also (1967); H UFF RIME AND did not accurately re- : C ARVARD Seq: 33 Seq: HIGS AND , 28 B REE H , W T (1765–1770)become have AW AT ATAL L F S ’ HE HOMPSON , T unknown LBION . 92(b) (1602). See generally ., A EP R . 1283, 1298–99 (2010). S ’ EV UTHERLAND note 10, at 438; Mark E. Steiner, Abraham Lincoln and the OKE AY ET AL note 10, at 438. For Blackstone criticism, see, for example, H E. S . L. R 128 supra note 10, at 250–54, 261–63, 310–61 (discussing Coke’s legal supra note 64, at 23–27. Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , 18–24 (1975); E. P. T in 4 C ARQ supra RTHUR , OUGLAS D supra ERITAGE 269 (1975). On Blackstone’s fundamental importance in early American , NGLAND H CT E supra note 10, at 437–39. AINE A OQUILLETTE , C M EGAL 2013] OQUILLETTE 126 L LACK See See See Slade’s Case, ENTURY See generally B -C One feature of Coke and Blackstone’s formalism was the inher- One feature of Coke and Blackstone’s Of course, law cannot evolve to meet changing social needs if this needs if social changing to meet evolve cannot law Of course, legal closely associated with Anglo-American Formalism has been INTER 127. 128. C 125. 126. OQUILLETTE MERICAN M K Duncan Kennedy, The Structure of Blackstone’s Commentaries Rules of Law Books, 93 M C (1979). A EENTH OF THE career and approach to deciding cases). W and change, legislation modes of legal other two Unlike Maine’s while denying—at crucial outcomes fiction changed equity, legal least formally—that master of this the law itself had changed. The as Slade’s Case himself in major cases such approach was Coke (1602). \\jciprod01\productn\M\MRE\46-2\MRE207.txt were the cornerstones of the first law courses at the new Harvard were the cornerstones of the first Law School in 1817. legal education, see A ent superiority of case law. The judge deduces and applies the law ent superiority of case law. The great pre-existing body of the law, in a case or controversy from the and the manifestation of this and the case becomes both a source of legislation, which made no law. The purely instrumental aspect the vote of the legislature, and pretense to legitimacy other than principles of equity, which were the traditionally non-precedential model is strictly applied, and great legal historians, such as Sir historians, such and great legal strictly applied, model is as a way fictions” by judges use of “legal early saw the Henry Maine, reform. necessary but also to achieve familiar forms to preserve education, from professional university legal education, particularly Vinerian lectures Sir William Blackstone’s famous the earliest times. actual study of were the first to introduce the at Oxford in 1758 framework, law of the courts within a university English common resulting Commentaries and Blackstone’s scholars such as E. P. Thompson, a formalist bible. Today, legal and Duncan Kennedy have Douglas Hay of the Warwick School, Commentaries demonstrated that Blackstone’s present the actual practice of law or the operation of eighteenth- present the actual practice of law of Blackstone, defining a century courts. But the four volumes George Washington’s shelves, in “body” of common law, were on rode the circuit in Illinois, Abraham Lincoln’s library as he C Y 33129-mre_46-2 Sheet No. 122 Side A 03/21/2013 10:43:50 A 03/21/2013 122 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 122 Side B 03/21/2013 10:43:50 M K C Y . J. M : C. C. . 46:2 OL [V 18-MAR-13 12:07 DUCATION E See Bruce A. Kimball & Pedro ROFESSIONAL Seq: 34 Seq: P R. 4.2 (2011). ODERN M ONDUCT C unknown L ’ ROF P NCEPTION OF I HE ULES OF , T . R ASS IMBALL M The extent of Langdell’s deductive formalism has Langdell’s deductive formalism The extent of A. K 129 University of Michigan Journal of Law Reform RUCE . 257, 261, 267–69also the masterful study of Langdell and case (2005). See , 1826–1906, at 130–65 (2009). IST The Comment to the Rule, approved by the Court and The Comment to the Rule, approved (1870), the very first casebook. Although by 1870, codification Although very first casebook. (1870), the The “First Modern Civil Procedure Course” as Taught by C. C. Langdell, 1870–78, 47 A H 130 The ultimate manifestation of American academic legal formal- academic legal of American manifestation The ultimate This had a clear impact on the attitude of academia and students impact on the attitude of academia This had a clear Massachusetts case involving a An excellent example is a leading 129. Langdell was one of the first American law professors to actually assign Ironically, 130. of course, is a court-promulgated rule of ethics, not of procedure, but the This, EGAL ANGDELL L L 582 did situation, in a particular a just end by achieving solely validated to formalist curriculums. not appeal his famous Langdell and Columbus of course, Christopher ism was, Con- famous Cases on by Langdell’s first introduced “case method,” tracts been gather- Europe and America had already movements in both was an obvious and commercial and contract law ing momentum, most law school no legislation intruded into focus for such codes, classrooms. \\jciprod01\productn\M\MRE\46-2\MRE207.txt procedural rules as a text, using the New York Code of Procedure in 1875–76. But his intro- ductory text, James B. Ames’s A Selection of Cases on Pleading at Common Law (1875), was en- the tirely case-oriented and contained no reported rules. Langdell also emphasized importance of procedural forms, evolved through case law. point is the same. See method in B been exaggerated, particularly by twentieth-century “realist” critics, particularly by twentieth-century been exaggerated, case law has domi- on the inherent superiority of but his emphasis lawyers, right of generations of American nated the legal education to this very day. principles from a If the deduction of legal to Baconian rulemaking. or controversies is the correct pre-existing common law to cases of common-law rules—usu-role of the judge, and if the evolution ally by legal fiction—is and wise mode of law the most legitimate of rules by judges in the ab- reforms, the prospective enunciation to the extent the judges are not stract is flawed in two ways. First, common law, they are usurp- deciding cases based on a pre-existing to the extent that judicial ing the role of the legislature. Second, existing procedural case laws, it rulemaking changes and “reforms” process, that will inevitably have to is inherently a flawed, less “wise” be revisited by courts in actual cases. Rule of Professional Conduct judicially promulgated rule, Mass. 4.2. promulgated by the Supreme Judicial Court of Massachusetts at the promulgated by the Supreme Judicial explicit that an adversary lawyer same time as the Rule, made it on the other side who is in a must not contact a corporate official without the approval of the position to legally bind the corporation case involving the Corporation of corporation’s lawyer. In a famous Reyes, 33129-mre_46-2 Sheet No. 122 Side B 03/21/2013 10:43:50 B 03/21/2013 122 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 123 Side A 03/21/2013 10:43:50 R EAL 583 R THICS FOR 18-MAR-13 12:07 18 (1901). E EAL , R ENAISSANCE R Seq: 35 Seq: OQUILLETTE and the inherent superior- and the R. C AW IN THE 133 L Such cases obviously undercut Such cases ANIEL 132 unknown Langdell’s answer was a case-based NGLISH 134 , E the Supreme Judicial Court held that Judicial Court the Supreme supra note 134, at 140. , 131 AITLAND M Rulemaking as a Futile Exercise Rulemaking as a Francis Bacon and the Science of Rulemaking Science the and Bacon Francis UTHERLAND ILLIAM W REDERIC F 2013] Id. at 838. 317–18 ed. 2012). (2d See Wendell Holmes, Jr. to the Critical Legal Studies Movement—Wendell Holmes, Jr. B. Oliver Legal Realists: Rule “Skepticism” from The Attack of the Both Oliver Wendell Holmes, Jr. and Christopher Columbus Both Oliver Wendell Holmes, Literally facing Langdell and his disciple James Barr Ames at the Literally facing Langdell and his logic: it has been experience. The life of the law has not been prevalent moral and politi- The felt necessities of the time, the policy, avowed or uncon- cal theories, intuitions of public judges share with their scious, even the prejudices which INTER 134. had strongly criticized Harvard Law School in an entry written with Arthur Holmes 131. 764 N.E.2d 825 (Mass. 2002); see also D 132. was an emphatic dissent. See Messing, 764 N.E.2d at 836–40 There (Cordy, J., concur- 133. AWYERS M K Langdell believed that radical reform was needed in American legal Langdell believed that radical reform education after the Civil War. ity of case law has been instilled, consciously or unconsciously, in been instilled, consciously or ity of case law has that, a distrust of lawyers and, with generations of Anglo-American Baconian driven by progressive, inductive, prospective rulemaking methods. the prospective advantages of judicial rulemaking for guidance to for guidance of judicial rulemaking advantages the prospective is tough law,” But “taught law the bar. C. Sedgwick in the American Law Review (October, 1870), which observed that the School was “almost a disgrace to the Commonwealth . . . . We say ‘almost a disgrace’ because, undoubt- be edly, some of its courses & lectures have been good, and no law school of which this can said is hopelessly bad.” S L W & P.C. v. President Weliky, & Rudavsky Messing, University, Harvard , Harvard College Fellows of \\jciprod01\productn\M\MRE\46-2\MRE207.txt ring in part and dissenting in part). According to Justice Cordy, “[i]n this context it is painful to see the court now claim that, when it adopted the commentary, it did not intend its conse- quence.” approach that, like Coke, treated law as an “artificial science” with approach that, like Coke, treated rigorous central principles—an that spread like wildfire approach Holmes, on the other hand, saw throughout America’s law schools. law very differently. 1880, Holmes challenged Lowell Institute Lectures in November, that the common law was the fundamental “gospel of Savigny,” immortal words, later repeated fixed and immutable. In Holmes’s in his Common Law (1881): the Comment was erroneous and that only the “control group” of the “control and that only was erroneous the Comment covered. University was Harvard C Y 33129-mre_46-2 Sheet No. 123 Side A 03/21/2013 10:43:50 A 03/21/2013 123 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 123 Side B 03/21/2013 10:43:50 R R M K E- C Y R OQUIL- . 46:2 C EGAL IBERALISM OL , L L [V 18-MAR-13 12:07 EGAL ALMAN L K AURA AREER OF C Seq: 36 Seq: 1 (1st ed. 1881); see also TRANGE AW S a priori postulates, or fall L HE , T OMMON from unknown C ALMAN HE K ., T 137 R AURA , J OLMES H 136 ENDELL supra note 137, at 36. 135 , W University of Michigan Journal of Law Reform , 1927–1960 (1986); L LIVER OLMES ALE Y supra note 10, at 558. , You might think that, since Holmes and the legal realists were You might think that, since Holmes the law into a series of seem- [h]owever much we may codify ingly self-sufficient propositions, these propositions will be but a phase in a continuous growth. To understand their scope From these great lines evolved the famous “legal realist” school From these great lines evolved the fellow-men, have had a good deal more to do than the to do more deal a good have had fellow-men, be men should the rules by which in determining syllogism governed. continued: Holmes all theories said will explain the failure of What has been whether they law only from its formal side, which consider the the corpus attempt to deduce into the humbler error of supposing the science of the law to error of supposing the science into the humbler of part with , or logical cohesion reside in the elegantia juris and never that the law is always approaching, part. The truth is principles It is forever adopting new reaching, consistency. from his- end, and it always retains old ones from life at one absorbed or which have not yet been tory at the other, only when it will become entirely consistent sloughed off. It ceases to grow. 136. H 137. generally the excellent accounts of Laura Kalman in L See 135. O ALISM AT 13–22, 57–58, 82–84 (1996). 584 \\jciprod01\productn\M\MRE\46-2\MRE207.txt LETTE critical of legal formalism, they might be more hospitable than the critical of legal formalism, they might But you would be wrong. To formalists to progressive rulemaking. of legal realism was skepticism grossly oversimplify, at the heart of any legal rule, if what was about the “purity” or “neutrality” from political or economic bias. meant was that the rule was free playing field” would appear to Indeed, the very notion of a “level abstract, but wishful thinking in legal realists as a worthy goal in the were a myth if one truly believed practice. Rationalist, codified rules scientific manner, par- that they could be applied in a predictable, words, ticularly over time. In Holmes’s of jurisprudence that dominated Columbia Law School in the of jurisprudence that dominated of Louis Brandeis and Jerome 1930s, drove the great jurisprudence Studies Movement at Harvard Frank, and inspired the Critical Legal and Stanford in the 1980s. 33129-mre_46-2 Sheet No. 123 Side B 03/21/2013 10:43:50 B 03/21/2013 123 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 124 Side A 03/21/2013 10:43:50 R R R R S- E 585 RIGINS ENDELL SSAYS IN LEADING O ELECT E P W HE , T LIVER ELECT 18-MAR-13 12:07 QUITY RANDEIS AND THE MES E supra, at 707. Ames A ., B , R , J ARR 138 B SSAYS supra, at 753, 775, empha- , Its promise of neu- E AMES URCELL 140 Seq: 37 Seq: SSAYS EVELOPMENT OF ELECT E supra, at 738. Langdell’s contribu- A. P 378, 374–81 (1950). , D HE IND ELECT SSAYS DWARD ., T M E E reprinted in 2 S unknown ELECT MERICAN A HE OLLOCK ET AL (1885), P , T (Ernst Freund, William E. Mikell & John H. Wigmore eds., (Ernst Freund, William E. Mikell & John H. QUITY (1877), reprinted in 2 S reprinted in 2 S E 26–33, 135–36 (2000). For a full discussion, see Burbank, supra ISTORY Francis Bacon and the Science of Rulemaking Science the and Bacon Francis REDERICK OMMAGER H F C IR (1908), NGLISH ROCEDURE EGAL E supra note 45, at 1083 n.296 (quoting Letter from Hon. Louis D. Brandeis note 135, at 37. One of the more interesting exchanges between supra note 135, at 37. One of the more interesting P TEELE L But a shift from “absolutes to relatives” and from “absolutes to relatives” and But a shift from , S RUSTS AW ARLY ONSTITUTION 139 L T C See generally Burbank, supra note 45, at 1069–83. ., E 2013] ENRY OLMES R MERICAN , J ANON -A C SES AND ]. Holmes had previously argued that the substantive law of equity did not necessarily ]. Holmes had previously argued that the substantive In one system, therefore, the court is active, assuming the supervision and control of In one system, therefore, the court is active, to end; in the other, it is passive, leaving the proceedings in an action from beginning in their own way. the respective attorneys to conduct their proceedings fully, to know how they will be dealt with by judges trained in trained judges with by be dealt will how they to know fully, know must ourselves embodies, we which the law the past is the law has been history of what of that past. The something law is. of what the to the knowledge necessary thinking “a new way of realism” was put it, “legal As Commager INTER U 139. H 138. H 140. Burbank, OLMES NGLO ROGRESSIVE M K freedom.” Senator Thomas W. Shelton’s 1926 letter to the federal judges seeking their views on a uni- Senator Thomas W. Shelton’s 1926 letter to the federal judges seeking their views on a also form federal rule approach) (“The responses from U.S. Supreme Court Justices were mixed (Sutherland and Stone clearly for the Enabling Act; Brandeis and Holmes clearly against).”). SAYS embody “superior ethical standards” compared with the common law. O embody “superior ethical standards” compared OF Holmes and Langdell and Langdell’s loyal disciple, James Barr Ames, occurs in the context Holmes and Langdell and Langdell’s loyal disciple, and equity pleading. See 2 S of essays they prepared on the history of equity note 45, at 1083 n.296; see also Subrin, supra note 31, at 958 n.284 (citing the responses to 1908) (published by the Association of American Law Schools) [hereinafter 2 S 1908) (published by the Association of American tion to the volume S sized the active judicial control of equity as an advantage over common law: sized the active judicial control of equity as Id. at 775. This, of course, is consistent with Subrin’s thesis that the philosophy of modern federal rulemaking evolved from the procedure of equity. Subrin, supra note 31, at 929–73. tral, transparent, and prospective rules that could be relied on as tral, transparent, and prospective suspect and, as a practical constants over time was intellectually testing such rules, if this matter, futile. Enacting and empirically blasted back, “The acceptance of these conclusions would be difficult for any one who has blasted back, “The acceptance of these conclusions Langdell.” J studied his equity under the guidance of Professor P A H W \\jciprod01\productn\M\MRE\46-2\MRE207.txt FROM about law and of applying it. It was a shift from absolutes to rela- applying it. It was a shift from about law and of to practices, from passive—andtives, from doctrines therefore pes- simistic—determinism to creative—andoptimistic— therefore “doctrines to practices” again favors the evolutionary freedom of again favors the evolutionary “doctrines to practices” law, that acknowl- an intellectually honest case case law, this time ideological, and is a vehicle for political, edges that the judiciary even economic change—the a Justice case law of a Lord Mansfield, both Holmes and Court. It is easy to see why Brandeis, or a Warren Act, Brandeis the adoption of the Rules Enabling Brandeis opposed being “ ‘unreservedly against the measure.’ ” to Hon. Thomas J. Walsh (May 14, 1926)); see also C Y 33129-mre_46-2 Sheet No. 124 Side A 03/21/2013 10:43:50 A 03/21/2013 124 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 124 Side B 03/21/2013 10:43:50 R M K C Y . 46:2 OL [V 18-MAR-13 12:07 Conley to Twombly to 141 L.J. 1, 13 n.43 (2010). My note 3, at 337–68. UKE Seq: 38 Seq: supra , ATHEWS M unknown Dangerous to Democracy note 10, at 313; see . 261, 288 (2009) (outlining view that the rulemaking process is EV . 69, 72–73, 99–100 (2010). There is a useful list of “rules critics” in supra , EV . L. R A University of Michigan Journal of Law Reform Prudence” and the Modern Populist—Rulemaking as OQUILLETTE See, e.g., Brooke D. Coleman, Recovering Access: Rethinking the Structure of Federal Civil Legal formalists and legal realists have both questioned the core Legal formalists and legal realists While there are still “old-fashioned” formalists on today’s law on today’s formalists are still “old-fashioned” While there Bacon made no attempt to hide his lack of faith in democracy, if Bacon made no attempt to hide 142 C. Babington Macaulay, “Civil The Political “Whig” Attack: Thomas 142. C 141. assumptions of Baconian rulemaking and the tradition of equity assumptions of Baconian rulemaking is a third group whose opposition from which it springs. But there the most persistent, historically, to Bacon and his thought has been from the great Whig politi- and the most vehement. Representatives Baconianism; they have feared cal traditions have not only opposed it. ideologically skewed); Paul J. Stancil, Close Enough for Government Work: The Committee Rulemak- ing Game, 96 V special thanks to Andrea L. Kuperman, Chief Counsel to the Rules Committees and true special thanks to Andrea L. Kuperman, Chief Counsel to the Rules Committees and colleague and friend, for her tireless assistance. 586 was which Congress, of be a function should chosen, the route was controver- in cases and rules in practice, Applying openly political. evolve in allow the rules to who could best done by judges, sies, was could and realists this, both the formalists growth.” On “continuous reasons. for different agree, although has shifted to the the center of academic thought school faculties, realists. Like Brandeis, Frank, and the legal heirs of Holmes, realists, whether themselves, today’s legal Holmes and Brandeis or not, see followers of “critical legal studies” they call themselves whether done an inherently political process, law reform as of non-partisan, or courts. No wonder the idea through legislation rulemaking is committees, whose prospective “objective” rules whose goals are a “scientific” research, and based on empirical, litigants, is often legal process for all federal more just and efficient in American academia today. met with skepticism \\jciprod01\productn\M\MRE\46-2\MRE207.txt Rulemaking, 39 N.M. L. R by that one meant a system that assumed an egalitarian society. by that one meant a system that modern technology, Bacon main- Long before the triumphs of equal in their intelligence and tained that men were not created Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 D Arthur Miller’s Duke Conference Address. See Arthur R. Miller, From 33129-mre_46-2 Sheet No. 124 Side B 03/21/2013 10:43:50 B 03/21/2013 124 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 125 Side A 03/21/2013 10:43:50 R R R R R R R , , US- In 587 R supra ACAU- ACON 144 M B OQUILLETTE ERTRAND RANCIS B 18-MAR-13 12:07 ABINGTON B (1651). C see also supra note 1, at 260–61 supra note 1, at 256–62 , , HOMAS T Seq: 39 Seq: EVIATHAN Further, Bacon had lit- had Bacon Further, Leveraged by the power Leveraged by the 143 OQUILLETTE 145 OQUILLETTE C reprinted in , ACON B unknown Over time, public safety would in- Over time, public ); see also C ORD 146 , L 535–41 (1961) (describing Hobbes’s suspicion of in- supra note 1, at 258–59; accord Spedding vol. III, supra 341, 341–408 (1860). , TLANTIS A SSAYS ACAULAY E EW HILOSOPHY M Macaulay pulled no punches. Had Bacon kept Macaulay pulled no punches. Had supra note 1, at 227 (quoting Spedding vol. III, supra note 2, at supra note 1, at 227–34; Spedding vol. IV, supra note 2, at 53–54. P ). Bacon’s fictional utopia was ruled by an elite secret order, the ). Bacon’s fictional utopia was ruled by an OQUILLETTE ). Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , , 147 ISTORICAL ESTERN ABINGTON TLANTIS H W B EVIATHAN A (1624) (describing Bacon’s utopia called Bensalem); Spedding vol. III, (1624) (describing Bacon’s utopia called Bensalem); EW OQUILLETTE OQUILLETTE 2013] HOMAS See C ISTORY OF TLANTIS RITICAL AND note 1, at 237–43 Aphorisms on political thinking (noting the likely influence of Bacon’s Bacon called the individual human mind an human mind the individual Bacon called Novum Organum, A , H Whig historians from the seventeenth century onward saw Ba- Whig historians from the seventeenth , C INTER 146. Spedding vol. III, supra note 2, at 151–54; see 145. In Bacon’s words, “ from the nature of a clear and equal ‘For the mind of man is far 147. T 143. structure, see F For an understanding of Bacon’s view of the social 144. EW M K N tle faith in individualism. Even highly talented individuals could be individuals Even highly talented in individualism. tle faith dan- they could be highly “idols” that by their personal so deceived government. a coercive, all-knowing the absence of gerous in of modern technology, such individuals could be capable of great such individuals could be of modern technology, destructive power—a of modern ter- very close prediction by Bacon deeply disturbing fully developed in Bacon’s rorism. The solution, vest power in a strong, (1624), was to utopia, the New Atlantis based on elitist whose leaders were chosen central government, as a collective to and intelligence and operated principles of merit deviation. control individual 394–95). Bacon’s secretary, Thomas Hobbes, would later take this suspicion of individualism as against Bacon’s secretary, Thomas Hobbes, would later in his L the collective wisdom to its final classic expression glass, wherein the beams of things should reflect according to their true incidence; nay, it is glass, wherein the beams of things should reflect and rather like an enchanted glass, full of superstition and imposture, if it be not delivered reduced.’ ” C LAY SELL (footnote omitted) (“Bacon invented the expression ‘knowledge is power.’ In Bensalem, knowledge was all-powerful. But there was also something deeply disquieting about Bensalem and Salomon’s House. . . . [I]t was a society which, to a modern liberal, would be oppressive, of sexist, hegemonic, hierarchical, intolerant and, in the last analysis, based on a system secrets.”). W world. of the natural understanding their \\jciprod01\productn\M\MRE\46-2\MRE207.txt supra of the Aphorisms); of his secretary, Thomas Hobbes, who had custody “enchanted glass” whose inherent flaws distorted the clear reflec- distorted the clear inherent flaws glass” whose “enchanted like a bewitched mirror. tion of the truth the note 2, at 121 (preface to N “Order” or the “Society” or the “Fathers” of Salomon’s House, to which all state officers were “Order” or the “Society” or the “Fathers” of Salomon’s inherently subordinate. C creasingly demand that the rest of society be closely governed—and that the rest of society be closely creasingly demand of security and by an ever-present system closely watched surveillance. to populist democracy. This con’s thought as absolutely dangerous Babington Macaulay’s great at- sentiment culminated in Thomas reprinted in Critical and Histori- tack on Bacon in his “Lord Bacon,” cal Essays of 1866. note 2, at 154–55. dividualism in L (discussing N C Y 33129-mre_46-2 Sheet No. 125 Side A 03/21/2013 10:43:50 A 03/21/2013 125 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 125 Side B 03/21/2013 10:43:50 M K C Y 151 . 46:2 OL [V 18-MAR-13 12:07 Seq: 40 Seq: unknown 152 And “[t]o make men perfect was no part of Bacon’s And “[t]o make men perfect was University of Michigan Journal of Law Reform 150 148 Id. at 388. Id. at 391. Id. at 389. Id. at 397. Id. at 414. 149 We should not then have seen the same man at one time far in We should not then have seen the in the rear of his generation. the van, and at another time far own that he who first treated We should not then be forced to the last Englishmen who legislation as a science was among philosophers to the used the rack, that he who first summoned was among the last English- great work of interpreting nature men who sold justice. [o]ur opinion of the moral character of this great man has this great man character of of the moral [o]ur opinion in his life been passed explained. Had sufficiently already been have deserved in all probability, he would, literary retirement, but as a wor- not only as a great philosopher, to be considered, his prin- member of society. But neither thy and good-natured when strong were such as could be trusted, ciples nor his spirit to be to be resisted, and serious dangers temptations were braved. Today, we live in an America where elected judges are the over- In short, Bacon was politically dangerous. Macaulay argued fur- was politically dangerous. Macaulay In short, Bacon tendencies or his commitment And it was not just Bacon’s elitist 148. 149. 150. 151. 152. These were words of faint praise from an idealistic Whig. Macaulay These were words of faint praise concluded: 588 all only, as theory tendencies elitist left his and of politics, out In Macaulay’s words, But he did not. been better. might have \\jciprod01\productn\M\MRE\46-2\MRE207.txt whelming norm in the states, and life-appointed federal judges ther, “If we admit the justice of Bacon’s answer, we admit it with the justice of Bacon’s answer, ther, “If we admit heard the facts of that which Dante felt when he regret, similar to the first circle of heathens that were doomed to those illustrious Hell.” Macaulay and his Whig fol- to authoritarian politics that alarmed idealistic, at least when it came lowers. Bacon’s philosophy was not all individuals to be flawed, and to individualism. Bacon believed dangerous, priority. Rather, his individual freedom was a low, if not Again, as Macaulay put it, goal was pragmatic, step-by-step progress. Baconian doctrine, Utility and “[t]wo words form the key of the Progress.” plan. His humble aim was to make imperfect men comfortable.” plan. His humble aim was to make 33129-mre_46-2 Sheet No. 125 Side B 03/21/2013 10:43:50 B 03/21/2013 125 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 126 Side A 03/21/2013 10:43:50 EW 589 N HE 18-MAR-13 12:07 (Oct. 23, 2011, OST . P . 1655 1660–66 (1995). ASH EV Advice and Dissent, T Seq: 41 Seq: GOP Candidates: Bashing Judges, . U. L. R Nor will the “legal realist” M 154 155 unknown —and be made legal rules should that , Dec. 20, 2011, at A21. As to the overwhelming role of , Dec. 20, 2011, at A21. As to the overwhelming IMES Francis Bacon and the Science of Rulemaking Science the and Bacon Francis , W GOP Candidates Would Cut Federal Judges’ Power . 597–608 (proposing major changes in the first–year (2007) curriculum toward 2013] EV Renewal of the Federal Rulemaking Process, 44 A The powerful discretion of a Lord Chancellor would be would of a Lord Chancellor discretion The powerful See, e.g., See generally Todd D. Rakoff & Martha Minow, A Case for Another Case Method, 60 , May 26, 2003, at 42–48. (May 19, 2004), http://www.nytimes.com/2004/05/19/us/deal-ends-impasse-over- 153 . L. R So what does one “do” about these historical lines of attack on “do” about these historical lines So what does one INTER 155. Judicial Improvements and Access to Justice Act of 1988, Pub. L. 100-702, Title See 153. 154. IMES AND ORKER M K legislative and regulatory sources as opposed to case-law studies only—changes now actually being implemented at Harvard Law School). IV, § 401(a), 102 Stat. 4642, 4649 (codified at 28 U.S.C. § 2074 (b) (2006)) (indicating Con- to gress’s special reservation of power with regard to the Federal Rules of Evidence owing congressional rejection of the original proposed Article V of these rules); Judith A. McMor- row & Daniel R. Coquillette, Federal Law of Attorney Conduct (2010); see also Peter G. McCabe, Y W prima- presidential the recent in both parties target of been a have ries. \\jciprod01\productn\M\MRE\46-2\MRE207.txt judicial-nominees.html?ref=charleswsrpickering; Jeffrey Toobin, judicial-nominees.html?ref=charleswsrpickering; descendants of Holmes and Brandeis lose their “rule skepticism.” descendants of Holmes and Brandeis populist, democratic politics in to- And perhaps most importantly, styled “Tea Party” or “Social day’s America, left or right, whether meritocracy of elite exper- Justice,” will never accept the inherent of Congress’s historic delegation tise embodied in the philosophy Act. of power in the Rules Enabling elected judges in most state courts, see Stephen J. Choi et al., Professionals or Politicians: The elected judges in most state courts, see Stephen Appointed Judiciary 12–13Uncertain Empirical Case for an Elected Rather than (John M. Olin Law special thanks to Charles Riordan, my most & Econ., Working Paper No. 357, 2007). My on this point. While this theme was commonly invaluable editorial assistant, for his assistance over the composition of the federal judici- found in the Republican 2012 primaries, concern Deal Ends Impasse over Judicial Nominees, N.Y. ary is found in both parties. See Neil A. Lewis, T regarded as anti-democratic, and Bacon’s record for corruption record for and Bacon’s as anti-democratic, regarded and thus unaccountable of unelected seen as symptomatic would be should govern—the that the elite arguments power. Bacon’s thesis the New Atlantis of his utopia, the bias of demo- “scientific” and immune from by elite experts, as in the England be as suspect in America today cratic politics, can of Coke and Macaulay. rulemaking, par- theories of law reform and progressive Baconian academia and of the realities of modern American ticularly in light Rules Enabling To begin, nothing about the democratic politics? Langdellian Committees will satisfy these critics. Act or the Rules classrooms of for a century in the “Socratic” formalists, forged their faith in schools, are not about to abandon America’s elite law superiority of case law—althoughthe intellectual and even moral and other major law schools first-year curriculum reform at Harvard is beginning to change the paradigm. http://www.washingtonpost.com/politics/gop-candidates-would-cut-federal-judges-power/ Chemerinsky, 2011/10/23/gIQA5u4Z9L_story.html; Erwin Threatening Democracy, L.A. T V C Y 33129-mre_46-2 Sheet No. 126 Side A 03/21/2013 10:43:50 A 03/21/2013 126 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 126 Side B 03/21/2013 10:43:50 R M K C Y See . 46:2 OL 637 (2012). [V 18-MAR-13 12:07 EFORM chap. 1, 1-1-1-56 (3d ed. . J.L. R ICH Seq: 42 Seq: RACTICE P As for the “legal realism” As for the “legal 156 . 213 (2010). Judge Kravitz looks to the EDERAL EV F S ’ unknown OORE . U. L. R ., M ENV How do we retain Congress’s confidence? 158 Transparency of process, continued communica- Transparency of process, continued 159 OQUILLETTE ET AL 157 University of Michigan Journal of Law Reform R. C ANIEL See sources cited supra note 155. , 46 U. M See Richard L. Marcus, Shoes That Did Not Drop Finally, and perhaps most importantly, today’s rulemakers must Finally, and perhaps most importantly, But wise rulemakers can mitigate these inherent, historic hostili- historic inherent, these can mitigate wise rulemakers But Professor Robert Cover wrote that Professor Moore “always envisioned the Federal Professor Robert Cover wrote that Professor of procedure, one which liber- Rules as a tool which embodies a practical philosophy I like to think that is what the Civil Rules ates the courts to achieve substantive ends.” Committee continues to do to this day—to the procedures necessary to provide judges “liberate” them to decide individual cases on their substantive merits with competence and integrity. 158. 159. Advisory Committees are, by mandate of Congress, “sunshine” committees. The 156. 157. the discussion of the history and philosophy of Federal Rule of Civil Procedure 1 See in 1 D Bankruptcy Reform Act of 1994, Pub. L. 103-394, Title I, § 104(e), 108 Stat. 4110 (codified as 2008). Congress’s 1988 “Sunshine” Amendments to the Rules Enabling Congress’s 1988 “Sunshine” Amendments Act tell us how. See also the Hon. Mark Kravitz’s thoughtful treatment of the same subject in To Revise, or Not See also the Hon. Mark Kravitz’s thoughtful to Revise: That Is the Question, 87 D 590 \\jciprod01\productn\M\MRE\46-2\MRE207.txt not repeat Bacon’s mistakes in defying democratic politics. Ulti- not repeat Bacon’s mistakes in created by Congress and exist at mately, the Rules Committees were Congress’s discretion. ties. It is here where Edward Cooper becomes the true disciple of the true Cooper becomes here where Edward ties. It is start with Let us legal philosophy. side of Bacon’s the better evolution deference to the Intelligent legal formalism. Langdellian marked rule “fixes,” has rushing in with law, rather than of case As scholar and Reporter. career both as distinguished Cooper’s Drop, demon- in this volume, Shoes That Did Not Rick Marcus’s article at least as much in achievements have been based strates, Cooper’s in reforming action. wise deference as so influential in today’s law schools, and its inherent cynicism and today’s law schools, and its inherent so influential in lawmak- about any “objective” and “nonpartisan” “rule skepticism” a relentless ef- has to be the same as Bacon’s (i.e., ing, the answer from political and empirical research as free fort to develop good rules against social possible and devoted to testing economic bias as Where rulemak- widely, if not universally, shared). benefits that are the basic demonstrated as effective in achieving ing can be thus of Civil Procedure, “the just, goals of Rule 1 of the Federal Rules of every action and pro- speedy, and inexpensive determination can be mollified, if not ceeding,” even “rule skepticism” convinced. tion with the key Congressional committees and staffers, and, ulti- tion with the key Congressional felt Congressional concerns, are mately, deference to strongly wisdom of the past: Id. at 225 (footnote omitted). in Daniel R. Coquillette, Scope and Purpose of the Federal Rules of Civil Procedure as Defined in Rule I, 33129-mre_46-2 Sheet No. 126 Side B 03/21/2013 10:43:50 B 03/21/2013 126 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 127 Side A 03/21/2013 10:43:50 R R R R , RAC- 591 P reprinted in , OQUILLETTE EDERAL F S 18-MAR-13 12:07 EGE ’ & C L OORE and who would ORROW persons of “great ., M M 162 C 161 EPORTERS A Seq: 43 Seq: R supra note 1, at 210, 214 n.54. , But in describing the desired OQUILLETTE ET AL 160 OQUILLETTE R. C unknown ONSTITUUNTUR LEZ ANIEL C ONCLUSION C RDINATIO QUA Francis Bacon and the Science of Rulemaking Science the and Bacon Francis supra note 2, at 264–66; C Edward Cooper is exactly the kind of “reporter” Bacon Edward Cooper is exactly the 2013] 163 Id. at 86 and the Amendment of (“A Memorial Touching the Review of Penal Laws Id. at 265 (“Ordinatio qua Constituuntur Lez Reporters de Lege”). 801–27 ed. 2001); McCabe, supra note 155, at 1656–68; (3d M When Francis Bacon spoke of “reporters,” it was in the context of spoke of “reporters,” it was When Francis Bacon I hold every man a debtor to his profession, from the which as I hold every man a debtor to his countenance and profit, so men of course doe seeke to receive by ways of amends, ought they of duty to endevour themselves this is performed in to be a help and ornament thereunto; INTER 161. Spedding vol. XIII, supra note 2, at 69 (“Propositions to His Majesty”). 162. 163. 160. Francis Bacon, O M K something unheard of at the time. the Common Law”). supra note 155. TICE amended at 28 U.S.C. § 2073 (2006)); D W century. another is to survive Act Enabling the Rules if required up for must not stick Rules Committees to say that the That is not system—they for the legal what is best the Arti- allegiance to owe an Con- they fail to remind well. Nor should system as cle III federal wisdom of the long-term of short-term controversies, gress, in absolute Enabling Act. But the Rules itself in establishing Congress of Edward cautious deference, the hallmark transparency and the only an- as Reporter, are an answer, indeed Cooper’s career democracy in rulemakers to the voices of populist swer, of federal today’s America. \\jciprod01\productn\M\MRE\46-2\MRE207.txt assist in “bearing up [the laws’] authority in the eyes of our people, assist in “bearing up [the laws’] authority said laws and the execution of and give life and vigor to our them.” learning” who would “carefully and faithfully receive the Rules and learning” who would “carefully and King’s Courts” Judicial Resolutions given in the his far-reaching and genuinely radical proposal to introduce profes- and genuinely radical proposal to his far-reaching the decisions of the courts—sional and expert reporters to record qualities of such reporters, Bacon used language that resonates qualities of such reporters, Bacon Committees, institutions with deeply with today’s Federal Rules His vision of progressive which he would have deeply identified. science, called for professionals of lawmaking, tested by empirical exceptional intelligence and integrity—ironically, a standard he for “grave and sound lawyers, only met in the first part. He called be reporters,” with some honorable stipend, to had in mind. Bacon said: Spedding vol. XIII C Y 33129-mre_46-2 Sheet No. 127 Side A 03/21/2013 10:43:50 A 03/21/2013 127 Side Sheet No. 33129-mre_46-2 33129-mre_46-2 Sheet No. 127 Side B 03/21/2013 10:43:50 M K C Y OM- C . 46:2 OL [V 18-MAR-13 12:07 AXIMS OF THE M 164 ULES AND Seq: 44 Seq: R RINCIPAL P OME unknown S OLLECTION OF B2 (1639). , A C ACON NGLAND B University of Michigan Journal of Law Reform E RANCIS AWES OF L some degree by the honest and liberal practice of a profes- of practice and liberal honest by the degree some and bee able to visite . . . if a man but much more sion . . . itself; of the science foundation the roots and strengthen also and dignity, but it in reputation not only gracing thereby and substance. it in perfection amplifying strengthens the his profession, who “visits and “An ornament” to 164. F MON 592 \\jciprod01\productn\M\MRE\46-2\MRE207.txt roots of the science itself,” thereby “gracing it in reputation” and itself,” thereby “gracing it roots of the science and substance”—aapplying it “in perfection description, by perfect Edward Cooper. Francis Bacon, of 33129-mre_46-2 Sheet No. 127 Side B 03/21/2013 10:43:50 B 03/21/2013 127 Side Sheet No. 33129-mre_46-2