Monday, February 24, 2020

Funk on Fusion and on Federal Procedure

Kellen Funk, Columbia Law School, has posted two book chapters.  The first is The Union of Law and Equity: The United States, 1800-1983, which appears in Law and Equity: Fusion and Fission (Cambridge):
From the colonial era to the present day, a number of jurisdictions in the United States have purported to fuse the disparate systems of common law and equity. This chapter focuses on the intellectual history of fusion from the 1848 Field Code to the 1938 Federal Rules. The New York corporate lawyer David Dudley Field and his fellow codifiers sought to replace the distinction between law and equity as the fundamental organizing principle of the law with the distinction between substance and procedure. They believed most of the distinction between law and equity inhered in institutions and procedures and would therefore disappear the moment a statute erected a single court with uniform proceedings. Their vision was shared by the architects of the federal procedure code a generation later. In practice, however, fusion remained far less complete than Field predicted or American lawyers commonly believe. The essay illustrates the dramatic fissions that remained in Field’s own post-fusion practice in 1870s New York.
The second is The Handmaid of Justice: Power and Procedure in the Federal Courts, which appears in Approaches to Federal Judicial History (Federal Judicial Center):
This essay sketches a story of federal procedure writ large: it tells how federal procedure morphed from being the essence of federal power to being a mere instrument of power, from the instantiation of Justice itself in the Marshall Court’s telling to the mere handmaid of Justice as Charles Clark described it. Along the way, I hope to do three things: 1) point out a few tantalizing gaps in our knowledge, should other researchers wish to pursue them, 2) provide a guide to the often puzzling sources of procedural law, especially across the nineteenth century, and 3) wrestle with the question of how federal jurists have defined "procedure" over time.
–Dan Ernst