Reforming The Law


Lincoln once said that three things only make up a nation: its land, its people, and its laws. When the Thirteen Colonies declared independence, they suddenly found themselves, at least in theory, with hardly any laws at all. To meet the emergency, they quickly enacted legislation declaring the common law of England, which was in effect before July 4, 1776, to be once again the law of the newly sovereign states.

But as the nation developed, the common law had to be adapted to suit American conditions. The complicated laws of land tenure, for instance, a holdover from feudal days, were drastically simplified. Other changes came about for purely political reasons. One of these was the early adoption of the so-called American rule in this country’s courts. Under this rule each side of a lawsuit pays its own legal costs, regardless of who wins. Under the English rule the losing side pays the costs of litigation.

The reason the American rule came into being was that so many Americans in the early days of the country were debtors and so many of their creditors were foreigners, mainly British. Even “rich” Americans were usually rich in terms of land, not liquid assets. The new rule forced creditors to pay their own, often considerable, legal costs in order to collect a debt. This of course firmly discouraged the creditors from suing at all.

Every country’s laws are full of just such historical quirks, and if the American rule were nothing more than another of them, it wouldn’t much matter. But Walter K. Olson in a recent book ( The Litigation Explosion , published by Dutton) argues powerfully that it matters a great deal. He gives chapter and verse on exactly how the American rule has led, in recent years, to a huge increase in the number of lawsuits. All this litigation, of course, is immensely profitable to lawyers but a great detriment to both American society as a whole and to the country’s economy. A thorough reform of the legal system, Olson argues, is needed.

There is one problem: These changes will have to be made by lawyers, judges, and legislators (60 percent of whom are lawyers), the very people who benefit from the status quo. A cynic might be discouraged. And while I admit that personally I stand as one with Shakespeare on the first step to true reform (see Henry VI, Part II , Act 4, Scene 2, Line 85), as a historian I’m obliged to acknowledge that there was a time in American history when the law was in desperate need of reform and it was the lawyers, mimbile dictu , who reformed it.

The common law that was taken over from England had been evolving there for more than a thousand years and by the first decades of the nineteenth century was complex and arcane. The American states and the federal government had much simpler court systems, but their procedures, stemming from the same common law, were quite as needlessly complex. Then a very great lawyer named David Dudley Field decided to do something about it.

Field was born in Massachusetts on February 13, 1805. His family, like the Adamses and the Beechers, was one of those peculiar nineteenth-century New England clans that produced an extraordinary number of men and women of national distinction. His brother Cyrus would lay the Atlantic cable; his brother Stephen would sit on the U.S. Supreme Court for more than thirty years.

Field entered the practice of law in New York City in 1828 and soon became known for his expertise in “pleadings,” the stage of a lawsuit when the procedural complications were at their worst. In 1837, despite the handsome living he was making as one of the few people to understand their full complexity, he began agitating to reform these procedures. In 1846 he managed to get a requirement for codification inserted in the new New York State constitution.

Field served as a member of the commission formed to implement the constitutional mandate and there drafted his Code of Civil Procedure, a sweeping simplification of the common law. The new code was enacted by the New York State legislature in 1848 and soon spread to most other states and the federal government. In the 1850s and 1860s Field was the driving force behind the creation of civil and penal codes. In 1873 his codes formed the basis of the reform of the common law in Britain and from there spread throughout the English-speaking world and far beyond. In the 1870s he produced a Draft Outline of an International Code , which has deeply influenced international law to this day.

David Dudley Field’s legal codes were one of the great intellectual achievements of the nineteenth century. Yet outside the profession Field is today almost wholly forgotten. This is a great irony, for Field’s influence on the law vastly exceeds that of any justice of the U.S. Supreme Court.

The Field Code of Civil Procedure was not intended by its author to be fixed in stone. Just as the English common law had to be adapted to meet American conditions, so Field’s code had to be adapted to deal with changes brought about by the Industrial Revolution, then only beginning to make an impact on daily life.