Reforming the Law (September 1991 | Volume: 42, Issue: 5)

Lincoln once said that three things only make up a nation: its land, its people, and its laws. When the 13 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, 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 19th-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 19th 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.

As early as the 1860s, the need to amend it in New York State was clear. New York’s Supreme Court (which, despite its name, is the state’s lowest court for serious cases) was at that time divided into eight districts. Although the judges were elected by district, their powers ran to the borders of the state. Further, they were free to make rulings on any case brought before them, regardless of its status in any other district. This had not presented a problem in the 1840s, when time and distance kept the judges from interfering with one another.

The railroad and the telegraph, however, changed all this,

and lawyers began to go judge shopping. If one lawyer induced a judge to issue a ruling in his favor, his opponent would try to get a second judge in another district to vacate the order. Sometimes there would be three or four judges issuing conflicting orders in a single case. In 1869, an English observer described the results: “In New York, there is a custom among litigants, as peculiar to that city, it is to be hoped, as it is supreme within it, of retaining a judge as well as a lawyer. … it is absolutely essential to each party to have some magistrate in whom they could place implicit confidence in an hour of sudden emergency.”

The Field code also gave the judges considerable powers in ex parte proceedings—those in which only one side of the case is heard and any rulings are intended only to protect life and property until a full hearing can be held. The transportation and communication revolution largely obviated the need for this wide judicial discretion, with its considerable potential for abuse, and Field worked long and hard to get these procedures changed.

But New York State was fast sinking into the pit of political corruption that would come to be epitomized by Boss Tweed. Legal reform was the last thing on the minds of the state legislature and some of its Supreme Court justices who were profiting handsomely.

There once was a time when the law desperately needed reform, and it was the lawyers, mirabile dictu, who reformed it.

To many lawyers and observers, the New York State law had become a real danger to New York City’s preeminence as a commercial center. “Law does not protect property,” the New York lawyer George Templeton Strong lamented in his diary, a lament that has a startlingly modern ring to it. “The abused machinery of law is a terror to property owners. No banker or merchant is sure that some person calling himself a ‘receiver,’ appointed ex parte as the first step in some frivolous suit he never heard of, may not march into his counting room at any moment, demand possession of all his assets and the ruinous suspension of his whole business, and when the order for a receiver is vacated a week afterwards, claim $100,000 or so as ‘an allowance’ for his services, by virtue of another order, to be enforced by attachment. No city can long continue rich and prosperous that tolerates abuses like these. Capital will fly to safer quarters.”

By the late 1860s. the New York State judicial system had become a national disgrace. “The Supreme Court is our Cloaca Maxima,” Strong wrote in 1870, “with lawyers for its rats.”

But the rats were moving to change things. The shrewder among them realized that their long-term self-interest required an honest, effective judicial system. Just as Strong was writing, a group of lawyers,

led by the former U.S. Attorney General William Maxwell Evarts, came together to organize the New York State Bar Association. Its purpose was both to police the profession and to lobby for legal reform.

In a speech that was widely printed in the newspapers, Evarts deplored how far standards had fallen in New York. In the early days of his practice, he said, “for a lawyer to come out from the chambers of a judge with an ex parte writ that he could not defend before the public, would have occasioned the same sentiment towards him as if he came out with a stolen pocket book.”

The new bar association’s opportunity came with the fall of the Tweed Ring the following year. Reform was suddenly the order of the day as the politicians not directly implicated scrambled to keep their jobs. The bar association contributed thirty thousand dollars, a very large sum in those days, to help pay the expenses of prosecuting corrupt judges, and they were swept out of office. It pushed through reforms, including new procedures forbidding judges to interfere in cases not before them and issuing ex parte injunctions without good reason.

Thanks to David Dudley Field, William Maxwell Evarts, and other members of the bar, New York State went in a few years from having the worst legal system in the country to having one of the best. Can their professional descendants do less today?

Reforming the Law (September 1991 | Volume: 42, Issue: 5)

Reforming the Law

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