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Civil Justice in CrisisComparative Perspectives of Civil Procedure$
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Adrian Zuckerman

Print publication date: 1999

Print ISBN-13: 9780198298335

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198298335.001.0001

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The Myth of Civil Procedure Reform

The Myth of Civil Procedure Reform

Chapter:
(p.53) 2 The Myth of Civil Procedure Reform
Source:
Civil Justice in Crisis
Author(s):

John Leubsdorf

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198298335.003.0002

Most lawyers in the United States emerge from law school in the grip of a myth. In the beginning, the myth runs, there was common law pleading, and it was very bad. Parties exchanged almost interminable series of pleadings — from declaration to surrebutter and beyond — in expensive and unsuccessful attempts to filter out invalid claims and defences without holding trials. Plaintiffs could not join related claims; defendants could not assert more than one defence; and advocates argued about how to fit claims into an incoherent medieval system of forms of action. The Field Code of 1848 initiated reforms, which the Federal Rules of Civil Procedure of 1938 consummated. As a result, cases were decided on their merits, without wasteful technicalities, and justice was done until 1975, when civil litigation somehow became even more expensive and time-consuming than under the common law. Even today, many first-year law students find much of this story in their books or hear it in their civil procedure classes. Most teachers realize that it is an oversimplification, but it furnishes too useful an organizing perspective to discard. This chapter addresses the following questions: How could we decide whether today's civil procedure is an improvement on the common law system? What are we comparing? Who sought or resisted reform? What difference did reform make?

Keywords:   civil procedure, legal reform, civil litigation, common law system, invalid claims

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