For students taking civil procedure

The Parable of the Forms

|The Volokh Conspiracy |

If you are starting law school this fall, one of your classes might be civil procedure. If so, do I have a story for you. Actually, more of a parable. Here is a parable that describes the major changes in civil procedure (especially pleading) over the last five hundred years, with an emphasis on the logic behind the forms of action, code pleading, and the Federal Rules of Civil Procedure.

(If you've read this parable before, you may be interested in the new version I just posted. Among other changes, it reflects excellent comments about codification from Professor Kellen Funk of Columbia.)

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  1. I wanted to comment that this history is not just useful academically, but also in practice. For one thing, virtually every state has a “reception statute” which adopts the common law of England as of a certain year. Hence I recently had to extensively cite Blackstone and other English authorities in a case determining whether there was a right to a civil jury under a state constitution (7th Amendment, so far, is not incorporated by the 14th) which, like (but not co-extensively with) the 7th Amendment secures the right to a jury as known at common law.
    My recent education in the area does point to an omission in the parable, which has a nod to equity, but not the writ-free less form- driven Court of the Exchequer which governed civil actions by the sovereign against individuals commenced by an “information” filed by the attorney general or a “public informer.” A simple cure might be a sentence or parenthetical about how department/ administrative problems with students had a very flexible simple form sent to a particular dean. On the other hand, it may be beyond the scope of what the parable is trying to illustrate.

  2. Possibly the most profound observation any law professor of mine made was “Rule 2 is a lie.” The extent to which he was correct continues to amaze me.

    1. Got me. What’s Rule 2?

      1. I guess you didn’t read the article that this post is about?

        1. Rule 2 is the one that says “this rule is false,” right?

  3. I thought it was quite useful for incoming law students. As a person who had no lawyers in the family (and no lawyers who were friends with my parents), I came into law school not really understanding concepts like this.

    Like tens of thousands of law students with a similar lack of prior exposure to the law, it was something I picked up along the way. But it would have been helpful to me (in terms of seeing the Bigger Picture) to have had this before starting law school.

    Nice idea, and nice execution.

  4. Does a Sanity Clause still come standard in every contract?

    1. I stopped believing in Sanity Clause years ago.

  5. I am still waiting for the opportunity to allege that the plaintiff was beaten about the head and shoulders with sticks and staves.

    1. Okay, I actually did laugh out loud. And in the back seats of a courtroom. Thanks for nothing! 🙂

      1. I like to think of myself as the Greg Giraldo of legal blog commenters.

        It is a bit of a niche

  6. As a non-lawyer but as someone who knows the archival profession pretty well, my only quibble is that archival materials are more likely to be held by the library than by the history department.

    But yes, this was a very interesting parable.

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