The Essentials of Modern Reform in the Litigative Process
| Author | Herbert Peterfreund |
| Published date | 01 May 1953 |
| Date | 01 May 1953 |
| DOI | http://doi.org/10.1177/000271625328700123 |
| Subject Matter | Articles |
154
The
Essentials
of
Modern
Reform
in
the
Litigative
Process
By
HERBERT
PETERFREUND
T 0
secure
&dquo;the
just,
speedy,
and
inexpensive
determination
of
every
action&dquo;
1 has
long
been
an
end
of
hu-
man
endeavor.
For
centuries
it
has
en-
gaged
the attention
of
kings
and
popes,
reformers
and
legislators,
lawyers
and
judges,
and,
needless
to add,
the
public.
And
yet,
despite
constant
dissatisfaction
with
legal
machinery
because
of
undue
delay,
unnecessary
technicalities,
and
unwarranted
evasion
of
the
merits
of
controversies,
procedural
reform
has
come
slowly.
One
need
only
read
of
the
long
struggle
for
reform
in
Eng-
land
2 and
in
many
civil
law
countries
3
to
recognize
&dquo;the
inveterate
nature
of
the
incongruity
between
procedure
and
substantive
law-the
former
petrifies
while
the
latter
is
in
its
budding
growth,&dquo;
and,
all
too
often,
the
&dquo;con-
servatism
of
the
lawyer
preserves
the
incongruity.&dquo;
4
Spearheaded
by
the
masterful
writ-
ings
of
Jeremy
Bentham,
codification
became
the
pattern
of
nineteenth-cen-
tury
reform
in
America.
So
great
was
the
influence
of
the Field
Code
5 that
by
the
turn
of
the
century
more
than
half
the
states
had
adopted
similar
codes.
In
our
own
century,
although
widely
recognized
as
outmoded,
pro-
cedural
codes
persist,
notwithstanding
constant
legislative
revision
and
occa-
sional
inhuman
treatment
by
the
judi-
ciary.
All
too
obvious
today
are
the
weaknesses
of
complicated
codes
formu-
lated
and
amended
by
a
body
which
has
little
or
no
contact
with
the
machinery
of
justice.
The
greatest
single
step
in
procedural
reform
during
the
twentieth
century
has
been
the
adoption
of
the
court
rules
em-
bodied
in
the
Federal
Rules
of
Civil
Procedure.
In
force
since
1938
and
eminently
successful
in
the
federal
sys-
tem,
the
rules
are
and
will
continue
to
be
a
model
for
practice
reform
through-
out
the
United
States.
It
will
be
the
purpose
of
this
paper
to
explore
the
salient
features of
the
rules,
the
extent
of
their
influence,
and
their
effect
upon
the
administration
of
justice
in
this
country.&dquo;
6
COURT
RULES
VERSUS
LEGISLATIVE
CODES
Two
features
of
the
Federal
Rules
in-
vite
immediate
attention.
First,
they
are
the
product
of
judicial
rather
than
legislative
rule-making.
The
Supreme
Court
of
the
United
States,
granted
rule-making
power
by
the
Congress,7
7
appointed
an
advisory
committee
to
1
Federal
Rules
of
Civil
Procedure
(herein-
after
referred
to
as
Fed. R.
Civ.
P.),
Rule
1.
2
Edson
R.
Sunderland,
"The
English
Strug-
gle
for
Procedural
Reform,"
39
Harv.
L.
Rev.
725
(1926).
3
Robert
W.
Millar,
"Civil
Procedure
Re-
form
in
Civil
Law
Countries,"
in
Field
Cen-
tenary
Essays
(1949),
p.
120.
4
Charles
M.
Hepburn,
The
Historical
De-
velopment
of
Code
Pleading
in
America
and
England
(1897),
pp.
31,
37.
5
New
York
Laws
1848,
ch.
379,
effective
July
1,
1848.
The
code
has
taken
the
name
of
its
draftsman,
David
Dudley
Field.
6
Space
limitations
will
not
permit
examina-
tion
of the
Federal
Rules
of
Criminal
Pro-
cedure,
which
became
effective
in
1946.
For
a
discussion
of
these
rules
see
George
F.
Longs-
dorf,
"The
Beginnings
and
Background
of
Fed-
eral
Criminal
Procedure,"
4
Federal
Practice
and
Procedure
(Barron)
7
(1951).
7
Supreme
Court
Enabling
Act,
48
Stat.
1064
(June
19,
1934,
ch.
651),
28
U.
S.
C.
§§723-b,
723-c,
now
§2072.
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