The Lawyers' Code: The Transformation of American Legal Practice, 1828-1938

Abstract

During the nineteenth century, U.S. legal practice departed from its common law origins and adopted its modern form. This transformation centered on the 1848 New York Code of Civil Procedure, known as the Field Code. The code declared the common law forms of action abolished and the separate traditions of law and equity united. It ended the public regulation of lawyers’ fees and made parties competent to take the oath in their own causes. By 1938, over thirty jurisdictions had copied the code, which became the basis for federal practice as well.

Jurists and academic commentators since then have grappled with the apparent failure of the code to achieve its aims. Common law formalisms persisted, and a vast body of case law adapted the code to traditional practices rather than accept it as the novel reconstruction it professed to be. The standard narrative of American codification declares the modern rationalization of the common law an inevitable development, yet finds it was successfully resisted by a conservative bar that merely tinkered with procedure to subvert real, substantive reform until the progressivism of the twentieth century.

By exploring the legal, political, and cultural context of the code—with assistance from digital textual analysis—this study shows how the politically contingent development of the code created the very concept of “civil procedure” and cast it as a benign field of legislative experimentation. But even the most reformist codifiers inadvertently imported their old habits of thought and practice, causing their code to revoke its own transformative measures. In the way it accounts for the path dependencies of the law, this study presents law reform not as the selection of one path among many possibilities, but as a set of possibilities whose boundaries and constraints have already come pre-determined by a practical legal tradition. The Field Code—and the modern American practice it created—became the lawyers’ code, not just because lawyers controlled its political fortunes and benefited from its enactment, but also because its silences and inconsistencies could be filled only by the American bar’s inherited practices.