The Influence of History on Procedure: Volumes of Logic, Scant Pages of History


Linda S Mullenix

Ohio State Law Journal 803


Many civil procedure teachers who pause to contemplate pre-1938 procedure are not unlike fifteenth-century sailors who contemplated a voyage across the seas. There is this palpable but nonetheless terrifying sense of coming to the very edge of the known universe, a point beyond which, as all sage souls realize, one falls into a dark, abysmal void. And so, not unlike most happy fifteenth-century sailors, many procedure teachers are quite content to hug the safe and familiar shores of the known procedural map.

Thus, not a few academicians have the same sense of pre-Federal Rules procedure that ancient sailors had of the Indian subcontinent: as something distant, substantial, ancient, quaint, and vague. And not unlike medieval tales of exotic lands, pre-1938 procedural history has assumed elements of myth, allegory, and uncertain lore, as the safe sailors repeat what little they have heard from fellow travelers like themselves.

This Article is, for lack of a better word, a rumination on the importance of being historical for proceduralists. So self-evident a proposition seems embarrassing to assert; yet it is a concept now so much out of vogue, so academically déclassé, as to require reaffirmation. How it is that history and its enthusiasts have suffered such shabby patronization is no doubt an interesting subject in itself, but it is an inquiry beyond the intellectual compass of this more modest essay. History is important to proceduralists for reasons that are both obvious and subtle. The Federal Rules of Civil Procedure, accomplishing the merger of law and equity, require some knowledge and understanding of those two antecedent systems.

The rulemaking history of the Federal Rules is important for understanding the basis and nature of rule reform, including the problems that required remedial solution and the thinking that went into rule amendment and revision. Certain procedural questions such as the right to trial by jury, interlocutory appeal, and alternative remedies require historical knowledge to apply the rules themselves.

But beyond the very apparent utilitarian uses of history in procedure, historical understanding is important for other reasons. Doctrinal history of procedural problems assists in broadening contemporary understanding of procedure. Thus, the current debate over individual versus aggregate procedure is enriched by research that suggests that theories of aggregate procedural justice are both ancient and not unusual. Research into the history of personal jurisdiction provides bases for understanding the juridical relationship between the individual and the state that are independent of modern due process concepts. Historical research into the merger of law and equity has focused attention on the primacy of equitable solutions to procedural issues, suggesting further debate concerning the consequences of this historical evolution.

Furthermore, for the procedure teacher, pedagogical responsibilities require not only knowledge of procedural history, but transmission of that history to students at an early stage in their legal education. Unless the procedure teacher undertakes to impart some historical content to issues and problems, the law student is unlikely to acquire this basic historical framework except in a discrete course in legal history or jurisprudence. Thus, the procedure teacher has the burden of setting the stage for the law student's broader encounters with the law. Much of the substantive law that first year students examine is imbued with procedural implications; the procedure teacher carries the heavy responsibility of placing both substance and procedure in a historical context that suggests the richness, value, and importance of that history.

This Article explores the influence of history on procedure and the efforts that procedural scholars are making to impart some historical dimension to writing on procedural topics. Part Two outlines the views of other proceduralists on the importance of historical understanding. Part Three revisits a twenty-five year-old study by Professor Hazard on the state of civil procedure scholarship. That study found little historical research being done on procedural issues, and it provides the framework for an assessment of contemporary efforts in research on the history of procedure, contained in Part Four. Part Five briefly discusses the major contemporary challenge raised by metaproceduralists to the historical, traditional approach to civil procedure. Finally, the Article concludes with some observations on the fine work currently being done in historical research on procedure and the opportunities for continued projects.

Full Citation

Linda S. Mullenix, The Influence of History on Procedure: Volumes of Logic, Scant Pages of History, 50 Ohio State Law Journal 803 (1990).