Early federal and state civil procedure in the United States was rather
ad hoc and was based on traditional common law procedure but with much local variety. There were varying rules that governed different types of civil cases such as "actions" at law or "suits" in
equity or in admiralty; these differences grew from the history of "law" and "equity" as separate court systems in English law. Even worse, discovery was generally unavailable in actions at law. In order to obtain discovery, a party to a legal action had to bring a collateral proceeding, a bill in equity in aid of discovery, just to obtain essential documents or testimony from the opposing party. Procedure in the early federal courts was notoriously incoherent, and such incoherence persisted for almost 150 years. The Process Act of 1792 authorized the federal courts to write their own procedural rules for
everything but actions at law. In the context of actions at law, the earlier Process Act of 1789 was so poorly written that it forced a federal court sitting in a state to apply the common law rules of pleading and procedure that were in effect in the state
at the time it joined the Union, regardless of whether the state had modified or revised its civil procedure system since. In other words, even though a state's common law pleading system was always constantly evolving through
case law, the federal courts in that state were frozen in time (a concept now known as "static conformity"). The Process Acts of 1789 and 1792 did not expressly address the problem of what procedural laws to apply in the federal courts in new states that joined the Union after the original Thirteen Colonies. In 1828, Congress enacted a law which stated that such courts would follow the civil procedure in effect at the time those states joined the Union. Unfortunately for the federal courts, state civil procedure law began to diverge dramatically in the mid-19th century. In the 1840s, the law reformer
David Dudley Field II launched a movement away from common law pleading and towards what came to be called "code pleading." Common law pleading operated under
ad hoc procedures that developed haphazardly through
case law—the
forms of action. In other words, a particular procedure was followed just because some (often ancient) decision said so, but none of those decisions were looking at whether the entire procedural system made sense. Because the evolution of the forms of action was severely limited by the
Provisions of Oxford (1258), pleaders had to resort to awkward workarounds such as
legal fictions which had become quite ludicrous by the 19th century. Legal fictions served only to obscure rather than illuminate what was truly at issue between the parties. For example, the traditional form of action for
trover was originally intended for
finders, keepers situations (i.e., the plaintiff accidentally lost some property, then the defendant found it and wrongfully kept it), but was gradually expanded to many other kinds of improper takings of others' property—which are now known as
conversion. Thus, in an action for trover, "a plaintiff was expected to allege the casual loss and finding of, say, a thousand tons of
pig-iron". In contrast, code pleading was supposed to be carefully designed, at least in theory, with the entire lifecycle of a case in mind so that it would be simple, elegant, and logical, and was implemented by the enacting of a "code of civil procedure" by the state legislature. At common law, procedure came first and substance came second; code pleading flipped those priorities around and focused on the
cause of action. By 1897, 27 states had enacted versions of the Field Code. As of that same year, common law pleading despite extensive statutory modifications remained the dominant procedure in 13 states, the Territory of New Mexico, and the District of Columbia. Field is also credited with developing the very idea of "civil procedure" in
American English, as referring to a single body of law governing the entire lifecycle of a civil action. Before him, an earlier generation of American lawyers like
Joseph Story had always conceived of "pleading" and "practice" as two separate but related bodies of procedural law. In response, Congress finally enacted the Conformity Act of 1872, which directed federal courts to conform their procedure in such actions to the
current practice in the states in which they were sitting (i.e., "dynamic conformity"). The inevitable result was confusion and chaos in the federal courts, particularly as
interstate commerce escalated with the
Second Industrial Revolution and an increasing number of cases between citizens of different states were heard in federal courts under
diversity jurisdiction. The glaring deficiencies in the Conformity Act, especially the assumption that a federal court would always sit in a U.S. state, caused severe problems in extraterritorial federal courts such as the
United States Court for China.
Reform in the 1930s Frustration with the
status quo caused the
American Bar Association to launch a nationwide movement for reform of federal civil procedure in 1911. After years of bitter infighting within the American bench and bar, the federal procedural reform movement culminated in the enactment of the
Rules Enabling Act on June 19, 1934. The Supreme Court at first took little interest in exercising the new powers granted to the Court by the Act. Then in January 1935,
Charles Edward Clark, the dean of
Yale Law School, published an article arguing that federal procedural reform had to include a full merger of law and equity, as had occurred in many code pleading states. The Supreme Court appointed an Advisory Committee to draft what would become the
Federal Rules of Civil Procedure (FRCP) on June 3, 1935. Mitchell was appointed as the Advisory Committee's first chairman (a position he would hold until his death in 1955) and Clark was appointed as the Committee's Reporter. Other prominent persons who were appointed later to the Advisory Committee included
George W. Pepper,
Samuel Marion Driver, and
Maynard Pirsig. The third report was the final one, which the U.S. Supreme Court reviewed, revised, and adopted on December 20, 1937. There was significant opposition to the new rules in Congress and hearings were held by both House and Senate committees, but the Rules Enabling Act required Congress to affirmatively override the Supreme Court's adoption of rules pursuant to the Act. Congress recessed in June 1938 with neither house having taken a floor vote on the issue, and accordingly, the FRCP automatically went into effect on September 16, 1938. The Rules unified law and equity and replaced common law and code pleading with a uniform system of modern notice pleading in
all federal courts. There are exceptions to the types of cases that the FRCP now control but they are few in number and somewhat esoteric (e.g., "
prize proceedings in
admiralty"). The FRCP drafters were heavily influenced by the elegance of civil procedure in certain code pleading states, particularly
California and
Minnesota. However, the FRCP went to a new system now called "notice pleading," based on the idea that a complaint should merely give "notice" that the defendant is being sued, and allow the plaintiff to use the machinery of the courts to compel discovery of evidence from the defendant which would help the plaintiff prove his case. And of course, the defendant could compel discovery of evidence from the plaintiff to support his defenses.
Modern The ABA and numerous other groups lobbied for some kind of committee to take over the task of maintaining the FRCP and other federal procedural rules. In 1958, Congress amended the act creating the
Judicial Conference of the United States so that it would have the power to advise the Supreme Court about revisions to procedural rules. The initial members of the
Advisory Committee on Civil Rules were appointed in April 1960; since then, that committee has been in charge of drafting revisions to the FRCP. ==Federal and state procedural uniformity==