Please cite to the original publication
Dean Gavit's spirited criticisms in the December number of this Review of my discussions of the code cause of action seem to require some comments from me. I make them, however, with considerable misgivings. My purpose in my consideration of this procedural concept was to debunk it, to give it a rationalization which would make it useful and prevent it from being an arbitrary limitation on wise administrative discretion in the control of litigation. Unfortunately the articles which I have thus provoked have, I fear, quite the opposite effect, if not purpose. The issues may be thus summarized. With the abolition of the forms of action in modern pleading, some substitute unit of judicial action was necessary, and this was found by code makers and courts in making use of the phrase, the cause of action, the meaning of which was rather assumed than made explicit. Following one group of commentators and what I thought the better reasoned judicial view, I have identified the cause as a group or aggregate of operative facts giving ground or occasion for judicial action, and I suggested that the extent of a single cause, where not already indicated by past precedents, should be determined pragmatically by trial convenience, having regard to the way in which lay witnesses would present testimony of past happenings in court. Such rationalization, thoroughly supported in the announced plans of the codifiers and in the case law, permits of a highly desirable flexibility in court administration. My critics, while differing among themselves greatly as to details, generally identify the single cause with some single legal right, which is then defined and isolated from other rights by some indefinite general descriptive adjective such as "primary" or "substantive". An attempt to read meaning into this vague concept then leads to an attempt to define rights historically and thus in turn brings us inevitably back to the forms of action which will truly, as Maitland stated, "rule us from their graves". This result, so shocking to all interested in a modern rational pleading system dealing with twentieth and not thirteenth century problems, deserves some analysis.
Date of Authorship for this Version
The Cause of Action, 82 University of Pennsylvania Law Review 354 (1934)