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The recent reforms of procedure in the federal courts are unique not merely be- cause of their advanced features, but also because they were professional reforms accomplished under professional auspices. This fact would not seem strange, did we not recall that in the past such changes have been forced upon the profession either by aroused lay feeling or by the determined sponsorship of some lone leader or by both. The century-long struggle in England, where the names of Bentham and Dickens figure so prominently, was largely lay-inspired. In American code reform-the foundation for modern civil procedure in England and America-the name of David Dudley Field towers in lonely eminence. His accomplishment, indeed, seems almost a tour de force, so quickly was it achieved; but then it had to run the gauntlet of court adjudication and unfortunate emasculation. In the classic statement of Chief Justice Winslow of Wisconsin, "The cold, not to say inhuman, treatment which the infant Code received from the New York judges is matter of history." Lawyers look to precedent and to the past; the habit of violent reaction against change is too firmly ingrained not to be recognized as a natural condition of procedural reform. But it is still possible for the profession to supply both effective leadership and expert execution of such projects. This was recognized by the leading figures of the American bar who conducted the long doubtful, but ultimately successful, campaign for court rule-making in the federal courts. And the reforms when secured now stand as successful models of practice systems developed by professional efforts and according to professional standards. This achievement, therefore, is an event in American judicial history. Interest in it in the states, with a view to its possible emulation, makes desirable some account of the way it occurred, and the teachings it may offer for other attempts.
Date of Authorship for this Version
The Influence of Federal Procedural Reform, 13 Law and Contemporary Problems 144 (1948)