Please cite to the original publication
"Although I agree," said Collins, M. R., in a leading English case, "that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of a handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case." Sentiments such as these, when expressed as abstract propositions, will no doubt win the assent of all. Applied to concrete cases, however, there is danger that by a conservative bench and bar they may be more honored in the breach than in the observance. The learned judge's homely simile might be carried further. A handmaid, no matter how devoted, seems never averse to becoming mistress of a household should opportunity offer. Just so do rules of procedure tend to assume a too obtrusive place in the attentions of judges and lawyers--unless, indeed, they are continually restricted to their proper and subordinate role. Now, at a time when at last there has been brought substantially to fruition in our national courts a significant reform, involving the due subordination of civil procedure to the ends of substantive justice, through the adoption of the new Federal Rules of Civil Procedure, it may be appropriate to examine this continuing conflict between substance and form and to consider how it has there been resolved.
Date of Authorship for this Version
The Handmaid of Justice, 23 Washington University Law Quarterly 297 (1938)