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The decision of the Supreme Court of the United States to unite the. law and equity procedures in the federal district courts, pursuant to authority granted by a recent congressional act, is anevent of historic significance for its effect both on law administration in our national judicial system and as an example for other systems. When the new procedure is made effective by rules now being formulated, it will bring about more extensive changes in the federal practice than any that have occurred since the First Judiciary Act of 1789. Obviously not all the consequences can now be foreseen, but with care and study the difficulties of the transition can be minimized and a flexible practice developed which will reflect the best of the English and state codes and rules. The chief problems involved in a complete union of law and equity concern the preservation of the jury trial right as required by the Seventh Amendment of the Constitution. It is believed, however, as discussed elsewhere, that a simple and effective system is possible by requiring the claim of the right to be made at an early stage of the proceedings in each case or otherwise to be considered waived. A similar problem, although perhaps not of quite the same permeating importance, is that of the manner of appeal and the extent of review to be accorded by the court of review. Traditionally, and for historical reasons, the equity review is a re-examination of the entire record, on both the facts and the law, while that at law is limited to a consideration of the legal errors which may have been committed by the trial court. If this difference on appeal is to be continued even after a formally united procedure is adopted, it means that the ancient and troublesome distinctions between law and equity, though supposedly abolished in the trial court, are yet to be preserved for purposes of appeal. It has seemed clear, therefore, that some change in those rules is necessary, and the conclusion to that effect by the Advisory Committee on Rules for Civil Procedure, appointed by the Court to assist it in the preparation of rules of practice, seems to have met with general approval.
Date of Authorship for this Version
Book Review: Review of Findings of Fact (with Ferdinand F. Stone), 4 University of Chicago Law Review 190 (1937)