Tuesday, June 23, 2015
Forthcoming in the Journal of Legal History is an article by Princeton Ph.D. candidate Kellen Funk entitled Equity Without Chancery: The Fusion of Law and Equity in the Field Code of Civil Procedure, New York 1846-76.
The Field Code of Civil Procedure — enacted in New York in 1848 and adopted by a majority of American jurisdictions thereafter — helped develop the modern American trial and influenced law reform in England. Leading accounts of the Code, however, ignore nineteenth-century New York practice which spurred its development, particularly the problems of fusing the separate systems of common law and equity. This Article recovers that context and shows that despite scholarly claims to the contrary, the Code’s drafters mainly sought to extend New York’s equitable procedures to all civil cases. They expected, however, that equitable remedies and procedures could be divorced from the structures of chancery. In the Code, a paradigm of substantive rights and procedural remedies replaced the old division between law and equity. David Dudley Field’s influential theory of fusion thus sought to expand the practice of equity, but without the courts of equity.