When I was in law school, I was troubled that my civil procedure professor kept telling us that the Federal Rules of Civil Procedure (“the Federal Rules”), which govern how non-criminal cases are processed in all federal trial courts, were the most enlightened procedural code on the planet. But we were not told a word about how or why they became law in 1938. It was as if these rules descended full blown from heaven.
Frustration can be an impetus for inquiry. Upon becoming a law professor in 1970, I have spent much of my professional life trying to figure out the historical background of procedural rules – who wants and benefits from procedural change and how do they achieve procedural reform. And so I wrote the historical background of the Federal Rules and the mid-nineteenth century Field Code (that provided rules for civil cases for over half of the citizens in the country).
With the invaluable help of my former student and frequent co-author, Thom Main ‘94, who now teaches at the William S. Boyd School of Law, U. of Nevada, Law Vegas, and countless NUSL students, I have been working on the historical background of current American civil procedure. We call this “The Fourth Era of American Civil Procedure.”