The Feigned Issue in the Federal System
Stephen E. Sachs
Duke University School of Law
November 26, 2007
This paper explores the history and doctrinal implications of a now-obscure procedural device, the feigned issue, in the U.S. federal judiciary. The feigned issue was first developed in England, as a tool of the Chancery to resolve a single factual issue through a jury trial at common law. The procedure took the form of an action at law based on false declarations in the pleadings, usually concerning a fictitious wager, and was commonly used in American state and federal courts until the mid-nineteenth century.
Because the federal judiciary has never employed separate courts of law and equity - the institutional division that gave birth to the feigned issue in England - this essay seeks to explain how and why the feigned issue survived in the federal system, and why the procedure disappeared when it did. Today, feigned issue has become a term of legal opprobrium that signifies a false case, an effort to deceive the court or to evade the jurisdictional standing requirements of Article III. The essay identifies three potential reasons for this change.
The first was an evolution of the substantive law of wagering at the state level. Once wagering contracts in general were no longer enforceable, the feigned issue became regarded as more of an anachronism than a legitimate judicial procedure.
The second was a change in equity practice. Because an equity court awarding a feigned issue could also order alterations in the procedures or evidentiary rules of the common-law trial - in particular, the testimonial disqualification of parties for interest - the procedure served as a flexible tool of introducing oral evidence into equity practice, as well as an early form of case-by-case fusion of law and equity. As oral evidence and cross-examination began to enter equity practice generally, the need for the feigned issue as an evidentiary tool diminished substantially.
The third and final factor was the advent of fusion in the state systems. While this process did not affect the federal courts directly, it did introduce an alternative to the feigned issue, namely the simple empanelling of an advisory jury. Once the state systems eschewed fictions in favor of direct orders for a jury trial, the federal courts began to follow suit, even while retaining the older terminology of the feigned issue.
working papers series
Date posted: November 27, 2007
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