Equity Without Chancery: The Fusion of Law and Equity in the Field Code of Civil Procedure, New York 1846-76

The Journal of Legal History, Vol. 36, No. 2 (2015): 152-191

58 Pages Posted: 30 Apr 2015 Last revised: 16 Sep 2015

Kellen Funk

Columbia Law School

Date Written: April 28, 2015

Abstract

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.

Keywords: civil procedure, legal practice, field code, legislation

JEL Classification: K41, N81, K40

Suggested Citation

Funk, Kellen, Equity Without Chancery: The Fusion of Law and Equity in the Field Code of Civil Procedure, New York 1846-76 (April 28, 2015). The Journal of Legal History, Vol. 36, No. 2 (2015): 152-191. Available at SSRN: https://ssrn.com/abstract=2600201

Kellen Funk (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10009

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