Incorporation by Reference: Requiem for a Useless Tradition
56 Pages Posted: 23 Jan 2019 Last revised: 15 Jan 2020
Date Written: February 22, 2019
American lawyers mechanically introduce each count in a pleading with the talismanic clause of “repeat and reallege” everything said before. It is a useless recitation cluttering complaints, answers, and indictments; it has no purpose, makes no sense, and is not used in any other legal system in the world. This medieval practice made sense in the formalistic common-law pleading of the sixteenth century but has no place in modern pleadings.
This article traces the practice to a 1591 Queen’s Bench opinion, and follows its evolution from English common law to American common-law pleading to American code pleading to the Federal Rules of Civil Procedure. It explains how this useless tradition survived logic and common sense, and why it should have been abolished a century ago. It concludes that it is an empty tradition with no basis in the law.
What was once the law, became a tradition, and today is merely a tic of insecure lawyers.
Note: Comments are welcome until January 31st, 2018.
Keywords: incorporation by reference, common law pleading, code pleading, pleading, repeat and reallege
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