The Union of Law and Equity: The United States, 1800-1938

Law and Equity: Fusion and Fission (Cambridge), 2020

24 Pages Posted: 21 Feb 2020 Last revised: 12 Mar 2020

See all articles by Kellen Funk

Kellen Funk

Columbia University - Law School

Date Written: December 31, 2019

Abstract

From the colonial era to the present day, a number of jurisdictions in the United States have purported to fuse the disparate systems of common law and equity. This chapter focuses on the intellectual history of fusion from the 1848 Field Code to the 1938 Federal Rules. The New York corporate lawyer David Dudley Field and his fellow codifiers sought to replace the distinction between law and equity as the fundamental organizing principle of the law with the distinction between substance and procedure. They believed most of the distinction between law and equity inhered in institutions and procedures and would therefore disappear the moment a statute erected a single court with uniform proceedings. Their vision was shared by the architects of the federal procedure code a generation later. In practice, however, fusion remained far less complete than Field predicted or American lawyers commonly believe. The essay illustrates the dramatic fissions that remained in Field’s own post-fusion practice in 1870s New York.

Suggested Citation

Funk, Kellen, The Union of Law and Equity: The United States, 1800-1938 (December 31, 2019). Law and Equity: Fusion and Fission (Cambridge), 2020, Available at SSRN: https://ssrn.com/abstract=3525155

Kellen Funk (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

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