Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

Throughout the formative years of the common law, the rules of civil procedure played a crucial role in the development of the substantive rules of law. Thus, the common law provided a distinct form of action for each kind of wrong and specified complex rules-some of general and some of particular application-for the elaboration of a case within the framework of its appropriate form. The forms of action have been abolished, as have most of the arcane rules of pleading that were so congenial to them. The rules of pleading today retain some of their original importance to the ordinary lawsuit, but their role is more modest. Under the most common view the pleadings are intended only to give to the adversary and the court "notice," in a general way, of the kinds of contentions that the pleader is apt to make on his own behalf. They are not designed to bind the pleader to a particular theory of claim or defense, nor to a particular means of proving his contentions. With the pleadings thus restricted to a notice function, the modem law instead draws upon an extensive arsenal of pre-trial devices to help determine the truth and the worth of the contentions raised by the parties to a legal dispute. In one sense the shift is a healthy one because it helps insure that a lawsuit will be decided on its merits, and not by the procedural slips and errors that occur in the course of a lawsuit. Nonetheless, I think that the shift in emphasis has gone too far, and that many of the prized modem reforms may be mistaken and ill-advised. Formal pleadings may not be the best devices for fleshing out the facts of a case; but facts alone do not permit the articulation of the general propositions of substantive law, the theories of claim and defense needed for the principled resolution of disputes. It is to this task of theory formation that the pleadings can make their contribution. The rules of pleading cannot by themselves determine the applicable rules of substantive law, but a set of rules that details the formal constraints on legal argument could help to shape the substantive inquiry in a manner that would aid the development of theories capable of both particular application and further elaboration. If the rules of pleading are understood as means of delineating the distinctive features of a legal argument, then there is much in the older systems of pleading that merits attention even after the abolition of the forms of actions.

First Page

556

DOI

https://doi.org/10.2307/1599248

Volume

40

Publication Date

1973

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