Kellen Funk, ‘The Union of Law and Equity: The United States, 1800-1983’

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.

Funk, Kellen, The Union of Law and Equity: The United States, 1800-1983 (December 31, 2019). Law and Equity: Fusion and Fission (Cambridge), 2020.

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