THE RULE-MAKING POWER OF THE COURTS

Author(s): Roscoe Pound

Source: American Bar Association Journal, Vol. 12, No. 9 (SEPTEMBER, 1926), pp. 599-603
Published by: American Bar Association
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 THE RULE-MAKING POWER OF THE COURTS

Historical Reasons for America's Commitment for a Season to Habitual Legislative Interfer
ence With Procedure?Relation of Rule-Making Power of Common Law Courts to
American Constitutional Principle of Separation of Powers?Advantages of
Regulation of Procedure by Rules of Court?Study of Rule-Making
Power in Action Fails to Disclose Any Disadvantages?-Change
in Present Methods Predicted

By Roscoe Pound
Deem of Law School, Harvard University

IN England regulation of procedure in the superior by practice, by judicial promulgation or by legisla

courts of law and equity has gone through four tive declaration, as the case might be. But from
stages. In the first stage procedure is governed the time of the Tudors new ideas came in. The
wholly by the custom of the tribunal. In a second medieval theory of search for the law gave way to
stage, when the customary procedure has become Roman ideas of making law. Ideas of sovereignty
fixed and settled, changes and improvements come
drawn from the Corpus Juris and developed by the
to be made and details come to be provided for by
rules of court. In a third stage legislation takes rise of nationalism and the growth of strong central
the matter in hand. Parliament makes sweeping governments, led in England to conflicts between
changes both in fundamentals and in detail. For the Crown and Parliament. Sir Edward Coke,
a season legislation is called on to bear the brunt the oracle of the common law, took the side of
of procedural reform. Finally, in a fourth stage, Parliament and argued for what was to become
since 1873, the English have returned to regulation parliamentary sovereignty. In England, after the
of procedure by rules of court, which has proved revolution of 1688, Parliament was decisively domi
effective and satisfactory for more than half a nant. In the United States, one must admit, by
century. deviation from seventeenth-century England, we
How did it happen that in England legislative took a different course. By constitutional pro
prescribing of the details of procedure for a time visions for the separation of powers and by bills of
superseded exercise of the rule-making power of rights, we put checks on the legislative as well as
the courts and that in the United States, without upon the executive. It is quite impossible to under
ever having tried the rule-making power, as a means stand American public law unless one bears in
of adapting the over-refined eighteenth-century mind that we derive, not from the English parlia
English procedure to our needs, we committed our mentary polity of today, but from the polity of
selves thoroughly for a season to habitual legisla Tudor and Stuart England. Nevertheless, ideas of
tive interference with what ought to be left to the legislative supremacy and uncontrolled law mak
courts? I suppose there are four reasons, each of ing power were in the air and in the books when
which is worth looking into in some detail. our institutions were formative. Moreover, there
In the first place, the movement for reform of Was a palpable legislative hegemony in this country
procedure, both in England and in America, down to the time of the Civil War, the last echoes of
brought on by way of reaction from the cumbrous, which may be found in the speeches of the senators
dilatory, expensive, ultra-formal procedure of the at the impeachment of Andrew Johnspn. Down to
eighteenth century, came as part of the legislative the Civil War, the legislative department con
reform movement that was one of the outstanding sidered that it represented the people immediately
features of Anglo-American legal history in the and to a peculiar degree. It conceived that it
nineteenth century. It is true there had been legis wielded the general powers of the sovereign people
lation on procedure extending back to the law mak directly and immediately. Hence, it was prone to
ing activity of Edward I. But the regular resort to assume that whatever the sovereign people could
legislation as a means of governing procedure in do, by virtue of their sovereignty, they could do
the courts begins in England after 1688 and is at through legislation. It was not until after the Civil
its height during the legislative reform movement War that judicial enforcement of constitutional
in the nineteenth century. limitations on legislation. became an every-day
Medieval legislation proceeded on ideas funda matter. Prior to that time, there had been need of
mentally distinct from those which are presupposed judicial enforcement of the constitutional precepts
by legislation today. It was taken to be declaratory defining the respective limits of federal and state
of custom. Thus the customary procedure that legislation. But a general tendency to question
had grown up in the courts, the details fixed by legislative omnicompetence comes with the passing
rule of court, arid the procedure prescribed by of the de. facto leadership of the legislative depart
statute, were supposed to rest on the same basis. ment, which took place in the last third of the last
In each case there was an ascertainment of custom; century.
Thus, both in England and in America, the
Address delivered before Conference of Bar Association Delegates
at meeting of that section at the recent annual meeting of the American nineteenth-century overhauling of procedure took
Bar Association at Denver, Colo. place at a time when men turned naturally to the
599

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 600 American Bar Association Journal

legislature to take the lead in all things. It took at Story's treatises, in order to see to how large an
place at a time when the legislative department did extent Comparative Law helped give form and
not doubt its competence to every sort of task. It supplied content to American law in its formative
took place when there had come to be a long tra period.
dition of parliamentary sovereignty in England and Comparative law had chief influence in com
the de facto hegemony of the legislative in America mercial law, where the Continental treatises were
was unchallenged. Naturally when common-law truly quarries for American judges and law teachers
procedure had to give way to a simpler, more flex and law writers. From commercial law its in
ible, less formal system, men appealed to the legis fluence spread over the whole civil side of the law.
lature. So far as men could see at that time, such Moreover, both in commercial law and on the civil
was the appropriate solution of all political and side of the law generally, a parallel judicial develop
legal difficulties. ment was going on in England. At the Revolution
A second reason, is to be found in the over Lord Mansfield was still upon the bench. The
absorption of the law merchant into the common
conservatism of the legal profession both in Eng
land and in America at the close of the first half of law was still incomplete and the crystallization of
equity under Lord Eldon was yet to come. Kent
trie nineteenth century. It is not easy for this gen and Story in this country had much to do both with
eration, to whom the changes wrought by the the reception of the law merchant and with putting
legislative reform movement of the last century the doctrines of English equity in their classical
pass for fundamentals of the legal order?it is not form. This resource failed us in procedure. There
easy for us to realize how those changes were re was nothing for us in Continental procedure. In
garded by the leaders of the profession at that time. deed, the Continental procedure of that time needed
A lawyer who looked back on the whole forty-five overhauling quite as much as English procedure.
years of agitation and legislation that culminated Moreover, it was not adapted nor was it adaptable
in the Judicature Act, could not refrain from ex to our judicial organization and judicial and for
pressing his astonishment at the loathing with ensic methods. The Anglicizing of procedure that
which he had been brought up to regard those who has gone on in Louisiana may serve to show why
took the lead in 1828. There is an impressive lesson it was that American lawyers of the formative era
for us in what leaders of the New York bar had to of our legal institutions derived nothing from pro
say about reform of procedure in 1847 and 1848. cedure of the civil law. While civilians are quoted
Demonstrably many unhappy features of the New on every hand in connection with problems of sub
York Code of Civil Procedure are traceable to re stantive law, they are never quoted in connection
fusal of the strongest men in the profession to take with questions of procedure except by way of
part in a change that had to come; to their per pedantic display of learning. Nor could we derive
sistent resistance where they might and should much from parallel development of the law of pro
have guided the reform and given it stability and cedure in England. During the long struggle for
assured direction. They left to legislation what the reorganization of the judicial system and reform of
courts should have done and might have done by procedure, from 1828 to 1873, England regularly
applying to procedure the same creative resource had recourse to legislation. The creative judicial
and inventive power which they displayed so not decisions, that were of such use to American judges
ably in reshaping English substantive law to make during the formative era, were rendered in equity,
a common law for America. in commercial law, or on new questions of substan
Perhaps it would have been too much to expect tive law on its civil side. They were rarely rend
the courts to take both substantive law and pro ered on points of practice because English lawyers
cedure in hand at the same time. The development were learning to leave such things to the legislature,
of an American common law, adequate to the needs expecting judges to deal vigorously with new ques
of the pioneer, rural, agricultural society of the last tions of substantive law as they arose, but expect
century and equal to the demands of forty-eight ing the means of giving effect to the substantive
states of the most diverse geographical, economic, law to stand fast forever. Thus down to 1873 Eng
racial, and social conditions,?the development of land set us a bad example. After 1873 we had fol
such a common law, chiefly on the basis of the Eng lowed that example not wisely but too well, and
lish decisions and English statutes of the seven had become set in bad ways.
teenth century, in seventy-five years of judicial A fourth reason, and not the least reason, for
activity after the Revolution, is one of the marvels our hitherto settled practice of committing the de
of legal history. Moreover, and this must stand tails of procedure to legislation may be found in the
for our third reason, our courts had no such models sort of legal education that prevailed in the United
at hand for remaking procedure as they had for the States until the present generation. In the be
finding and reshaping of commercial law and for ginning all common-law lawyers were apprentice
the development of the. substantive civil side of the trained. The lawyer learned the art of his craft as
law. We should remember that comparative law any craftsman learns his trade, by watching his
was no mean factor in the making of an American elders and seeing how they did things, and doing
common law. It is not merely that our courts the like. The first American law schools were
worked with English materials under the conditions simply glorified law offices and their methods and
of the new world. The theory of the time took all modes of thought have colored the work of our law
positive law to be declaratory of a universal, ideal, schools of today. Moreover, this apprentice train
natural law. Other peoples had reason as well as ing- has persisted in many parts of the country.
the English. Indeed, on political grounds, Ameri Wherever the simple conditions of rural, pioneer,
cans after the Revolution were by no means in agricultural America of one hundred years ago still
clined to attribute ultimate wisdom to the common obtain, a large part, perhaps the larger part, of
law of England. One need only look at the older those who come to the bar are still trained in this
reports in New York, at Kent's Commentaries, or way. This apprentice training is before all else a

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 The Rule-Making Power of the Courts 601

training in the details of local procedure; some tions were adopted. You will find there general
rules of practice, some of which go back as far as
thing that has characterised our law since the middle
of the last century, reaching its high water mark Richard II, many as far as the Tudors, and several
in the last decade of that century. So long as the as far as the first years of James I, from which we
majority of the profession feel or assume that pro date the reception of the common law in this
cedure is the main department of the law, so long country.
as they are prone to think in terms of procedure Hence, if anything was received from England
rather than of substantive law, it will be natural as a part of our institutions, it was that the making
for them to feel that procedure must be left to legis of these general rules of practice was a judicial
lation, if the separation of powers is to be main function. Indeed, this was well understood in the
tained and the substantive law is to be under the beginning of American law. At the very outset,
control of the legislative department. the Supreme Court of the United States, in answer
to an inquiry by the Attorney General, said that the
Thus we come to the question of constitution
practice of the court of King's Bench would obtain
ality which every new departure in American law for the time being, but that presently the court
must expect to face. In this connection, it may would promulgate some rules of practice. Not only
console us when we observe that eminent lawyers was this done by the Supreme Court of the United
and one strong judge declared the New York Code States, but the old Supreme Court of New York,
of Civil Procedure unconstitutional as infringing a before 1847, promulgated rules of practice, very
constitutional recognition of law and equity as for many of which were simply turned into sections of
ever and of necessity separate and distinct. But the Code of Civil Procedure and are in force under
the relation of the rule-making power of common that guise today.
law courts to the separation of powers, universally But, some will say, granting that such a power
recognized or set up in American constitutions, might exist in a supreme court, with respect to
deserves careful consideration. practice in that court, how far could such a tribunal
In truth procedure of courts is something that constitutionally provide rules for subordinate courts
belongs to the courts rather than to the legislature, which are likewise constitutional? Here again the
whether we look at the subject analytically or his historical argument is decisive. At the time our
torically. It is a misfortune that the courts ever constitutions were adopted, the power to prescribe
gave it up. Analytically, there is no more warrant rules of practice for the nisi prius courts was an
for the legislature's imposing a strait-jacket of immemorial power of the superior courts at West
statutory procedure upon the courts than for its minster. The courts of assize and nisi prius were
doing the like with the executive: No one supposes independent courts. Yet the practice in both was
that the courts can impose their general ideas of governed by general rules made by the courts at
fitness and propriety upon legislative procedure or Westminster which had authority to review their
executive procedure. Nor would the idea that the proceedings. Indeed, we have good American pre
minutiae of judicial procedure can be laid down by cedent for this argument. In Ohio the probate
legislators have taken root had it not been for the court is a constitutional court. In that state a
" rule-of-thumb apprentice training of the bulk of the statute provided that the Supreme Court might pre
profession, which led them to feel that the whole scribe rules of practice governing the probate
of the law was bound up in procedure and hence courts. That statute was upheld because historic
that the legislature must prescribe judicial pro ally the power of the court of review to promulgate
cedure or abdicate control over the law. Historic rules of practice for tribunals of first instance had
ally the matter is even more clear. For the com always been a judicial power.
mon-law courts have governed procedure by general It is a misfortune that American courts ever
rules from the middle ages to the present, and the gave up their control of procedure. It may be that
first public action of the Supreme Court of the today, after seventy-five years of codes and practice
United States was to make a rule adopting the acts and prolific procedural legislation, we can't go
practice of the Court of King's bench as the practice so far as to pronounce such legislative interference
of that tribunal. with the operations of a coordinate department to
How do we determine what is executive, what be unconstitutional. Perhaps the ground is so far
is legislative and what is judicial? In practice, the debatable that the courts could not have resisted
lines are laid out as a resultant of history and an legislative annexation of that domain. Today, pos
alysis. In doubtful cases, however, we employ a sibly, we must .concede that the legislature may
historical criterion. We ask whether, at the time enact codes of procedure and detailed practice acts.
our constitutions were adopted, the power in ques Equally, however, we should insist that the legisla
tion was exercised by the Crown, by Parliament, or ture ought not to do such things, not merely on
by the judges. Unless analysis compels us to say grounds of expediency and for the sake of a better
in a given case that there is a historical anomaly, and more effective administration of justice, but as
we are guided chiefly by the historical criterion. a matter of due regard for the constitutional system
When American constitutions were adopted, of separation of powers. None of the coordinate
the power to make general rules governing pro and co-equal departments of our polity can do its
cedure was and had been for centuries in the King's work effectively if the minute details of its pro
courts at Westminster. Causes were not heard cedural operations, as distinct from the substantive
ordinarily at bar in those courts. They Were tried law it applies or administers, are dictated by some
at circuit. But the procedure was regulated by. other department. That the legislature should
general rules of practice promulgated by the judges claim such a power is something that comes down
of the superior courts at Westminster. Turn to to us from the extravaeant claims of the lesnslatures
Tidd's Practice, which was the standard book on in the period of legislative hegemony. The legis
English procedure when our American constitu lature ought to leave judicial procedure to the

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 602 American Bar Association Journal

judiciary as the judiciary must leave legislative with the halting American state legislation on
procedure (except as prescribed sometimes by state either subject.
constitutional provisions) to the legislature. Again, rules of court have an enormous ad
Certainly, if legislatures choose to abdicate their ac vantage in that they are interpreted by those who
quired power and to leave judicial procedure to the make them. They are not made by one body and
courts where it belongs, there can be no constitu then interpreted and applied by another body, which
tional objection. is out of sympathy with them. It took more than
What are the advantages of regulation of pro half a century for judges to acquire sympathy with
cedure by rules of court? Granting that analytic thfc codes of civil procedure. For nearly two gen
ally and historically control over judicial procedure erations, courts were governed by historical ideas
is a matter for the judiciary, why should one wish and common-law conceptions at variance with the
to change the American legislative precedents of spirit of the codes, and in consequence many of
seventy-five years and revert to the system of rules their most important provisions long failed of
of court? What may we expect to achieve by effect. The relatively rapid development of a
reverting to the common law in this particular, after modern procedure in England is largely due to the
so long a period of legislative control ? circumstance that those who made the rules in
We are not driven to rely upon general reason terpreted and applied them. Moreover, it is easy
ing in order to answer this question. We can vouch to bring professional opinion to bear upon the rule
a generation of experience in England, the experi making power, whereas the difficulty of procuring
ence of the federal equity rules, the experience of legislative action with reference to even the most
the federal admiralty rules, the experience of the crying needs of judicial procedure is notorious.
rules in bankruptcy and in copyright, and the ex Legislatures today are so busy, the pressure of
perience of administrative tribunals throughout the work is so heavy, the demands of legislation in mat
land, to each of which a full control of its procedure
ters of state finance, of economic and social legisla
through exercise of a rule-making power has regu tion, and of provision for the needs of a new urban
larly been conceded. Indeed, it is a curious and industrial society are so multifarious, that it is
anomaly that the legislatures and the bar have been idle to expect legislatures to take a real interest in
quite willing to allow administrative boards and anything so remote from newspaper interest, so
commissions, tribunals manned by laymen and pro technical, and so recondite as legal procedure. I
vided with little or no substantive law, a free hand grant the courts are busy too. But rules of pro
to shape their own procedure by giving them the cedure are in the line of their business. When a
rule-making power of the common law judge, while judicial council or a committee of a bar association
insisting that the courts, manned by trained judges, comes to a court with a project for rules of pro
accustomed to refer their every action to legal prin cedure, they will not have to call in experts to tell
ciples, and provided with an elaborate apparatus of the judges "what the project is about; they will not,
substantive law, be held down by detailed pro as has happened more than once when committees
cedural legislation. One would think that if either of the American Bar Association have gone before
were to be given some scope for doing things effi Congressional Committes?they will not have to be'
ciently in its own way, as dictated by experience, taught the existing practice and the mischief as well
it would be the courts; that if either needed the as the proposed remedy. When rules of procedure
procedural strait-jacket of a statute, it would be are made by judges, they will grow out of experi
the administrative commission. ence, not out of the ax-grinding desires of par
I have cited the different kinds of experience ticular law-makers.
with the rule-making power of tribunals Which are Another conspicuous advantage of regulating
available for study. What have they to tell us? procedure by rules of court is that changes may be
Compare these examples with the history of legis made from time to time as needed; rules may be
lative regulation of procedure in New York, where tried out and molded to the needs of practice. They
the regime of detailed statutory procedure has pre will not be made once for all by a rigid statutory
vailed longest and has gone furthest. The hyper provision requiring all the pomp and circumstance
trophy of procedure in New York has gone along of repeal or of legislative amendment before they
with an exceptional ineffectiveness as compared can be abrogated or improved. They will not have
with more than one of our older states in which the to be laid down as a whole a priori in advance.
legislatures have contented themselves with rela They can be built up as the work of the courts dic
tively simple practice acts and have left large com tates and can reflect mature experience, where
mon-law powers to the courts. statutory procedural provisions too often reflect
Experience shows abundantly that regulation only abstract speculations. The history of Ameri
of procedure by rules of court is the Way to insure can codes of civil procedure and practice acts is full
a simple effective procedure, attained by gradual of examples of unfortunate provisions inserted when
and conservative overhauling and reshaping of the statute was first enacted, which have em
existing practice. It shows that in this way new barassed the administration of justice ever since,
demands upon the machinery of judicial administra and of which neither judicial interpretation nor
tion may be met promptly by the ordinary means subsequent legislation has been able to deliver us.
of legal growth, instead of waiting vainly for years In contrast, the few unfortunate features of the first
for intervention of the legislative deus ex machina. English rules under the Judicature Act were done
If one doubts this, he need but compare the effec away with long since.
tive way in which the federal equity rules have Most of all however, when procedure is gov
dealt with enforcement of decrees calling for con erned by rules of court rather than by statute, the
struction work, or the simple effective English rule tendency is to make procedure subsidiary to the
made procedure as to interpretation of instruments, substantive law as it ought to be. In this connec

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 Divorce and Married Woman's Property Rights 603

tion, one might compare English rule-governed arbitrary system we have than to replace it by an
procedure with American statute-governed pro other that we shall have to learn.
cedure. But another example is quite as significant. But all experience shows that while statutory
In the old days of Jarndyce and Jarndyce, equity procedure runs to details, becomes elaborate and
procedure was even more cumbrous, expensive, over-grown, and is of necessity rigid and unyield
dilatory and ineffective than common-law pro ing, procedure prescribed by rules of court tends
cedure in its worst days. Today under the federal continually to become simple, adapted to its pur
equity rules, one seldom meets questions of equity poses, and adaptable by the simple process of
practice in the Federal Reporter. But the states in judicial amendment to new situations and needs of
which common-law procedure has been prescribed practice. If one doubt this, let him compare any
in detail by elaborate codes are still struggling set of court rules with even the best of the codes
with all manner of procedural difficulties as testi of procedure. If new legislative codes and practice
fied to in every volume of their reports. acts, of the sort familiar since 1847, Were proposed,
Are there any disadvantages in regulation of the things which Senator Walsh fears might well
procedure by rules of court to be set over against give us pause. But when he opposes regulation bf
the foregoing advantages? Study of the English procedure by rules of court, he invites these very
rule-making power in action, of the rule-making things. For as things are now, legislative codes of
power of the Supreme Court of the United States procedure are the only resource of our law-makers
in action, and of rule-making in action in those in a time when more effective judicial administra
states where the courts still retain much of their tion is urgently demanded. I deprecate new codes
as much as he does. Hence I look with confidence
common-law rule-making powers has failed to dis to the tried alternative of return to the common
close any. Nor have I found any in the literature
of this subject beyond those familiar vague and law powers of our courts.
Apprentice-trained, rule-of-thumb-trained law
general prophecies of disaster with which in all
yers have been unable to think of administration of
cases our best lawyers have always greeted any
project with which they were unfamiliar. The most justice without a hypertrophy of procedure. But we
vigorous attack on revival of the rule making power cannot go on in the urban, industrial America of
is to be found in a recent address of Senator Walsh today under the heavy weight of procedural detail
before the Bar Associations of Texas, Louisiana with which our courts are struggling. If we de
and Arkansas. He feels strongly that the proposal mand that our courts do things, we must give them
to govern procedure by rules of court rather than power to do things?we must set them free to do
by statute is a menace to our institutions and will things. We must hold them to the substantive law,
lead to wide-spread and injurious confusion. But indeed. But we must not make the substantive law
underlying his whole argument is a fallacious as nugatory by loading the courts with procedural re
sumption that rules of court will substitute one quirements. We must cease to prescribe the details
elaborate, detailed, rigid, hard and fast code for of procedure by legislation. None of you would
another. Apparently he cannot conceive of pro think of urging a code of substantive law. But
cedure except as an elaborate, detailed system of every reason you would bring forward against such
more or less arbitrary precepts. Thinking of it a code is strong tenfold against codes of procedure
thus, he holds rightly that it is better to keep the and detailed practice acts.

DIVORCE AND MARRIED WOMAN'S PROPERTY

RIGHTS
Light on the Subject Acquired by Study of Status of Woman in the Land of "Simultaneous"
as Opposed to "Continuous" Polygamy?Muhammad as a Woman's Rights Champion

By Hon. Pierre Crabites

Judge of the Mixed Tribunal, Cairo, Egypt

IN the fall of 1925 the Episcopalians of the United trilogy does not appear upon the surface. It is the
States in convention assembled anathematized pet darling of woman. It touches her purse. I
divorce and birth control. They denounced these refer to the Property Rights of married women.
two factors as the dual evil which menaces the fu Of course, I do not mean to imply that this
ture of our country. I do not say that they were failure to inveigh against the Property Rights of
mistaken. I do not wish to lessen the force of their Married Women was done with malice afore
outcry. I heartily approve of the sentiment which thought. On the contrary, I hasten to say that I
actuated their action. But I feel that I should point am convinced that there was not a single delegate
out that the monster against which they are fighting to the convention, whether priest or layman,
has triplets, not twins. The third element of the woman or man, who associated such a question

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