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THE first edition of this book which appeared in 1938 was "to a considerable degree . . . experimental." We regard the experiment as having been substantially successful. In this second edition, therefore, we have followed in general the plan of the prior edition, with only such changes as have been necessary to bring the book up to date and to incorporate the lessons of eight years of classroom use, including the omission of material which we have found could not be covered adequately in a first-year law school course of normal length.2
The present edition is still not definitive. It is issued at this time to meet the immediate needs of students, mostly veterans, entering law school in the summer and fall of 1946. More time for revision would have been useful. More time might also have made it possible to include the amended Federal Rules of Civil Procedure which are expected to be promulgated in the near future by the Supreme Court of the United States. But the "more time" was not available.
This edition is thus in a sense temporary. When the revised Federal Rules are promulgated, it is our intention to begin work on a definitive third edition for publication by 1948. We shall appreciate any suggestions for this next edition.
A. W. S.
May 1, 1946
1 Scott and Simpson, Cases on Judicial Remedies (1st ed. 1938) xi. 2 We gratefully acknowledge the kindness of the Harvard Law Review Publishing Association, the West Publishing Company, Little, Brown & Co., The Bobbs-Merrill Company, The Macmillan Company (for the extract from Maitland, Equity, pp. 592-601, infra), the Lawyers Cooperative Publishing Company, the Bancroft-Whitney Company, the New York University Press, the Bar Association of the City of Boston, and the American Law Institute, in allowing us to reprint extracts from copyrighted materials.
3 See Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945). These proposed amendments are to be submitted to the Supreme Court in 1946 by the Advisory Committee which has drafted them.
AND OTHER MATERIALS ON
THE JUDICIAL SYSTEM
FROM very early times the administration of justice has been a primary function of governments. When men live together in society, disputes and conflicts of interest inevitably arise, and unless some superior force intervenes to settle them, the disputants will resort to private warfare. We shall not attempt here to trace the development whereby the state has obtained a substantial monopoly of the function of adjudicating disputes between its citizens; but the student should remember that in civilized states the ultimate appeal of private persons having disputes between them is to state tribunals.
Today such tribunals are usually called courts, although in the last few decades certain classes of disputes have been placed under the jurisdiction of tribunals called by other names-boards, commissions, etc. so that a considerable part of the work of a lawyer nowadays is elsewhere than in the courts. Nevertheless, the backbone of the system of governmental machinery for the settling of disputes is the court system, and a knowledge of the organization and functioning of the courts is fundamental to the training of a lawyer. The problems of when one may take a client's case to court with hope of a successful issue and what one does to take the case there and after the case is there are basic to the practice of the law. While it is true that a large part of practice is concerned with advising clients and drafting legal documents, such advice must be given and such drafting done in the light of what may be expected to happen in court if certain advice is given and followed or a legal document drafted in a particular way.
Most of the courses in the law school curriculum are concerned with the substantive rules and principles in accordance with which the courts may be expected to decide questions which come before
them. Thus, the course in Contracts is concerned with the principles followed by the courts in deciding what promises will be enforced; the course in Torts is concerned with the principles followed by the courts in deciding when reparation may be secured by one person for an injury inflicted upon him by another other than through the latter's failure to perform a promise or quasi-contractual obligation; the course in Property is concerned with the rules and principles followed by the courts in deciding as to the possession or ownership of land and chattels and as to other rights therein. But in order to invoke the decision of a court on any of these questions, it is necessary to take the proper steps to set the judicial machinery in motion and to follow the appropriate procedure in placing the case before the tribunal for decision. This course is concerned primarily with these aspects of the law with what is called adjective law, or the law of procedure.
The law of procedure is of great importance to the beginning law student for three reasons. In the first place, a knowledge of how to get into court and what to do when one gets there is absolutely essential to a practising lawyer. Second, the procedure followed in the granting of judicial remedies in the past has had a very great effect upon the development of the substantive law, i.e., the rules and principles followed by the courts in deciding controversies coming before them. As the great English legal historian Sir Henry Maine put it, "substantive law has at first [i.e., in the early development of legal systems] the look of being gradually secreted in the interstices of procedure." It is impossible fully to understand much of the common law without an understanding of its history, and it is impossible to understand much of that history except in terms of procedural law. Finally, the system of precedents which contains most of the law of the English-speaking world involves the basic postulate that the decision of a court is authority only for the point actually decided, and it is impossible to determine what that point was without knowing how the case came before the court and what point or points were actually presented for decision. It is the purpose of this course to give the basis for an understanding of the procedural law of the various jurisdictions in the common-law world the United States, England, and the English-speaking dominions of the British empire, all of which derive the main outlines of their legal systems from a common source, England. The course is concerned with fundamental procedural conceptions and methods, and their history; it is not a course in the practice of any particular state or jurisdiction. But is is designed to afford the basis necessary for learning particular procedural systems.
1 Maine, Early Law and Custom (1883) 389.
2 Although dicta, i.e., statements as to the law made by the court which are unnecessary to the decision of the cause, may have large persuasive effect in later cases.
3 This will be made abundantly clear to the student in his first-year courses generally.