In a couple of recent postings, Betsy has lamented changes in the use of the law and detected a loss of majesty and mystery. First, "I think our current students, exhibiting all these problems, may be part of a further paradigm shift. They skim, they do not read. They cut and paste, drop text in. I am not sure how they analyze. They may be doing it a different way." Then, describing "plain English" movement in English law, where guardian at litem will be replaced by "litigation friend": "Perhaps it will all be for the better. Perhaps it demystifies processes that should be transparent to even the least-educated participant. But forgive me, I also think there is a real place in the process for majesty and awe. I am not sure the participants understand the process any better for re-naming things with rather prosaic, dull words. They want their day in court, damn it, and they want it to mean something!"
So here am I in my traditional role of advocatus diaboli ("pain in the ass"). But it occurs to me that the legal system has survived simplification movements before, even though I imagine some saw them as "dumbing down." Remember those incomprehensible cases from the first month of Contracts and Torts classes, and all that obscure common law pleading? Maitland's The Forms of Action at Common Law (1909) is the classic treatise on trespass quare clausum fregit, trespass vi et armis, trespass on the case, and all those other terms that used to convince many first-year law students to buy copies of Black's Law Dictionary that they never used again.
Let it be granted that one man has been wronged by another; the first thing that he or his advisers have to consider is what form of action he shall bring. It is not enough that in some way or another he should compel his adversary to appear in court and should then state in the words that naturally occur to him the facts on which he relies and the remedy to which he thinks himself entitled. No, English law knows a certain number of forms of action, each with its own uncouth name, a writ of right, an assize of novel disseisin or of mort d'ancestor, a writ of entry sur disseisin in the per and cui, a writ of besaiel, of quare impedit, an action of covenant, debt, detinue, replevin, trespass, assumpsit, ejectment, case. This choice is not merely a choice between a number of queer technical terms, it is a choice between methods of procedure adapted to cases of different kinds.All of that was surplanted in the U.S. by the Field Code and the later Federal Rules of Civil Procedure. I'm sure a lot of lawyers felt that something was irretrievably lost. Certainly the years of practice and the finely honed knowledge of the intricacies of medieval English law were suddenly rendered redundant. Still, the legal system didn't fall apart. Perhaps a little simplification of process of legal research won't hurt either.