The Parable of the Forms

Authors

Samuel L. Bray

Document Type

Article

Abstract

(Excerpt)

It might be good for each department to have its own form, or it might be better to have one form for the whole campus. That is an open question. It depends on how different the repair requests are in different departments, and on the value of specialization. It depends on whether we want some complexity about the choice of forms or if we want radical simplicity about the number of forms, with all of the complexity residing within a single form.

So, too, it might be good to have different forms of action. That way, everyone knows upfront what the plaintiff has to show and what the contours of the case are, with special procedures adapted to that kind of case. But there were real problems with the forms of action and also with code pleading. It might therefore be better to have one form of civil action, as under the Federal Rules of Civil Procedure. This way, no one accidentally chooses the wrong form or is penalized for failing to use the old words. We can be flexible in accommodating new fact patterns that might not fit so easily into the old forms. These were important questions in the nineteenth century, when the code-pleading statutes were being debated.

These were important questions in the first half of the twentieth century, when the Federal Rules were drafted and debated. Now, in the present, these questions are reemerging, as there is an increasing push for specialization in procedure. These are not the sort of questions that will ever really go away.