Author Archives: Kellen

Work in Progress: NJ Bail Mortgages

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Many thanks to Henry Goldberg, CLS ’23, for his assistance with census data and ArcGIS mapping. Here is an initial map of around 650 mortgages securing bail bonds in Newark (Essex County) and Jersey City (Hudson County), New Jersey, from the year 2000 until major bail reforms were implemented in the 2017. The map is shaded by density of African American population according to the most recent census data. More work forthcoming in the Cities of Bail project, which will soon be hosted by the Center for Spatial Research at Columbia University.

The American Codifiers

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David Dudley Field has often been depicted as lone genius. That image served a political purpose when the architects of federal procedure sought to cast Field as a prophetic voice crying in a wilderness of antimodern practice. See especially Charles E. Clark, Address on the Proposed Rules of Civil Procedure, American Bar Association Journal, 22 (1936):787 (“Nevertheless, even Field was a lone worker, who carried through, by sheer force of his own intellectual strength, changes at best only half-heartedly supported, and often opposed even after their adoption, by his colleagues of the bench and bar.”). On the contrary, Field was joined by a host of what political science literature calls “policy entrepreneurs”—official and unofficial agents who frame political problems and propose, lobby, and advertise for the legislative “solutions” to those problems. See Luc Bernier and Taieb Hafsi, “The Changing Nature of Public Entrepreneurship,” Public Administration Review, 67 (2007):488-503; Michael Mintrom, “Policy Entrepreneurs and the Diffusion of Innovation,” American Journal of Political Science, 41 (1997):738-70.

The following work-in-progress tracks the many code commissions and legislative advocates of codification during the Field Code era. Nineteenth-century legal historians often focusing on sparring with Morton Horwitz over the elite, “orthodox” defenders of the common law. See Morton J. Horwitz, The Transformation of American Law: The Crisis of Legal Orthodoxy (Oxford 1994); Kunal Parker, Common Law, History, and Democracy in America (Cambridge 2011); David Rabban, Law’s History: American Legal Thought and the Trans-Atlantic Turn to History (Cambridge 2013). But as yet we know far too little about the equally elite supposedly “heterodox” advocates of codification and reform. This list provides a place to start.

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An American Lawyer in Egypt, 1876

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In 1874, President Grant appointed the North Carolina lawyer Victor Clay Barringer to be the American representative to the International Court of Alexandria, Egypt, one of the first modern international courts intended to be a permanent tribunal for claims arising from international commerce. Barringer had a colorful history. Scion of a respected southern family, Barringer had harbored the Confederate president Jefferson Davis on his attempted flight to Georgia in the waning days of the Civil War. In 1868, Barringer served on a state code commission with the northern radical Republican “carpetbagger” Albion Tourgee and the the southern convert to Republicanism William Rodman. Rodman and Barringer became close friends, and the letter below comes from the Rodman papers at the East Carolina University archives. Barringer presents a fascinating account of international litigation in Alexandria, the new court system, the clash with native Islamic law, and the irony that Barringer was now involved in a second effort (after postbellum North Carolina) to impose foreign laws on an unreceptive population.

North Carolina Code Commission, ca. 1868. Victor C. Barringer, William B. Rodman, Albion W. Tourgee.

North Carolina Code Commission, ca. 1868. Victor C. Barringer, William B. Rodman, Albion W. Tourgee. The original image can be found in the Albion Tourgee collection at the Chautauqua Historical Society, Westfield, NY.

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Network Analysis: Finding the Regional Influences of Codification

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In this series of posts I have been greatly aided by Lincoln Mullen, assistant professor at George Mason University and a frequent collaborator with the Roy Rosenzweig Center for History and New Media there. You can find additional information on this post, including all the coding where we “show our work,” at its associated RPub.

Since my last post, I’ve pulled together about thirty more codes, OCR’d them, and cleaned up the resulting text for comparison. This larger sample size allows for more sophisticated comparison than the one-off density plots, but the basic computation remains the same. With the density plot experiment, we asked “how much of the text in X code matches the text in Y code, and where are are those matches distributed in X code?”

Now instead of comparing one jurisdiction with another single jurisdiction, we can compare all codes to each other all at once and and graph the percentage of matching n-grams between each code: Continue reading →

Density Plots: Predicting the Influence of One Jurisdiction’s Code on Another’s

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In this series of posts I have been greatly aided by Lincoln Mullen, assistant professor at George Mason University and a frequent collaborator with the Roy Rosenzweig Center for History and New Media there. You can find additional information on this post, including all the coding where we “show our work,” at its associated RPub.

A nice feature of R Studio is that we can quickly visualize matching n-grams with density plots. In the future, we will want to hone in on particular passages to see if certain parts of the code (sections on pleading as opposed to evidence, for instance) had more influence than others. At the outset of the project, it’s nice to use density plots to eyeball the extent of textual borrowing, and the approximate spacing of the borrowings throughout the codes. Doing so can generate a number of hypotheses we can then test with more refined tools.

Let’s start by comparing California’s first code (1850) with the first two drafts of the New York code. Just counting up the number of matching n-grams indicates that California matches 22.5% of the n-grams in both the 1848 and the 1849 New York code. So which version was California drawing from? CA1 Continue reading →

The Influence of the Field Code: An Introduction to the Critical Issues

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Mr. Field’s Code

Before the mid-nineteenth century, American civil practice and trial procedure were largely regulated by case law, though on occasion well-established principles of pleading might find their way into short statutes or books of courtroom rules. New York pioneered a new path in the 1840s. The state first abolished its court of chancery in the 1846 constitution, transferring its massive case load to a new set of common law courts. In order to clear up what procedures would be used to resolve cases in the new consolidated court system, a three-member commission submitted a lengthy “Code of Procedure” to the 1848 legislature.

David Dudley Field, early 1840s, around the time he drafted the New York Procedure Code.

David Dudley Field, early 1840s, around the time he drafted the New York Procedure Code.

New York’s legislature adopted the 400-section code with little amendment, but when the commission submitted its final and expanded 1,800-section draft in 1850, the legislature let the bill die in committee, content to allow the original partial code and case law development to continue operating together.

Almost immediately the code and its chief draftsman, the Manhattan commercial lawyer David Dudley Field, became famous across the common law world. For the first time, a common law jurisdiction entirely abandoned the forms of action, insisting that parties need not conform to a small menu of stylized forms, but could plead the facts concerning their case and the desired remedy. The code introduced such features of modern American practice as the contingency fee and lawyer-controlled pretrial discovery practice. Continue reading →