Law and Equity on Appeal

Most lawyers know that the Federal Rules of Civil Procedure merged the divergent trial procedures of the common law and of equity, but fewer are familiar with the development of federal appellate procedure. Here too there is a story of the merger of two distinct systems. At common law, a reviewing court examined the record for errors of law after the final trial judgment. In the equity tradition, an appeal was a rehearing of the law and the facts that aimed at achieving justice and did not need to await a final judgment. Unlike the story of federal trial procedure, in which we can identify a date of merger (1938, with the Federal Rules) and a winning side (equity), the story of federal appellate procedure laid out in this Article reveals a merger that occurred fitfully over two centuries and yielded a blended system that incorporates important aspects of both traditions. In addition to revealing the complicated roots and hybrid character of current federal appellate practice, this Article aims to show that an appreciation of the history can explain some current pressures in the system and open our minds to the possibility of reform. Some odd developments in the appellate courts can be understood as suppressed features of equity practice reasserting themselves. With regard to the potential reforms, the suggestion is not that we resurrect the bifurcated procedure of the past. Nonetheless, there are circumstances in which today’s federal courts could benefit from recovering features of the equitable model of appeal.