Actual court practice was freer than written procedural manuals suggest

Evidence

Reform did not come in one great burst. The actual practice of courts, particularly trial courts, was freer and easier than one might assume from reading manuals of procedure. As more research is done, more variance between book learning and reality comes to light. Alexander Hamilton prepared a manuscript manual of practice in 1782, probably for his own use. In it, he noted a decline in “nice Learning” about pleas of abatement. These pleas, he said, are seldom used, and are always “discountenanced by the Court, which having lately acquired a more liberal Cast begin to have some faint Idea that the end of Suits at Law is to Investigate the Merits of the Cause, and not to entangle in the Nets of technical Terms.” — Lawrence M. Friedman, A History of American Law, 803

Categorization

• QUESTION: Friedman’s recurring theme that book law and practiced law diverge — fertile methodological point worth chasing in later chapters on how to read legal sources.
• XREF: connects to: Enforcement discretion makes written rules differ from actual practice — Lawrence M. Friedman and Grant M. Hayden, American Law: An Introduction, 55

Broader Connections

• Enforcement discretion makes written rules differ from actual practice #expands (0.88) — Lawrence M. Friedman and Grant M. Hayden, American Law, 55