Professor Antonio Gidi Publishes on "Incorporation by Reference"
"Incorporation by Reference: Requiem for a Useless Medieval Tradition." Hastings Law Journal 70 (2019).
American lawyers mechanically introduce each count in a pleading with the talismanic clause of “repeat and reallege” everything said before.
This is a useless recitation, cluttering complaints, answers, and indictments. It has no purpose, makes no sense, and is not used in any other legal system. This medieval practice made sense in the formalistic common-law pleading of the 16th century, but it has no place in modern pleadings.
Professor Antonio Gidi's article traces the practice to a 1591 Queen’s Bench opinion, and he follows its evolution from English common law to American common law pleading to American code pleading to the Federal Rules of Civil Procedure.
The article explains how this useless tradition survived logic and common sense, and why it should have been abolished centuries ago. It concludes that it is an empty tradition with no basis in the law.