Definition
In procedural law, a step, order, or action in judicial proceedings is said to be "of course" when it may be taken as a matter of right, without special application to the court, or when the court has no discretion to refuse it once proper formalities have been observed. The term signals the absence of judicial gatekeeping: either the party may act unilaterally within the prescribed procedural framework, or the court will grant the request automatically upon application without inquiry or contest.
Two slightly distinct senses are in use:
1. Steps requiring no court permission at all — those a party may take effectually without leave, such as serving process within a standard deadline or amending a pleading as of right within a prescribed period.
2. Steps requiring only formal application — those the court will grant without opposition or investigation, provided the proper formalities are met. The issuance of a writ or summons is the classic example. An order to plead (a rule to plead) has historically been treated as a matter of course.
The contrast in both senses is with discretionary orders, which require the court to weigh circumstances, hear opposition, or exercise judgment before granting relief.
Common Language
Modern common usage (Wiktionary): "That which is part of ordinary behaviour or custom; customary, natural."
Historical common usage (Webster's 1913): "Of course" carried the sense of something that follows in the natural or regular order of events, without special cause or effort.
The legal meaning is narrower and more technical than the common meaning. In everyday English, "of course" simply signals something predictable or expected. In law, it is a term of art describing a specific category of procedural right: one that the court has no discretion to deny once conditions are met. A party claiming a right "of course" is not merely saying something is routine — they are asserting that judicial refusal would be error.
Common Confusion
"Of course" is sometimes loosely used in practice to mean merely "customary" or "routine," blurring the critical distinction between what a court typically does and what it must do. A discretionary act performed consistently can look "of course" in practice but remains subject to the court's discretion. The legal force of the term attaches only where the right is mandatory, not merely habitual. Researchers reading older opinions should watch for this slippage, as courts occasionally use the phrase in its colloquial sense within otherwise technical passages.
Why It Matters in Research
Procedural research: The concept is central to understanding which procedural steps require motion practice and which do not. When a statute, rule, or court order characterizes something as "of course," it signals that no opposition can block the step and no judicial discretion interposes — a distinction that matters acutely when researching timeliness, waiver, and error-preservation issues.
Historical sources: The phrase appears with particular frequency in nineteenth- and early twentieth-century practice manuals and equity procedure texts. Burrill's Latin equivalent — de cursu — points to the term's deep roots in common law and equity court administration. Researchers working in historical records should recognize that "of course" in older procedural texts carries the technical meaning, not the colloquial one.
Modern rules displacement: Under modern procedural codes (including the Federal Rules of Civil Procedure and their state analogues), the phrase itself appears less often, but the concept persists. Provisions granting amendment "as a matter of course" (e.g., Fed. R. Civ. P. 15(a)(1)) are direct descendants of this doctrine. Researchers should search both the historical phrase and its modern statutory equivalents.
Corpus connections: Researchers pursuing the mechanics of "of course" steps in contract performance and commercial contexts should distinguish procedural "of course" from the contracts terminology "course of dealing," "course of performance," and "ordinary course of business" — related-sounding phrases that operate in entirely different doctrinal frameworks.
Historical Dictionary Support
The five source dictionaries are in close agreement on the core meaning. Black's (both editions) and Bouvier emphasize the bipartite structure: steps taken without any application, and steps granted automatically on application. Rapalje & Lawrence add the most precise formulation — that the court or its officers have no discretion to refuse, provided proper formalities are observed — which best captures the mandatory quality that distinguishes "of course" from merely routine practice.
Burrill's entry is the most compressed but contributes the Latin antecedent (de cursu) and the phrase "in the general prescribed order of practice," which illuminates the historical grounding of the concept in regularized court administration rather than individual judicial judgment.
Black's 2nd edition is the only source to append case citations, referencing Stoddard v. Treadwell and Merchants' Bank v. Crysler as illustrative authority. These citations confirm the doctrine's active use in California and federal circuit practice at the turn of the twentieth century.
No source dictionary flags jurisdictional variation or the transition to modern procedural codes — a gap researchers should note when tracing the concept forward in time.
Jurisdictional Note
Modern procedural codes have largely codified the concept without using the phrase. Federal Rule of Civil Procedure 15(a)(1) is the most prominent example, expressly permitting amendment "as a matter of course" within specified time limits. State analogues vary in their time windows and triggering conditions. Researchers should not assume that the scope of "of course" rights is uniform across jurisdictions even where the underlying concept is shared.
Encyclopedia Cross-Reference
For the distinct contracts and commercial law uses of "course" terminology — course of dealing, course of performance, and ordinary course of business — see:
The Law Mind Contracts & Commercial Law Encyclopedia:
— Interpretation -- Course of Dealing, Course of Performance, and Usage of Trade (contracts_42)
— Performance -- Waiver of Conditions and Course of Performance (contracts_58)
— Secured Transactions -- Buyers in the Ordinary Course of Business (contracts_142)
Note: These encyclopedia entries address commercial law doctrines, not procedural law. The connection is terminological proximity only; the underlying concepts are independent.