Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not with a Bang, But a Whimper)

Abstract

This is a piece written on the retirement of Steve Yeazell, whose distinguished career is almost contemporaneous with my own time in law teaching, though I must admit he is a bit younger than I am. I started teaching Civil Procedure in the fall of 1973 fresh from a federal district court clerkship. I was attracted to the possibilities of using the civil litigation system to provide justice to those who were otherwise without much power in society. The Federal Rules of Civil Procedure as then interpreted, and as I had seen them work during my clerkship, seemed well designed for such a role. The vision they reflected was essentially that pleadings would be there only to start the action, and give a general version of what I have called elsewhere “episode notice” and “general theory notice,” so that the defendant could have a fair opportunity to begin his (her or its) own investigation of the details of the episode that gave rise to the controversy. Discovery (which as a generalized mechanism was a virtual invention of the 1938 Federal Rules) would then take place under court supervision, so long as the plaintiff had a reasonable and well grounded suspicion that he (she or it) had been harmed by defendant in violation of law. In this way, failure of proof resulting from defense stonewalling (or miscarriage resulting from plaintiff stonewalling) would be avoided, and the specific issue-sharpening function that pleadings had served under the Field codes would be delayed until the end of discovery, as would any issues of summary judgment. This approach essentially exploded any claimed right in defendants to “put the plaintiff to his proof” by analogy to the right to stand silent in criminal proceedings. In addition, the class action device had evolved into a supple instrument to bring to book predatory actors of all sorts who took relatively small amounts from large numbers by various schemes and devices.

Not long after I began teaching, the first effective shots of the civil procedure counter-revolution were fired at the 1976 Pound Conference, sponsored by the ABA at the behest of Chief Justice Warren Burger. This paper chronicles my view of the counter-revolution from that point through the decision of the summary judgment trilogy in 1986, and into the early 1990s. The trilogy and its aftermath, and related developments in regard to other topics such as class actions, finally led me to abandon civil procedure as a subject of interest, and to turn my sole attention to other fronts. It is good that others such as Professor Yeazell stayed to fight the rear guard action, or to document the lost battles, or to make the best of a bad situation, but given what has happened to Civil Procedure since I left it, I am generally glad I moved on to new pastures in Evidence and Proof, and in the innocence movement.

Keywords: civil procedure, summary judgment, class actions, counter-revolution