Geoffrey C. Hazard, Jr., and the lessons of history.

• Author: Wolff, Tobias Barrington
• Position: Testimonial

In the field of civil procedure, it is sometimes a struggle to get practitioners, judges, and scholars to give history the attention it deserves. In many other fields, the analytical significance of history and past practice are well established in our shared professional culture. Torts, property, and the other common law subjects, constitutional law, international law--in these areas and many others, the evolution and growth of legal doctrines over time form an integral part of the common understanding of how modern problems should be understood and approached. The collection of doctrines and institutional practices that govern the field of civil procedure are no less shaped by their history. But that history rarely informs present debates. There are a few conspicuous exceptions, the most notable being the doctrine of personal jurisdiction, which is usually taught in law schools as an historical exercise in legal process and constitutional common law. But when it comes to the core doctrines of civil practice and litigation--preclusion, joinder, discovery, pleadings--discussions often proceed as though the world began in the closing decades of the twentieth century.

This state of affairs makes the work of scholars like Geoff Hazard acutely important. Professor Hazard has been at the center of the world of procedure for half a century. By virtue of that fact alone, he is well equipped to serve as a living archive of the growth and evolution of the practice of civil litigation--a role that he acknowledged somewhat wryly in an essay twenty years ago when, writing about the operation of the Federal Rules on the occasion of their fiftieth anniversary, he began one section by noting, "Remembering as I do how a defense could be conducted under old code pleading...." (1) From his fifteen-year tenure as Director of the American Law Institute, to his role as draftsman of model rules on both judicial conduct and professional conduct for the American Bar Association, to his service as Reporter for the Restatement (Second) of Judgments, there are few aspects of the analytical and institutional business of litigation over the last fifty years that have not been shaped by his hand.

But the lessons of history go deeper in the work of Geoff Hazard, for Professor Hazard has been one of a core group of scholars who have emphasized the historical foundations of civil practice as the starting point for understanding modern procedure--its shape, its content, and its direction. Nowhere is this commitment more apparent than in An Historical Analysis of the Binding Effect of Class Suits, the magisterial account of the historical origins of the modern class...