AuthorWood, Diane R.
  1. WHY PROCEDURE? 2062 II. PROCEDURES WITH SUBSTANTIVE IMPACT 2067 It is a great honor and a great pleasure to have the opportunity to say a few words about one of the most consequential scholars of civil procedure and the federal courts in the country. No one can do justice to the breadth of Professor Burbank's more than forty-year span of work, and I know better than to try. A remarkable group of scholars and practitioners has gathered for this festschrift, and I will leave it to them to highlight his particular contributions to different aspects of the law.

    What I would like to do is to invite all of us to step back and look at the big picture--the forest, if you like. Steve has often done just this, while never losing sight of each individual tree and its potential importance. I am reminded of the 19th century British scholar, Sir Henry James Sumner Maine, who commented on the intertwining of substance and procedure in a way that may be familiar to you. But here is the longer version, in Maine's words:

    So great is the ascendency of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms. (1) My only quarrel with that sentiment is that this interdependence of substance and procedure is not confined to the medieval Royal Courts, and it is not just "early lawyers" who view law through the "envelope of its technical forms." For better or for worse, the insight still holds, though today the point has been made in a different way, by Professors Burbank and Tobias Wolff: "in 'procedure' lurks power to alter or mask substantive results." (2)


    Compelling as that proposition is, it is not one that is immediately obvious to newcomers to the law, or maybe even some old hands. Why, after all, would anyone want to study court procedure? Who goes to law school dreaming of becoming the leading guru on Federal Rule of Civil Procedure 23, or who fantasizes about picking apart the intricacies of different kinds of dismissals governed by Rule 41? And who thought he or she would stay up late at night trying to decide what a "short and plain statement of the claim," as described in Rule 8, really is? No one I know. And there are plenty of lawyers today who still don't see the thrill in procedure, though I suspect that they have not read anything that Professor Burbank has written.

    Grander notions of constitutional law dominate the thinking of most law students: What does it mean to assure equal protection of the law? How effective is that constitutional guarantee (and for whom)? Is the right to freedom of speech endless, or does it bump into some limits ("fire" in a crowded theater, defamation, or tweets about unfounded conspiracy theories, perhaps)? Is the fact that the death penalty was widely used in 1791 enough conclusively to settle the debate on whether it is now one of those "cruel and unusual" punishments banned by the Eighth Amendment, and if not, why? Why are some parts of the Constitution effectively unenforceable through the courts--such as Article IV, section 4's command to the United States to "guarantee to every State in this Union, a Republican Form of Government"? Perhaps recent events will inspire a rethinking of the decision to understand that last one as non-justiciable--we shall see.

    Or take statutes. Would you rather explore the Sherman Act (a particular favorite of mine), or the Voting Rights Act of 1965, or the Clean Air Act, or the Endangered Species Act, or would you prefer to lose yourself in the Hydra-headed monster known as discovery of electronically stored information? Did the Rules Enabling Act ever inspire anything like the famous cartoon illustrating the overweening influence the big "trusts" had in Congress (showing huge fat representatives of each of the trusts, looming over small and cowering Senators)? (3) Not that I know of.

    What, then, is the allure of such civil procedure staples as the Rules of Decision Act (4) and the Rules Enabling Act (5)? I have always thought that a non-lawyer, or indeed anyone but a civil procedure buff, would regard the Rules of Decision Act as a tautology: "The laws of the several states, except where [federal law] otherwise provide[s], shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." (6) Which cases would those be? The statute is now, and always has been, silent about that critical point. That is regrettable for a country that decided immediately to have two parallel sets of courts--state and federal--with largely overlapping subject-matter jurisdiction.

    And, as Professor Burbank has pointed out more than once, the Rules Enabling Act also has its Delphic qualities. After stating that the Supreme Court "shall have the power" (7) to prescribe rules for cases in the lower courts--thereby bypassing the question whether it had that power all along, or if it had only those powers conferred by Congress--the Rules of Decision Act says that "[s]uch rules shall not abridge, enlarge or modify any substantive right." (8) It is difficult to take that language literally, as our experience with the "outcome-determinative" approach of Guaranty Trust v. York illustrated so well. (9) Every procedural rule has the potential of "abridging, enlarging, or modifying" a substantive right. And that fact hints at the answer to the question with which we started: why procedure?

    Disputes will arise, no matter the size of the society. And for millennia, people have tried to establish peaceful methods of dispute resolution. The Code of Hammurabi (the best-known of the cuneiform group) dates from approximately B.C.E. 1,750. (10) And Codes existed even before that: around 2,400 B.C.E., there is evidence of a Code of Urukagina, named for a man who was king in some city-states of ancient Mesopotamia. (11) Laws are also referred to in cuneiform scripts in a number of ancient kingdoms--for example, Sumeria, Babylon, Assyria--dating back to the period between 2,800 and 1,200 B.C.E. (12) In ancient Ur, one finds the Code of Ur-namma dating from around 2,100 B.C.E; it is the earliest extant legal text and can be seen today in Istanbul at the Archeological Museums. (13)

    Fast forward about 4,000 years, and we come to the formative years of what became the United States. From those early civilizations forward, it had been clear that a society needs to do more than simply enact laws. It has to have a way of enforcing them. And the English tradition inherited by the colonists had such a system: the common law courts and the courts of equity. Roman law and its offshoots were the other major alternative in Europe at the time; but, setting to one side the compelling scholarship of Richard Helmholz (showing how the canon law influenced the common law, and how the canon law itself was related to Roman law), (14) the colonies for the most part paid Roman law little heed.

    Instead, the colonies modeled their courts on the local and royal courts they had known in England. But entry to the royal courts, and later the colonial courts, was strictly regulated. A layperson could not just go to the king's court and complain that his neighbor was trespassing on his land; or that he was promised a young horse but the seller delivered an old, broken-down nag; or that his taxes were too high. Only a trained lawyer would have the necessary command of Latin for the "writs" describing the type of case and indicating which court should hear it; and only a trained lawyer was competent in the clumsy "law French" that was spoken in English courts until just after the Restoration in 1688. (15) In short, in order to bring substantive rights to life, or to obtain effective redress from either another private party or the State, a mastery of court procedure was essential.

    In that respect, nothing has changed up to the present day. Tribunals of all kinds--federal courts, state courts, arbitral tribunals--need certain basic information before they can move ahead with a grievance that has been laid on their doorstep (usually electronically, these days). The initial paper the court receives--call it a complaint--must serve a few critical functions: (1) it has to tell the court and the other party what the case is about from a factual standpoint; (2) it has to explain why the plaintiff chose this court as opposed to another, and justify that choice; and (3) it has to let the court know what kind of remedy the plaintiff is seeking. How easy or hard it is to make that initial showing will determine how secure the status quo is. If the plaintiff cannot get through the door, then the status quo will remain unchanged, and whatever losses or wrongs might have taken place will stay where they lie. That is true in a federal court whether the reason the plaintiff is turned away stems from her inability to satisfy the criteria of Article III (that is, considerations such as standing, ripeness, and mootness), or if (in a diversity case) she cannot satisfy the amount in controversy imposed by statute, (16) or if she fails to furnish enough detail in her complaint, or if her complaint is so prolix that the court cannot make heads or tails out of it. All of those barriers, it bears underscoring, are procedural in nature.

    And that is just the beginning of the procedural hurdles that a litigant must clear. The federal courts have embraced judicial management, (17) and so cases are scripted from cradle to grave. If the litigant wants to obtain information relevant to the claims or defenses in the case, he or she must turn to the discovery rules. (18) Those rules dictate both the ways in which information may be sought and the interactions among the judge, the other party (and its lawyers), and one's own lawyer. Other rules dictate preparation for pre-trial...

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