For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 YALE L.J. 718 (1975)
We have become so transfixed by the achievement of James Wm.
Moore and his colleagues in creating, nurturing, expounding and annotating
a great trans-substantive code of procedure that we often
miss the persistent and inevitable tension between procedure generalized
across substantive lines and procedure applied to implement a
particular substantive end. There are, indeed, trans-substantive values
which may be expressed, and to some extent served, by a code of procedure.
But there are also demands of particular substantive objectives
which cannot be served except through the purposeful shaping,
indeed, the manipulation, of process to a case or to an area of law.
What follows is by no means an attempt to denigrate or undermine
the ongoing trans-substantive achievement of the Federal Rules of
Civil Procedure. Rather it is an exploration to rediscover the feel of
Date of Authorship for this Version
Cover, Robert M., "For James Wm. Moore: Some Reflections on a Reading of the Rules" (1975). Faculty Scholarship Series. Paper 2698.