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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
a tension.

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