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My contribution to this symposium will consist of the advancement of one main thesis and four subordinate and supporting ones. My main thesis is simple indeed. Procedural rules must be viewed as grants or creations of judicial power. My subordinate theses then indicate certain complications showing that in practice the matter cannot be thus wholly disposed of. Though too much reform has so assumed, it turns out that telling a court it has power does not guarantee exercise of that power. Judicial inertia, precedent-mindedness, love of technical niceties--all play their part in halting procedural improvement. So does, even more, a professional attitude which looks down on the subject save for an occasional broadside for its hasty reform. So does its lengthy history, some portions of which are wearily technical, though often not to the extent now assumed. So does the nature of the subject matter dealing as it does with routine which tends to progress only from mere habit into ironbound ritual. So does the countervailing cry, Away with all this foolishness; we want only justice--thus substituting aspiration for realistic endeavor. My subordinate theses call therefore first for that degree of skill and understanding which will know, recognize and appraise these pulls, pressures and diverting principles. They then suggest the need of casting the rules in terms to procure the desired results, stating court functions and operations rather than abstract mandates. Next they point out that the rules should instruct in the use of power, as well as grant it. Finally, since rules to shape habits do become routine and then ritual, they suggest the necessity of some further device, some continuing agency, constantly to revivify and restore them to their original purposes.
Date of Authorship for this Version
Special Problems in Drafting and Interpreting Procedural Codes and Rules, 3 Vanderbilt Law Review 493 (1950)