For James Wm. Moore: Some Reflections on a Reading of the Rules

Abstract

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.