Marcus on Legal Realism and the Federal Rules of Civil Procedure

David Marcus, James E. Rogers College of Law, University of Arizona, has posted The Federal Rules of Civil Procedure and Legal Realism as a Jurisprudence of Law Reform, which will also appear in Georgia Law Review 44 (2010). Here is the abstract:

Since the 1930s, legal realism has weathered claims that its adherents had no use for legal rules and lacked a positive program of law reform. This article uses the Federal Rules of Civil Procedure, the major procedural reform of the twentieth century, to illuminate more accurately the treatment of rules in realism as well as its constructive potential. It draws upon the published and unpublished writings of Charles Clark, the primary author of the Federal Rules and a leading realist, to describe a realist procedural jurisprudence and to explain why the Federal Rules neatly illustrate this jurisprudence in practice. Part I draws upon classical pragmatism, realism’s philosophical antecedent, to depict more accurately the place of rules and reform in realism. Two principles – an emphasis on the functional competence of rules to achieve particular ends, and faith in methods of inquiry over theories of ultimate ends – marked realists’ approach to both. Part II shows why procedural reform would attract a realist like Clark. Prior procedural regimes suffered from the same formalism that beset the substantive common law in the late nineteenth century. Clark developed his procedural jurisprudence in reaction to this formalism, emphasizing functional competence and good methods of inquiry as key principles. Part III then explains how these principles and Clark’s distaste for procedural formalism shaped the Federal Rules in important ways. The article concludes with a discussion of the promises and shortcomings of realism as a jurisprudence of law reform.