Private Law Theory Meets Civil Procedure Colloquium

Civil procedure has long been considered an adjunct to the substantive law – in the words of Charles E. Clark, former Yale Law School dean, Second Circuit judge, and primary drafter of the Federal Rules of Civil Procedure, the “handmaid to justice.” In Clark’s view – along with other prominent contemporaries like Karl Llewellyn and Roscoe Pound – procedure’s proper place is “subordinate . . . to the ends of substantive justice.” In a very general way, this is of course true; procedure should support and not inhibit the ends of the substantive law. But in recent years scholars have come to understand that procedure is not simply “adjective law,” but is a source of power and value. As such, procedure itself demands the same theoretical attention as other areas of law, distinct from the substantive law in cases that are being litigated. Although procedure straddles the line between “public” and “private” law, and much attention has been focused on the “public law” aspects of the procedural canon in areas like jurisdiction and the Erie doctrine, the organizing idea of this colloquium is that private-law theory has much to offer in the study of procedure, and vice versa. How procedure has adapted over time – and the necessary tradeoffs in procedure that scarce resources require – may offer a lens into how and why private law has developed or should develop.

This colloquium seeks to bring together scholars who study procedure – including mass, or aggregate, litigation – with scholars who focus on private-law theory. One of our main questions will be how the development of procedure as a field with its own rich, normative foundations aligns with (or maybe challenges) deeply rooted principles of contract and tort theory.