Revisiting the 1938 Rules Experiment

It is a genuine pleasure to be here at this graceful Law School. I can say that there is some intangible aspect that makes this place special, and I have always enjoyed coming here.I wish to thank the Lewis F. Powell Jr. Lecture Series Board, in particular Po Lutken, John Cleveland, and Zach Agee for their kind invitation and Po, John, as well as Ryan Starks and Devin Catlin, for their generous hospitality.It is a particular honor to be delivering a lecture named in honor of Justice Lewis Powell. The Justice was a most distinguished alumnus of this University and its Law School, and it is fitting that the Law School provides the home for his papers. I was particularly pleased to have met with John Jacob, the especially knowledgeable Archivist of Justice Powell's papers.After Justice Powell retired from the Supreme Court, he chose to sit periodically with the Fourth Circuit for a number of years and would have dinner with the judges during the week of our court sittings. I recall him describing in remarkable detail his initial hesitancy in accepting appointment to the Supreme Court and how Mrs. Powell (whom he fondly referred to as Jo for Josephine) advised him that he could not turn the President down. I also remember a discussion during one of these dinners in which one of the judges asked Justice Powell what opinion of the Court he most regretted. Without hesitancy, he responded: Bates v. State Bar of Arizona,* 1 which I took to be an expression of his love for the legal profession and his regard for it as a noble profession. You may recall that in Bates, the Court held, among other things, that the law profession's blanket regulation of advertising by attorneys could not be justified under the First Amendment's Free Speech Clause.2 Justice Powell dissented from this holding, noting, "It is clear that within undefined limits today's decision will effect profound changes in the practice of law, viewed for centuries as a learned profession."3Justice Powell was himself the epitome of graciousness. For example, whenever he sat with us, we always offered to let him preside, but he never chose to do so. He elected instead to sit in what I call the catbird seat-the seat to the right of the presiding judge. I have proudly retained Justice Powell's several notes to me expressing his pleasure in sitting together.I also learned much from him. Most fundamentally, I noticed that when he came to court, he did so with a healthy disposition in favor of the process given the parties by the lower court, imposing squarely on the appellant the burden to demonstrate why we should not affirm. While that sounds obvious, when appellate judges so often spend time considering the intricacies of individual issues-the trees in the forest, if you will-the forest itself can be forgotten.Just as we were all proud to have known Justice Powell, I am proud to join Washington and Lee in honoring him here.This afternoon, I propose to revisit the 1938 Federal Rules of Civil Procedure. Those new rules employed a range of procedural devices and an underlying procedural philosophy that had never before been employed.4 It was no less than a bold experiment in procedure.Let me explain with some background. The 1938 Civil Rules did not simply appear as the singular and immediate creation of the Advisory Committee appointed by the Chief Justice in June of 1935 to draft such rules.5 To the contrary, the Advisory Committee's work was the end of a long process that had begun in earnest almost a hundred years earlier.6Pleading in the federal courts had traditionally followed two disconnected tracks-one for courts of equity and one for courts at law.7 There was a third track for courts in admiralty,8 but that is a story for another day.With enactment of the Act of August 23, 1842,9 the Supreme Court was authorized to regulate the process and procedures in cases in equity, in admiralty, and at law.10 Acting on that authority, the Court adopted admiralty rules and updated an earlier set of equity rules. …