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Summing up the history of procedure from the codification movement of the nineteenth century to the Federal Rules practice of today, Robert Bone observed, “Each generation of procedure reformers, it seems, diagnoses the malady and proposes a cure only to have the succeeding generation’s diagnosis treat the cure as a cause of the malady.” While playfully highlighting the contingencies and unexpected consequences of procedural history, Professor Bone was not advocating a cyclical view of history, in which “cost and delay” continually recur as the bugaboos of procedural reformers who can’t quite figure out how to solve the problem. Instead, Bone called on proceduralists to recognize that history mattered and moved in procedure. The cost and delay that the codifiers complained of were not the same costs and delays that mattered to the pragmatists of a later era, whether those costs involved the source of procedural law, the uniformity of rules across the national courts, or the fusion of legal and equitable remedies. Legal norms in these and other respects evolved, and Professor Bone counseled that “[t]he hope for the future lies in recognizing that procedural decisions require complex value choices no less controversial than those underlying substantive law and that those value choices in turn require the proceduralist to have thought through deeper jurisprudential questions concerning the nature of law and its relation to social life.”


Courts | Judges | Law