Ed Cooper, Rule 56, and Charles E. Clark's Fountain of Youth

Abstract

Nobody had a greater impact on the formulation of the original Civil Rules than Clark. His role as both the principal architect and the principal draftsman of the Civil Rules is well known. As Professor Wright once put it, although the Civil Rules were a joint effort, "the end product bears the unmistakable Clark stamp." But Clark started shaping the Civil Rules even before drafting began. Initially, Chief Justice Hughes thought the civil rules project should be limited to creating rules for actions at law (leaving in place-and separate-the existing equity rules). A passionate advocate for merging law and equity procedure, Clark mounted a multi-front campaign to get the Court to change its course. His campaign succeeded. Clark also succeeded in persuading the Court to adopt a centralized drafting process, with the work to be done by a select group of experts, many of whom Clark himself recommended. Finally, Clark maneuvered to be named Reporter, a position that no doubt contributed to the Civil Rules bearing his stamp. In this Essay, however, I want to focus not on the events that led up to the 1938 rules but on what happened after they took effect. Was the work of the Advisory Committee done? Did the Advisory Committee even exist anymore? If so, what was the Committee's assignment? It should come as no surprise that, just as Clark had strong views about the initial drafting of the rules, he also had strong views about how they should be superintended. Clark lobbied for the creation of a standing Advisory Committee, and he wrote extensively about what the work of the Committee should be. In one capacity or another, Clark continued to toil in the rulemaking fields for another twenty-four years until his death in 1963. This Essay proceeds in three parts. Part I looks back at the development of the institution of the standing Advisory Committee. It tells two stories. First, it provides a quick history of what the Advisory Committee did after 1938 and how it came to be in its current form. Second, it sets forth Clark's very influential views about what role a standing Advisory Committee should play. Part II returns us to modern times. It analyzes the most recent set of major amendments to the Civil Rules-the 2010 amendments to Rule 56-to see how that project relates to Clark's views on the continuing rulemaking process. Part III concludes with a few reflections on Ed's role in advancing some of the rulemaking values that Clark held so dear.