Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper)


This is a piece written on the retirement of Professor Stephen Yeazell, whose distinguished career is almost contemporaneous with my own time in law teaching. I started teaching Civil Procedure in the fall of 1973 fresh from a federal district court clerkship. I was attracted to the possibilities of using the civil litigation system to provide justice to those who were otherwise without much power in society. The Federal Rules of Civil Procedure as then interpreted, and as I had seen them work during my clerkship, seemed well designed for such a role. Not long after I began teaching, the first effective shots of the civil procedure counterrevolution were fired at the 1976 Pound Conference, sponsored by the American Bar Association at the behest of Chief Justice Warren Burger. This paper chronicles my view of the counterrevolution from that point through the decision of the summary judgment trilogy in 1986, and into the early 1990s. The trilogy and its aftermath, and related developments in regard to other topics such as class actions, finally led me to abandon civil procedure as a subject of interest, and to turn my sole attention to other fronts. It is good that others such as Professor Yeazell stayed to fight the rear guard action, or to document the lost battles, or to make the best of a bad situation, but given what has happened to Civil Procedure since I left it, I am generally glad I moved on to new pastures in Evidence and Proof, and in the innocence movement.

About the Author

D. Michael Risinger is the John J. Gibbons Professor of Law at Seton Hall University School of Law

By uclalaw