God, Metaprocedure, and Metarealism at Yale


Linda S Mullenix

87 Michigan Law Review 1139


In 1988, Procedure, the result of the collaborative efforts of Professors Cover, Fiss, and Judith Resnik, was finally published. Without a doubt this truly monumental casebook is legal education's publishing event of the year. Not only is the book of great moment to civil procedure teachers, but it is a casebook that makes a dramatic statement about late-twentieth-century legal education.

The casebook's very title bespeaks its bold challenge to entrenched educational orthodoxies: it is not a text on civil procedure, nor on criminal procedure, nor on administrative procedure — but on Procedure. It is a casebook distantly rooted in Dean Roscoe Pound's sociological jurisprudence and the Realist movement of the 1920s and 1930s. More than anything else, this casebook is a product of Yale. After almost fifty years of false starts, Yale finally has produced a realist casebook for proceduralists. Whether it will suffer the fate of other realist casebook ventures remains to be seen.

Nonetheless, metaprocedure has now formally arrived and for procedure teachers this presents the quite simple question: Metaprocedure — what is to be done?In a legal specialization normally lacking in intellectual excitement, 1988 proved to be a stimulating year for proceduralists. This year market the fiftieth anniversary of both the Federal Rules of Civil Procedure and the Erie decision, events celebrated in no fewer than five academic conferences. Not coincidentally, a significant portion of one conference was devoted to an exploration of metaprocedure and its implications for the law school curriculum.

The coalescence of these events in one year has generated excitement, enthusiasm, skepticism, dismay, and despair. In the realm of procedure, eternal verities have proven less than eternal; the traditional canon is under attack; and intellectual pluralism reigns supreme. Senior professors have seen it all before; mid-career academicians are for the most part (to borrow from the 1960s which nurtured this generation of the professoriate) ‘doing their own thing’; and the youngest generation to join procedural ranks is — well — justifiably confused.

The appearance of Procedure, then, is central to the introspective self-searching in which proceduralists are engaged. The fiftieth anniversary of the Federal Rules prompted a reassessment of their efficacy in achieving the stated goals of a ‘just, speedy, and inexpensive determination of every action.’ This milestone has also fueled renewed interest in Professor Cover's critique questioning the transubstantive nature of the rules. Finally, the publication of Procedure has, in effect, set the procedural debate for years to come by challenging the narrow, received tradition of exclusive focus on civil adjudication.

This is an essay about the Cover, Fiss, and Resnik casebook Procedure. But, more broadly, it is an essay about the larger academic setting that will either embrace or reject the intellectual approach embodied in the text. It is an essay about the sea changes currently felt across the discipline, where a significant number of teachers now call themselves ‘proceduralists.’ This is a series of reflections on the import of metaprocedure for the traditional canon and for legal education generally.

The first section of this essay places the theory of metaprocedure in its historical context. It shows that the development of a broadly conceived understanding of procedure derives from the realist movement at Yale. This section also describes other attempts at realist curriculum and casebook revision and their reception at law schools. With this background in mind, the second part of the essay describes and critiques the Cover, Fiss, and Resnik casebook. The general conclusion is that the authors have presented an exciting, challenging, and highly intellectual conception of the discipline.

The casebook fills a long-standing gap of theoretically undernourished procedure texts. The authors have redefined a field of study; reshaped thinking about procedural issues; and recast the dialogue among academic colleagues. The ultimate question is whether this revolution will take hold or whether metaprocedure will pass from the scene as another failed realist attempt at reforming the traditional curriculum.

Finally, the third section of the essay attempts to assess the impact of metaprocedure on the current teaching of civil procedure. Thus, apart from its historical roots, metaprocedure is viewed in contemporary context. Here, different approaches to procedural scholarship and education are described, raising challenging issues for the integration of metaprocedure into existing curriculums. Again, the primary question is whether metaprocedure can intelligibly be integrated into current procedure courses, or whether it requires wholesale curriculum reform in order to be truly appreciated as an intellectual framework for understanding the law.

Full Citation

Linda S. Mullenix, God, Metaprocedure, and Metarealism at Yale, 87 Michigan Law Review 1139 (1989) (essay reviewing Procedure, by Robert M. Cover, Owen M. Fiss & Judith A. Resnik).