In this symposium collection of essays honoring Professor Ed Cooper in his twenty-fifth year of service as the Reporter for the Advisory Committee on Civil Rules, this short appreciation describes Professor Cooper’s pivotal role in shepherding various proposed amendments the class action Rule 23, between 1991 – 1997, through the federal rulemaking process.
Professor Cooper was appointed as the Advisory Committee Reporter shortly after Congressional sunshine legislation opened the federal rulemaking process to public participation and scrutiny. In addition, he assumed the role of Reporter in the midst of an era of a fervent law reform seeking amendment to the class action rule to deal with docket congestion as a result of burgeoning mass tort litigation. As such, Professor Cooper had to skillfully negotiate the competing demands of interest groups, attorneys on both sides of the docket, academicians, as well as state and federal judges.
This brief appreciation of Professor Cooper documents the history of the rulemaking process as it relates to the various proposed amendments to Rule 23 during a six year period and Professor Cooper’s patient role in mediating the competing concerns placed upon the Advisory Committee. It describes how the Advisory Committee, under Professor Cooper’s careful guidance, moved from an initial impulse to accomplish wholesale revision to the class action rule, but ultimately settled instead for modest revisions. In six years, the Advisory Committee moved from a radical “root-and-branch” approach to rewriting Rule 23, to a “minimalist” solution. In assessing Professor Cooper’s role as Advisory Committee Reporter, the essay suggests that his calm, deliberate, Zen-like stewardship of the rulemaking process enabled the Advisory Committee to weather a tumultuous period in its rulemaking history.
Linda S. Mullenix, Professor Ed Cooper: Zen Minimalist [Symposium: Honoring Professor Edward Cooper], 46 Michigan Journal of Law Reform 661 (2013).