Monday, October 10, 2011

Justice Stevens’ Memoir Says Nary a Word About Civil Procedure

Whenever colleagues at one of my former institutions would (tongue in cheek) argue about which required law school course was most important, one of my fellow Civ Pro professors would invariably pronounce Civil Procedure as “the foundation of all law.”

Those of us who appreciated the spirit, if not the letter, of this sentiment are brought down a peg or two by Justice John Paul Stevens’ recently-published Five Chiefs: A Supreme Court Memoir.  In his brief history of the Chief Justices of the Supreme Court and the best-known opinions issued during the term of each, Justice Stevens makes no mention of a single civil procedure case – not even Erie.

Reading this 248-page small book is a pleasant way to spend an evening.  I felt that I was sitting on the porch drinking lemonade with the justice.  The book is organized chronologically, but some of his recollections seem a bit random.  Discussions of death penalty jurisprudence bump up against a lengthy criticism of the redecorating of the justices’ conference room.  Nonetheless, Justice Stevens’ graciousness, integrity, and love of the rule of law illuminate the volume. 

So, back to my topic: no civil procedure nuggets.  No discussion of why he couldn’t find some way to join Justice Brennan (or even Justice O’Connor) in Asahi and felt the need to strike out on his own.  (He did mention that in law practice in Chicago, he represented “a surprisingly large number of entrepreneurs who were distributors of products manufactured by others – coin-operated washing machines, auto parts, calculating equipment, magazines, automobiles, and soft drinks,” but this did not lead to any discussion of stream-of-commerce.)  No mention of Twombly and my favorite line of his dissent: “If Conley’s ‘no set of facts’ language is to be interred, let it not be without a eulogy.”  No mention of Iqbal, even though he does discuss why he believes sovereign immunity has no place in a democracy.  No mention of Shady Grove and that all-important portion of his concurrence with regard to Section 2072(b).    

Good read, but don’t bother if all you wanted was an inside scoop on some leading civil procedure cases.


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