Helen Hershkoff & Arthur R. Miller · November 2009
78 GEO. WASH. L. REV. 9 (2009)
The tributes in this volume celebrate Jack’s multifaceted accomplishments in the five decades since his graduation from the Harvard Law School in 1958. Professor Friedenthal’s work as a dean, as a special master settling disputes between the National Football League and the National Football League Players Association, and as a noted evidence scholar certainly deserves praise, but for us it takes a back seat to his important contributions to the world of civil procedure. It is a commonplace to say that law professors today are disaffected from legal practice and even ignorant of it. Jack has defied that trend: he is the unusual scholar whose insights, predictions, and suggestions have produced meaningful and positive change for lawyers, courts, and litigants. He consistently has turned a practical eye toward recognizing a problem, identifying possible reforms, and assessing the real world benefits of choosing one solution rather than another. Jack’s approach—methodical, incremental, and deeply respectful of institutional roles—reflects the humility that we have come to associate with this most exemplary of colleagues.
Jack’s articles have touched on problems and concerns that continue to engage the study and practice of civil procedure. His writing on both California and federal practice have offered no-nonsense recommendations that consider the different and competing procedural needs of plaintiffs, defendants, and outsiders to a case. Quietly and without jargon, these recommendations raise foundational questions about the role of procedural rules in a complex and evolving society; they point us to roads not taken, highlighting the problems that expectedly—or unexpectedly—have persisted or emerged.
This Festschrift is not the occasion for a comprehensive review of Jack’s work, but it does provide an opportunity for considering how Jack’s scholarship over these last five decades has shaped and might influence future developments in civil procedure. Although many different issues have been central to Jack’s scholarship, we focus on three themes that weave through his writings: aggregation and the contest between efficiency and fairness; information disclosure and the tension between autonomy and accountability; and rulemaking and the demands of impartiality and expertise. Combined, these themes help us to appreciate the distinct but complementary roles that Jack ascribes to adjudication, and the importance he attaches to process goals in civil litigation as well as in civil society.
