Mary Kay Kane · November 2009
78 GEO. WASH. L. REV. 30 (2009)
What makes an influential procedure scholar? Acute powers of analysis, the ability to see the broader implications of procedural change, and the capacity to articulate clearly and concisely what is at stake are, of course, all critical qualities. But there is an additional contributing factor. It may best be described as someone who becomes intellectually intrigued with an area of procedure that ultimately evolves into one that is central to achieving our objectives of according fairness and justice through the adversary system. It is exactly that combination of skills and interest that mark Jack Friedenthal’s scholarly contributions throughout his academic career.
When asked to write an essay reflecting on some aspect of Jack Friedenthal’s contributions over his remarkable, fifty-year academic career, I, of course, first thought about the long-time and important influence he has had on legal education and on generations of law students through his co-authored, widely-adopted casebook on civil procedure, which was first published in 1968. But then I began to think about what procedural reforms had taken place during his academic career and how he, as a scholar, had contributed to them and, most importantly, had helped others understand them.
Throughout Jack Friedenthal’s career, a primary area of civil procedure reform has been in the area of the pretrial phase of litigation. The attention paid to pretrial procedure reflects, in part, the reality that most cases settle. But it also reflects the increasing docket pressure on courts, which has led to considerable emphasis on providing the courts with the appropriate tools to manage their cases efficiently and fairly, and to curb abuses that appear to prevent that from happening. In some instances, these reforms have created a “sea change” in the way that certain pretrial procedures are applied; in others, procedural rules have been amended to meet new challenges or to make available new tools to handle litigation that itself has changed dramatically since the rules were adopted in 1938. A brief review of some of the changes that have occurred reveals the massive scope of the reforms that have taken place in the pretrial process over the years and that are covered by the body of work that constitutes Jack Friedenthal’s scholarship.
