Shoes That Did Not Drop

Abstract

It is not possible to capture the essence of Ed Cooper: his spirit and intelligence suffuse the rules process (and probably other processes as well). What that process produces, he improves. What that process receives, he evaluates. All who have been involved in that process have been enriched by Ed. I can therefore only write about a small piece of his pervasive influence. I take "Shoes That Did Not Drop" as my topic because I appreciate, by now, that what the Advisory Committee on Civil Rules does not do is, in some ways, as important as what it does. Similarly, the decision not to do something is equally important as, and may be more difficult than, the decision to do something. It may sometimes seem that amending the Rules is too easy. Greg Joseph once said that they are amended as often as the telephone book. Some even think that it was a mistake to create a Rules Committee. These reactions are overstated, however. Amendments do not and should not happen often. Amending the rules is not easy and should not be. But a general appreciation of those truths does not mean that it is obvious when to go forward and when not to do so. There are certainly times when the clamor for action is very loud, and the risk of seeming to be a "do-nothing" body is unnerving. Sometimes that clamor may come from representatives of Congress, which can make inaction seem a particularly dubious outcome. Moreover, compared to the rulemaking titans of the past, it may seem that we are pygmies in the present, unable to get much of anything of consequence off the ground. So I thought I would reflect on some things that we did not try to get off the ground, or that we allowed to fall to the ground, and pay tribute in this way to the enduring gentle guidance we have received from Ed.