The Handmaid of Justice: Power and Procedure in the Federal Courts

Abstract

This essay sketches a story of federal procedure writ large: it tells how federal procedure morphed from being the essence of federal power to being a mere instrument of power, from the instantiation of Justice itself in the Marshall Court’s telling to the mere handmaid of Justice as Charles Clark described it. Along the way, I hope to do three things: 1) point out a few tantalizing gaps in our knowledge, should other researchers wish to pursue them, 2) provide a guide to the often puzzling sources of procedural law, especially across the nineteenth century, and 3) wrestle with the question of how federal jurists have defined "procedure" over time.