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

Approaches to Federal Judicial History (Federal Judicial Center), 2020

18 Pages Posted: 21 Feb 2020

See all articles by Kellen Funk

Kellen Funk

Columbia University - Law School

Date Written: January 24, 2020

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.

Suggested Citation

Funk, Kellen, The Handmaid of Justice: Power and Procedure in the Federal Courts (January 24, 2020). Approaches to Federal Judicial History (Federal Judicial Center), 2020, Available at SSRN: https://ssrn.com/abstract=3525153

Kellen Funk (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

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