Modern American civil procedure seeks to be clear, fair, and rational. The goal of the Federal Rules of Civil Procedure, the centerpiece of modern procedural reform, was to eliminate arcane technicalities and get to the substantive issues. Consequently, the original drafters sought to streamline pleading, ensure the presence of properly interested parties, gather all the relevant facts, and enable courts to make well-founded decisions on the merits.1
I began work on this subject several years ago and started to draft this essay for the present symposium at the beginning of May 2020. At that point I thought the arguments I was advancing might appear radical or extreme. Now, after the murder of George Floyd and all that followed, these arguments may seem only too obvious and even trite. If the changed social attitudes and energized political movements that have resulted since the Floyd murder detract from whatever value this essay might have, I have no regrets and can only plead the indulgence of readers who find that what I have to say all too familiar.
