They Were Meant for Each Other: Professor Edward Cooper and the Rules Enabling Act

This introduction to the essays in this Symposium illuminates Professor Ed Cooper’s years as Reporter to the Civil Rules Committee by first briefly describing those who preceded him in the position and his own background. We then describe some of Ed Cooper’s many contributions to the Civil Rules Committee, the Federal Rules, rulemaking, and civil procedure by examining the present state of the Rules Committees’ work under the Rules Enabling Act. We conclude that after almost eighty years of experience under that Act, it is working well in large part because of the sound leadership provided by Ed Cooper over his twenty years as Reporter. It was during these years that the Committee developed an approach to rulemaking that was at once transparent and empirical, with multiple opportunities for participation by members of the public, the bench, the academy, and the bar; with many informal opportunities for consultation with members of Congress and the Executive Branch; and with an understanding by the Committee of its role in relation to the courts, Congress, and the Executive. Two episodes of recent rulemaking and related activity are described as examples of how well the Rules Enabling Act is working, in large part because of the very flexibility and discretion the Act has provided since 1934. One of those episodes occurred when Judge Anthony Scirica chaired the Standing Committee and then- Judge David Levi chaired the Civil Rules Committee. The other occurred when Judge Lee Rosenthal and Judge Mark Kravitz were the chairs of the Standing and Civil Rules Committees, respectively. Both episodes provide a basis for optimism about the future. And they make clear Ed Cooper’s continued steady role in supporting and cultivating the robust good health of the rulemaking process and the institutional values it protects.