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Abstract

For centuries, the hoary principle of finality and the Latin-denominated writs devised so as to mollify its obduracy cast fearsome shadows, unchallenged within the courts of the British Isles. In the United States, these expatiated doctrines stalked with equal aplomb from the time of Chief Justice John James Marshall to the advent of the Federal Rules of Civil Procedure. For nearly 150 years, therefore, federal procedural law recognized only the skimpiest opportunities for renewed introspection afforded by these increasingly anachronistic constructs, ones nonetheless imbued with more and more of antiquity’s nearly sacerdotal sheen with each passing year.

In time, as counsel pirouetted and courts pondered, litigious pressures spawned ornate exceptions. These writs’ interminable permutations forced countless parties either to comply with dubious judgments or to navigate perplexing doctrinal snares in the farfetched hopes of winning even a modicum of relief. This oppressive reality inevitably fed frustration with not just the common law’s almost farcical formalism but also its and equity’s persistent arbitrariness.

From its original iteration’s release, Federal Rule of Civil Procedure 60 has sought to extirpate this century’s worth of debris. Still, the substance of this provision then empowered, as it still does, the federal courts to balance the need to rectify corrupted judgments against the sanctity bequeathed onto all final judgments, including blemished ones, by murky past and mesmeric precedent. In contrast to a nebulous common law, its bases for a final judgment’s negation promised more definite justice for litigants and greater clarity and certainty for courts, counselors, and parties. Especially after its first amendment, Rule 60 seemed more than sufficient to secure these eminent ends. Over the ensuing six decades, even as Rule 60(a)’s clerical nature aroused little tempest, the opposite has come to pass with regard to Rule 60(b). Swayed by notions of fabled geneses and visions of fictive yesteryears, judicial exegeses enveloped the latter in a befuddling haze. The entropy that many warned would arrive upon finality’s obviation has been realized as a result of its marginal relaxation via Rule 60(b), curdling the hope for equipoise at the heart of the procedural compendium of which it is but one part.

Perhaps most disturbingly, no compelling reason can validate this debasement. At least if verifiable history and explicit text are fairly read and fairly weighed, the time to remove this interpretive moss from the text of Rule 60(b) arrived long ago. Both justice and economy, federal procedural law’s preeminent lodestars, still impel as much. With only a digression (or two or four), this Article aims to achieve this feat for the academic and the practitioner alike.

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