I would say that it's cold in New York City, except that I arrived here from Chicago where it was -3F on the thermometer and with the wind it felt like -20F. And of course, I'm at the Association of American Law School's Annual Meeting--the largest in the historyof the organization with more than 4,000 attending.
I’m at the Section on Civil Procedure’s annual program. As frequent readers of LTB know, procedure is near and dear to my heart. I've taught the course more times than I can remember & procedural justice is one of my major research interests. This year’s topic is “The Revolution of 1938 Revisited: The Role and Future of the Federal Rules.” The papers resulted from something that was once a rarity at the AALS, a call for papers, with competitive selection. There are so many things wrong with the AALS that one hardly know where to begin, but in recent years, there have been marginal improvements at the margins & this is one of them!
As I mentioned, the topic of this year's program is "The Revolution of 1938 Revisited: The Role and Future of the Federal Rules." Almost everyone knows that in 1938, there were two major revolutions in American procedure--the adoption of the Federal Rules of Civil Procedure and the Supreme Court's decision in Erie Railroad v. Tompkins. This panel focused on the Federal Rules, and especially on the processes by which federal rules are modified.
As always, when I "liveblog" a conference, some caveats are important. These are my notes on the speakers, and they are far from verbatim transcriptions. You should assume that what you are reading is primarily my understanding of what was said. I've condensed in many ways, and in some cases, I simply couldn't write fast enough to get down even the gist of what was said. Nonetheless, I hope you will find these impressions interesting.
The session was introduced by Steven S. Gensler of the University of Oklahoma, who introduced the speakers, and then yielded the floord to Debbie Bassett of the University of Alabama, who presented the first, co-authored paper.
Rex Perschbacher & Debbie Bassett (Alabama) “The Revolution of 1938 & its Discontents”
After some introductory remarks, Bassett got down to brass tacks. The federal rules and Erie have been considered the great accomplishments of civil procedure. There have been bursts of reform, but the revolution of 1938 is, in some respects, firmly entrenched. But in other ways, the rules have been undermined. The promulgation of the rules in 1938 should not be seen as a revolutionary change. The rules simplified pleading, and attempted to resolve disputes on the merits. The federal rules shifted procedure from vertical to horizontal uniformity, while Erie moved substantive law to vertical uniformity. The 1938 rules do not, however, reflect today’s purposes and aims.
What was going on in 1938 that enabled the creation of the federal rules? Should they be rethought today? The discussion will be organized around four questions. How do the federal courts today differ from those of 1938? When we praise the transsubstantivity, does that fit todays goals? Have we missed a change in the federal rules? Have we created a new project, federal rules revisions, that has a life of its own?
The goals of today may be different from those of 1938. It is fair to revisit the rules. How do today’s courts differ from those of 1938. Statistically, the federal courts are different. There were 247 federal judges in 1938—one-quarter of today’s number. In 1938, the number of district judges was 179, about one-quarter of today’s number. In 1938, there were 67,000 civil cases filed and 101,000 pending. Today, there are app. 367,000 cases filed and 321,000 pending. The most critical change is from trying cases to other modes of disposition. In 1938, 22% of cases reached trial. Today, 1.3% of cases actually reach trial. This arguably results in a different mission.
Have we come to overlook the normative aims of 1938. Today, we aim at efficient resolution rather than disposition on the merits. Today’s theme is efficiency. We are bombarded with stories of a litigation explosion, but only 1.3% of trials are disposed by trial.
Is there a counterrevolution? Management is now much more important, as is alternative dispute resolution. Justice Clark wrote that “pretrial” is not a substitute for trial, and settlement has no place in procedure under the rules. The drafters of 1938 would not have recognized the current emphasis on pretrial disposition and settlement. Federal litigators frequently have no trial experience. What should we think about the “permanent revision process”? Barrett quickly previews parts of the paper that she does not read.
In the end, the final irony is that the federal rules may be “going out with a wimper.”
Richard Marcus, “Not Dead Yet.”
The next speaker is Rick Marcus of Hastings. He begins by saying that he is between Robespierre and Rawls (referring to Barrett and Bone). He begins with points of agreement. Marcus expected to discuss a notion that has achieved some breadth—that the 1938 rules no longer serve a purpose. There has been lots of criticism of the federal rulemaking process. There is a lot of “negativity” in the room. (Marcus is referring to academic criticism of the federal rulemaking process, much of which comes from
Marcus suggests that the rulemaking process is not dead yet. (1) the big bang of 1938 is not likely to happen again, (2) much of the recent pessimism overstates the change from 1938, (3) almost inevitably, federal rulemaking has advantages over other forms of rulemaking, (4) a recent episode regarding e-discovery is an illustration.
Marcus opines that it is hard to overstate the amount of value that proceduralists assign to the big bang of 1938. Those rules transformed civil litigation. They were the most substantial reform in U.S. history. They influence procedural thinking in every court. They were transfixing to academics. The part of the big bang that receives the most attention is the emphasis on merits based adjudication. The revolutionary set of discovery innovations and emphasis on jury trial are the key features. That created a litigation juggernaut unknown before that and unknown in the rest of the world. That sort of thing doesn’t happen.
Marcus then suggests that the big bang is unlikely to be repeated. One way of looking at the big bang is to view it as a the bible, which should remain unchanged. The rules are there; judicial interpretation is the way to solve interstitial problems. Relying on judicial interpretation might even have been the way to go 50 years ago.
The development of rulemaking led to the 1966 revisions and 1970 discovery reforms. Marcus suggests that 1970 was the apogee of the “liberal ethos.” The amendments of 1970 enabled what Marcus characterizes as “litigation juggernauts.” These huge public interest cases were "a big difference from the way things were 20 or 30 years ago." These developments were not well received by everyone, including the rest of the world. The ALI recently promulgated transnational rules on procedure, and it does not include jury trial or the kind of discovery we have in this country or notice pleading. On the domestic front, there was a reaction. In large part, it came from defendants. In the 1970s, that concern became prominent. The rules have been changed several times since the early 70s.
The recurrent tenor of academic commentary on these changes has been exceedingly negative. One comment has been processed based—that the process has become political. The process has certainly become more open. The advisory committee has reached out to lawyers and others. This openness is and can be a good thing. Smoke filled rooms are not necessarily the best place do things. The real critique has been of the consequences of this reform. There has been a retreat from the liberal apogee. The rights must be “pushed to the max.” It is not difficult to recognize that somewhere there must be stopping points.
Marcus then suggested that those who are upset with amendments to the rules tend to focus on the wrong things and misjudge the things on which they focus. In 1993, there was a huge tumult about initial disclosure. There was a local opt-out. Congress almost (within one vote) passed legislation that would take that out. But that was not the real big deal of 1993. The big deal was expert discovery. Another example, in 1998-2000, there was a revision in the scope of discovery. The revision was much criticized, but it was much ado about almost nothing. Tom Rowe spoke vigorously against the change, but it didn’t change much. The really important change was to reimpose national uniformity on initial disclosure. In fact, there hasn’t been a retreat from the cover vision of the liberal ethos.
What are the alternatives? Supreme Court interpretation or Congress? Marcus quickly suggests that these alternatives might be worse than the rulemaking process.
Marcus then argues that the federal rulemaking system has structural advantages over the alternative processes for procedural reform. You can read much of what has been written to suggest that the rulemaking process is in its death throes, but Marcus doesn’t think so. It is the only national rulemaking process. States continue to follow the federal rule. For example, California is following the “Class Action Fairness Act” provisions on coupon settlements. Also, the federal court system has a support apparatus without equal. Moreover, there is federal judicial center research division, which provides the best empirical information.
Finally, Marcus turns to e-discovery. Law professors hasn’t paid a lot of attention. In 2009, the amount spent on e-discovery nonalwyer vendors will total four billion dollars. Eleven years ago, we got the process that lead to the recent rule changes.
The rulemaking process is not dead, and the rules are where the action is.
Bob Bone, “Making Effective Rules: The Need for Procedure Theory.”
Next up is Bob Bone from Boston University. Bone is here to say that the rulemaking process should “change”. (He is playing off Obama's "change" speech after his victory in the Iowa caucuses the night before.")
Bone's thesis is that effective rulemaking depends at least as much on having a coherent normative theory of procedure. Many proceduralists are quick to blame rulemaking failures on lack of empirical knowledge. But we also need better theory. We need to know what makes a federal rule good. The advisory committee has an important role to play. But it needs to adopt a more systematic approach that draws normative principles from the core features of procedure, and offers normative justification. The committee is in a good position to do this. It has the independence and resources.
Bone begins with some historical context. Bone counts three periods of procedural reform. The first period started in the 1840 with the adoption of the Field Code. The second period ended in the 1938 rules. The third period started in the 1970s and continues today. There is an important difference between the earlier periods and the current period. The earlier periods were characterized on agreement about what was wrong and what should be done. Today, there is no normative consensus. There is no agreement about problems or solutions. The code reform movement was influenced by the rise of legal formalism. It had a sense of common purpose and shared values. The critique of procedural technical was related to the critique of formalism and the rise of legal instrumentalism. It was a big bang that had implications for intellectual life, far beyond law.
The principle that that procedure should find facts accurately and reach just substantive results. Judges and lawyers were the technical experts that could best design the system to reach these goals. Procedures should be transsubstantive. By the 1970s, procedureal engineering was seen a substantive, and neutrality was questioned. One particularly striking feature is the lack of agreement on values and goals.
The absence of agreement on norms, places an emphasis on consent (or consensus). And there is a tendency to adopt general rules with vague standards that leave the difficult decisions to trial judges. This is related to the preference of the rules committee for consensus-based rulemaking. Consensus rulemaking has advantages, but it pushes towards highly general rules that leave the difficult issues to the discretion of trial judges. Reliance on case-specific discretion might be sensible if we believed that procedure was technical, but we don’t believe that. Not all of the rules suffer from this problem, but some of the most significant rules do, e.g. the class action settlement rule.
The first normative issue is specifying the relationship between procedure and substantive law. At the outset, one might worry that the advisory committee cannot resolve normative issues without an objective method. But reasoned argument can do much. Bone suggests that what is needed is a focus on the norms that best “fit and justify” the rules. What the committee should do is determine, rule-by-rule, what the normative assumptions of the rules are. We need to know what is optimal to know what price we are paying for compromise.
We know that procedural rules have substantive effects. The central question is what role substance plays in justifying procedural rules. The 1938 process assumed that there was no role. That view is no longer viable. There are two different ways to evaluate outcomes: (1) the rights approach, and (2) the policy approach. It might seem obvious that the rulemakers should use the rights approach, but it is not so simple. What is one to do when the legal right guarantees compensation for injury, but it is impossible to do so. One could ignore that problem & just seek theoretically correct formal judgments, but this would not be acceptable. Should we try to satisfy the legal rights of as many litigants as possible or to provide a minimally adequate level of compensation for everyone. Answering this question requires attention to the substantive policies.
For a substantive right to have authority, there must be willingness to enforce rights even when it is costly. This requires that there be procedural rights. But because perfect accuracy is impossible, we aim at optimal accuracy, which requires a balance of costs and benefits. But this threatens to undermine the idea of procedural rights as trumps. Similarly, when we deal with error costs, the legal rights proponents must look at the underlying policy to determine how error costs should be allocated.
This implies that we need to give up on the idea of transsubstantivity. The rules enabling act should be interpreted to focus on justifications, e.g. error costs.
Settlement matters as much a judgment when assessing accuracy. Settlements effect incentives as much as judgment. Consent does not justify settlements if they result from procedural flaws. Settlement quality may trade off against judgment quality. This suggests we may need to strike a balance. We need to consider impacts on pre-trial settlements.
Compared to what? Assessment of procedure always requires that we ask what the alternative is. For example, if we don’t have class actions, there will be mass inventory settlements. Bone is already overtime, and he wraps up his presentation.
Questions and Comments from the Floor
Bill Richman from Toledo asks the first question. We might see rulemaking as skirmishes between American Trial Lawyers Association and the Chamber of Commerce. It is possible to see procedure as a contest over procedural justice. So what effect might National Health Insurance have on procedural reform. Marcus answers, suggesting that the influence on federal litigation would be limited. Perschbacher suggests that the likelihood of health reform may be low & that federal courts will likely get as much business even if it is effectuated.
Steve Burbank suggests that one view of procedure today is a reassessment of whether we have succeeded in opening the courthouse door. Other countries are now considering opening the courthouse door. In many of these countries, the total responsibility for the decision rests with legislature. We are closing the courthouse door, but not considering the alternatives. Marcus suggests that Burbank is right that the trends in some other countries are going in the opposite direction as ours—but this may be moving from opposite poles towards the center (or common middle point). There are developments in several countries that are consistent with this general description of what is going on. Marcus suggest that explicit consideration is impractical. Bone suggests that the lack of social insurance is relevant to procedural reform.
The session was not quite over when I had to leave to make an appointment.
Just as I was leaving, Linda Mullenix asked Bone about realism of his suggestion, given that the genie of political, interest-group based rulemaking is already out of the bottle. Mullenix is certainly right that as a practical matter, it will be difficult to reemphasize principle, but as Bone pointed out, there may be viable strategies for focusing the discussion and debate on reasons of principle and public good.
This was really a marvelous session, with interesting and well-developed papers. Of course, it should come as now surprise that I found Bob Bone's emphasis on the need for normative theory especially congenial.