Civil Procedure and politics

Teaching.  I taught a course on Civil Procedure forty times, to about three thousand students.  For those to whom the subject is a mystery, I provide here a reference to an encyclopedia article depicting the historical evolution of American practice.  Civil Procedure in United States Law.  The course was always centered on the federal practice.  It reflected my sense that the Rules are a product of the Enlightenment that encourages us to believe that it is possible to apply legal principles to contested issues of fact and enables citizens to enforce many laws made in the public interest .  Teaching Civil Procedure: A Retrospective View.

I published a casebook in 1969.  Barbara Babcock joined me on the second edition.  I retired after the third edition, but the book is now in a fifth edition under her aegis. The present edition is presented as a third edition; it would be the sixth if I had remained at my post.  There are still here and there in the book words that I provided in a preliminary edition forty years ago.  That is a little spooky.  It is well done, at least otherwise, although I did not in my last teaching follow the order of the book precisely.

Law Reform and Rulemaking. While teaching that subject, I published numerous articles advocating reforms premised on the belief that the rules are an expression of the Enlightenment conviction that law can be correctly applied to discernible realities.  From 1985 to 1992, I served as Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the United States, and so was afforded an opportunity to influence the rulemaking process.  I was astonished when I received a call from Chief Justice Warren Burger offering he the opportunity to serve in that role.  It afforded me a chance to work with many members of the federal judiciary, including four chairmen: Frank Johnson, Joe Weis, John Grady, and Sam Pointer, all of whom I much admired.  However, in seven years as Reporter, I found myself in numerous substantial controversies.  In my time, the job was a cockpit. 

First. in 1985, Congressman Kastenmeier was leading an effort to limit the authority of the Judicial Conference to make rules of court; an issue on which the Judicial Conference had surrendered was the supersession clause authorizing the Court to write procedure rules that would be valid notwithstanding their inconsistency with earlier legislation.  At the direction of  Frank Johnson, I enlisted the help of Ben Civiletti, the former Attorney General, and he persuaded the Congress to back down on the issue. 

Second, numerous academics were proposing to make the Rules non-transsubstantive in the misguided belief that this would advance the ability of civil rights plaintiffs to enforce their claims; I was obliged to resist that idea on the ground that it would have put the rulemaking process into the political cockpit.  The New York Code of 1848 had been wrecked by special interest legislation and I saw numerous instances of efforts to secure rules changes for the benefit of proponents to become especially appreciative of the importance of judicial independence. 

Third, in 1990, Senator Biden led an effort to localize authority in district courts by enhancing their authority to make local rules.  I was obliged to resist that impulse in the belief that the system was complex enough as is without local variations.  Local conditions are almost never pertinent to procedural issues.  His legislation authorized local courts to promulgate plans to diminish cost and delay.  Some local courts, in search of something to do, adopted a draft rule I had circulated that proposed to supplement the discovery process with disclosure requirements.  As adopted in some local plans, it was a bad idea and conflicted with the national rules; we proposed a revision of the national rules to authorize local disclosure rules on limited conditions.  The Supreme Court promulgated our rule.  At that point, the ABA suddenly became ballistic at the idea of mandatory disclosures.  They got the House of Representatives to disapprove our rule by a vote of 385 to 0.  It then went to the Senate and was clearly doomed by the ABA lobbyists.  But the disapproval had to go through the Senate Judiciary Committee at a time when they were on a short calendar.  It needed committee unanimity, but that was denied when Senator Metzenbaum raised his hand.  So the rule I drafted became law by votes of 0-365 and 1-99.  That is real power!! I do not expect that anyone will ever equal my achievement in that respect.

Fourth was the heated problem of Rule 11 authorizing federal judges to punish lawyers for filing unwarranted claims.  Revision was needed to protect plaintiffs, especially individual civil rights plaintiffs, from misuse of the 1983 revision of the rule that directed courts to impose costs on those advancing claims or motions deemed to lack plausible merit. The 1983 version was well-intended and had significant support, but data confirmed that it had been misused and was having no visible benign effect.  So we negotiated a milder form of the rule against the enthusiastic support of some judges and many defense lawyers who were favored by the 1983 amendment.  I have had occasion to reflect upon that change.  A Reflection on Rulemaking.

Fifth, there was the re-write of Rule 4 (Summons).  This evoked resistance from the profession of process servers and from the Department of Justice that opposed our effort to make it easier to sue the United States.  Our draft of Rule 4 also authorized the court to impose unnecessary costs of service on the defendant.  This idea was borrowed from California and it works like a charm to reduce useless formalities.  It would have been especially useful in cases involving international defendants who would insist on service of process in a foreign language even though their officers were fluent in English.  But, lo and behold, the British Embassy came in at the last minute and persuaded the Supreme Court not to promulgate our rule on the ground that it violated a Hague Convention, which it did not, but the Court did not want to face the issue.  Maybe the time has come to reconsider that question; I still think we were right.

Sixth, we did a lot of work on Rule 56 (Summary Judgment) that came to nought.  We tried to be faithful to recent Supreme Court interpretations of the rule, and to accommodate some increase in the use of the rule but to constrain overuse, which seems in fact to have occurred since our efforts were brought to a halt.  The effort died in the Standing Committee that serves as broker between the Civil Rules Committee I served and the Supreme Court that we hoped would promulgate our draft.  The winning argument in the Standing Committee was that judge-made case law is better than any legislative text we might write.  I was not happy with that outcome.  The premise of the Rules Enabling Act of 1934, that continues to govern the Judicial Conference is that courts of first instance should be bound to adhere to pre-existing rules subject to legislative approval.  The Supreme Court itself has in its 2009 decision in the Iqbal case manifested its disinclination to respect  the texts of procedure rules, even those promulgated by it.  In 2009, the Court made its 1985 tinkering with Rule 56 seem modest.  It has taken upon itself the roles of the Advisory Committees, the Judicial Conference, and Congress to make procedural rules best serving the political aims of five Justices whose careers have confirmed in their minds the notion shared by many business interests that the discovery rules promulgated in 1938 are bad for business because they enable private citizens better to enforce their rights and public laws regulating business.

As Reporter, I repeatedly importuned the committee to restore the jury in civil cases to a membership of twelve.  That did not get out of committee in my time, but did soon after under the chairmanship of the late Richard Arnold.  Judge Arnold won in the Standing Committee but suffered defeat in the Judicial Conference.  The winning argument in that conference was that the district judges were resistant to the change.

This was enough controversy for one Reporter, and so I subsided from that role after the second round of rules I had drafted were promulgated and took effect.  Since then, I have occasionally been called to meetings to discuss further changes.  I reported on my experience as Reporter to a conference called by the Judicial Conference in May 2010.  I spoke ill of the Supreme Court's appropriation of  the roles of Congress and of the Judicial Conference and its rules committees. My presentation to the Conference is published in the Duke Law Journal .

There is still ample controversy about the Rules, especially in the arena of class actions.  With my ancient friends Roger Cramton and Jeffrey O�Connell, I joined in proposing a solution of sorts to the mass tort problem.  But no one seems attracted to our scheme.  I have also in recent years taken to reflection on the future of civil procedure as the system slowly assimilates modern technology.  Virtual Civil Litigation.    I have in recent years expressed skepticism about aggregate litigation, a practice now very much in vogue. At a meeting of Rules Committee fans at Chicago in 2003 I audaciously suggested the possible deletion of F.R.Civ.P. 23(b)(3) that authorizes aggregation of monetary claims.  There are serious conflicts of interest to be confronted in such litigation.  I am equally skeptical about the Class Action Farness Act of 2005, although it does serve to disable some of the atrocious proceedings that have been conducted in some state courts presuming to decide the rights of plaintiffs all over the world.  The asbestos litigation has been particularly instructive.  My essay on that subject was published in the Review of Litigation and  republished in India.  I here record my warm approval of the work of Martin Redish on the defects of the class action as it has evolved.

My present work in this field is entitled The Democratic Courthouse: Private Enforcement of Public Law.  The work is in draft.  It argues that the distinctive features of American civil procedure may have greater utility in the world of the 21st century than many business executives are willing to acknowledge.  My point is that private enforcement of public law is often indispensable, and may be crucial to international efforts to establish effective law dealing with corruption and environmental ruin.  I presented that view to a conference in Bremen in 2008.  I plan to complete the work in 2010. index.htm

My other published work on the rules governing civil litigation and on the rulemaking process include:

The Modern Utility of the Quasi in Rem Jurisdiction, 76 Harv. L. Rev. 303 (1962)

Substantive Interests and the Jurisdiction of State Courts, 66 Mich. L. Rev. 227 (1967) (with James A. Martin)

Discovery: An Overview of the Uses and Goals of Discovery in Hospital Liability Cases, in Hospital Liability Law (Inst. Cont. Leg. Ed. 1968)

Tax Assessors and Their Information, 10 Michigan Assessors 3 (1968)(with Michael Levy)

The Power of the District Judge, 3 Ga. L. Rev. 507 (1969)

Improving Procedures in the Decisional Process, 52 F.R.D. 51 (1971)

Book Review, Fish: The Politics of Federal Judicial Administration, 72 Mich. L. Rev. 628 (1974)

Current Developments in Judicial Administration, 80 F.R.D. 180 (1978)

Let the Tribunal Fit the Case - A Comment, 80 F.R.D. 180 (1978)

Civil Procedure and Alternative Dispute Resolution, 34 J. Leg. Ed. 298 (1984)

            republished in Civil Procedure Anthology (Levine, Doernberg & Nelken eds, 1998)

Toward a Federal Interlocutory Appeals Act, 47-3 Law & Contemp. Prob.165 (1984)

Book Review, Posner: The Federal Courts, 71 A.B.A. J. 160 (1985)

Trial by Jury, in 4 Ency. of the American Constitution (McMillan 1986) (Levy, Karst & Mahoney, eds.)

The Function of the Civil Appeal: A Late Century View, 1978 S.Car.L. Rev. 411 (1987)

Continuing Work on the Civil Rules: Summons, 63 Notre Dame L.Rev. 733 (1988)

Statement re Deletion of Supersession Provision from Rules Enabling Act, Senate Judiciary Committee Hearings (1988)

Exorcising the Bogy of Non-Transsubstantive Rules and Making Rules to Dispose of Manifestly Unfounded Assertions, 137 U.Pa.L.Rev 2067 (1989)

"Substance" and "Procedure" in the Rules Enabling Act, 1989 Duke L. J. 281

Foreword, Empirical Studies of Civil Procedure, 51-3 Law & Contemp. Prob. 1 (1989)

The New Order in Judicial Rulemaking, 73 Judicature 131 (1991)

How We Got Here and Where We Are Headed, in Revolutionary Changes in Practice Under The New Federal Rules of Civil Procedure (M. Aspen & J. Solovy eds., 1994)

Our Courts Need Friends: How Rule 26 Came To Be, 156 F. R. D. 295 (1994)

Reflections on the Interface of Treaties and Rules of Procedure: Time for Federal Long-Arm Jurisdiction, 57-3 Law & Contemp. Prob. 153 (1994) (with Dickson Phillips)

ADR and Future Adjudication: A Primer on Dispute Resolution, 15 Rev. of Litigation 1 (1996) reprinted  in 31 International Society of Barristers Quarterly 362 (1996)

A New Confederacy? Disunionism in the Federal Courts, 45 Duke L. J. 929 (1996)

The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass Tort Settlements Under Federal Rules 23, 39 Ariz. L. Rev. 461 (1997) (with Derek Apanovitch)

Renovating Discovery, 49 Ala. L. Rev. 51 (1997)

Remarks on Discovery Reform, 39 B. C. L. Rev. 809 (1998)

Recent Efforts to Change Discovery Rules: Do They Advance the Purposes of Discovery? in Controversies Surrounding Discovery and Its Effects on the Courts at 51 (Roscoe Pound Institute, 1999)

A Proposal for a Proceeding in the Nature of A Bill of Peace to Determine Scientific Issues Recurring in Civil Litigation (with Cramton and O�Connell) in Mass Torts Working Group of Judicial Conference of the United States, Conference on Mass Torts (1999)

Civil Procedure in United States Law, for Encyclopedia of Legal History (to be published by Oxford University Press 2008)

Foreign Plaintiffs in U.S. Courts: Private Enforcement of Public Law, 9 Waseda J. Comp. L. 149 (2007)

Civil Procedure to Enforce Transnational Rights, Proceedings of 2006 Conference on Civil Procedure Code, University of Ghent (2008)

Law and Transnational Corruption: Globalizing Lincoln�s Law, to be published in L&CP (2007)

Asbestos Lessons,  25 Review of Litigation 1170 (2007), (republished in Personal Injury Claims , A. Sabitha ed., Punjagutta 2008

Law and Transnational Corruption: Is There A Need for Lincoln�s Law Abroad? in The Civil Consequences of Corruption (Olaf Meyer ed., Berlin 2008)

Politics and Civil Procedure Rulemaking, 60 Duke L. J. 597 2010).


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