Civil Procedure in United States Law

From Oxford Encyclopedia of  Legal History (2005 draft to be published in 2008)

American civil procedure has often been shaped to encourage citizens to bring grievances to the courthouse.  That purpose was unknown to the antecedent colonial government, and distinguishes it from most comparable systems.

English Sources: The Right to Trial by Jury

One English institution surviving revolution was the right to jury trial in civil cases, a right vigorously observed in America.  It evolved in England after the papal decree of 1215 forbade priests to participate in trial by ordeal.  Itinerant common law courts established by Norman kings to resolve disputes among Saxon subjects devised juries to deflect the odium of unwelcome decisions from themselves to the Saxon communities where trials were conducted.

The institution was modified over time.  Where early jurors decided cases on personal knowledge of the dispute, there was by the 18th century an expectation that verdicts would be made unanimously by a jury of twelve deliberating on evidence and arguments presented by parties and instructions on the law by a judge.  The twelve were chosen from a list of local citizens of good repute.  Those having prior knowledge of the parties or the dispute were dismissed for cause and parties were permitted to challenge a limited number of others peremptorily.

In this form, civil jury trial served in colonial America to allay mistrust of royal judges.  Entrenched in colonial governance, the right was expressed in the constitution of every new state.  That the proposed federal Constitution made no provision for it was a primary objection by those opposing ratification.  It was ratified only after amendment to cure the lack was accepted.

Except in a few states, American courts recognized limitations on the right retained from the English practice.  There had been no right to trial by jury in the Court of Chancery or other special courts sitting at Westminster, in part because they had no access to jurors from communities where disputes arose.  Adhering to that tradition, there was not a right to jury trial in admiralty proceedings, nor in proceedings involving a divorce or the probate of a will, nor when the remedy sought was of a type available in England only �in Equity,� i.e., in the Court of Chancery.  The distinctive characteristic of such remedies was that they entailed a direct order to a party whose disobedience would result in punishment for contempt of court.  In contrast, the judgment of a law court ordered a local sheriff to seize either property or, if need be, the person of a debtor to be imprisoned until a monetary obligation was satisfied.

Trial by jury in 18th century English practice brought with it two other features.  One was the adversary tradition minimizing the role of the judge and enlarging the role of counsel.  With rare exception, it is exclusively the role of the parties or their lawyers to adduce evidence, while the judge�s role is generally limited to ruling on requests or motions, instructing the jury on the law, and making findings on the evidence when there is no jury.

The other enduring feature of jury trial is the oral presentation of evidence.  Literacy of jurors was not assumed.  Documentary proof was therefore considered only if a live witness was available to authenticate and present it as confirmation of his oral testimony.  Associated with these traditions was the right of counsel in the presence of the court to cross-examine any witness presented by an adversary.

Also associated with the jury was a presumption against discontinuity of trials, needed to hold a jury together and maintain its attention.  That need caused a chronic risk of unfair surprise at trial, for a party confronted by unexpected evidence could not be allowed a prolonged recess to seek rebuttal evidence.

The Post-Revolutionary Period

Mistrust of judges was not relaxed by departure of the royal judiciary.  The remnant American legal profession was in disarray, some of its members having joined the royal judges in flight.  Few trained lawyers were available to fill judicial offices and they were suspected of political biases.  In New Hampshire, a farmer becoming chief justice disavowed consideration of legal texts, promising to decide cases in accordance with sound moral values.

Deprofessionalization of law was reflected in the development of the American Rule denying to a prevailing party any compensation for the cost of legal fees unless specifically required by legislation.  This unusual rule was an early expression of the policy encouraging citizens to bring grievances to court.

Popular mistrust of judges was greatest with respect to those sitting in federal courts established in 1789.  The primary purpose of Congress in creating them was to protect English creditors from prejudices experienced in state courts and preventing collections of debts as promised in the peace treaty.  Federal judges were appointed, as the Constitution provided, by the President with the assent of the Senate.  They served, as did the royal judges in England, �for good behavior,� and might be expected to enforce the treaty.

Initially, federal courts were assigned jurisdiction only in admiralty cases and in cases between citizens of different states or between a citizen of a state and a foreign subject or citizen.  When their jurisdiction was based on diversity of citizenship, jurisdiction was concurrent with the courts of the states.  A plaintiff might choose either court, and if he chose a state court, the defendant could petition for removal to federal court.  This feature of the legal system added an extraordinary element of complexity to many legal matters.  Those planning transactions could not always foretell whether a dispute would be resolved in state or federal court.  Anticipating this problem, the federal courts were directed by Congress to apply state law as the substantive rules of decision in federal court in the absence of paramount federal legislation, and to employ the procedural law applicable to actions at law then employed in the local state courts.  The Supreme Court was authorized to make procedure rules for cases in admiralty or suits in Equity.

While enforcing state legislation, the federal judiciary interpreted for themselves the judge-made common law.  This practice was explained in 1842 by Justice Story in the noted case of Swift v. Tyson.  That case confirmed that the outcome of litigation could depend on whether the judgment was rendered in state or federal court.

Each state maintained its judiciary according to its scheme of organization, and their proceedings were conducted in accordance with its procedural laws as enacted by its legislatures.

The political role of American courts became obvious when the outgoing Federalist Congress and President Adams in 1800 created new federal judgeships and filled them with Federalists as an �ark of safety� against policies likely to be favored by the incoming party of President Jefferson.  The federal judiciary became a cockpit for political struggle.  For a time, it seemed that the Jeffersonians would impeach and remove many Federalist judges.  One was removed, but restraint was ultimately practiced lest the courts be politicized beyond redemption as professional institutions.

An innovation intended to diminish popular mistrust was the opinion of the court, a statement of reasons presented on behalf of a court as an explanation of its interpretation of the law.  This device was first employed by Chief Justice Marshall in 1801.  Its only precedent was the opinion of the Privy Council advising the monarch about legal matters.  English judges had opined only individually.  Marshall�s device was quickly adopted by courts in all states.  An effect was to confirm the political responsibility of courts.

In the states, the independence of the judiciary from partisan politics remained problematic.  In 1813, a Federalist legislature expelled all the Jeffersonians from the New Hampshire judiciary.  In New York, decisions of Federalist Chancellor Kent led to prolonged struggle and a reorganization of the courts in 1821.  Similar events occurred in almost every state.  One effect was to elevate support for the right to trial by jury in civil cases, for jurors were likely to be more independent of partisan politics because they held office only momentarily, could have no ambitions, and were almost invulnerable to corruption.

The Age of Jackson

The concern for judicial independence led to the practice of electing judges, an institution that abides in some form in the constitutions of most states.  This reform was explained as necessary to assure the independence of the judiciary from domination by political forces.

The election of judges was but one of the reforms initiated by political leaders committed to �Equal Rights,� a slogan of Democrats led by President Jackson.  One feature of their egalitarianism was protection of debtors.  Imprisonment for debt was abolished; sheriffs could execute money judgments only by seizing and selling property of the debtor, and some property was exempt from such execution.  Because it seemingly lacked sympathy for debtors� relief, the supreme court of Kentucky was in 1824 abolished by its Democratic legislature.

No less important to advocates of Equal Rights was the right of access to the courthouse.  One step was deregulation of the legal profession in most states.  The 1851 constitution of Indiana affirmed the constitutional right of any citizen to practice law.  A related effort was codification making law comprehensible to literate citizens.

Among the more successful codifications was the simplification of civil procedure.  There were many arcane practices to eliminate.  In various ways, the courts of all states had adhered to obscure pleading practices known to English courts.  These descended from the forms of action.  A plaintiff seeking relief in a law court was required to purchase from the Chancery a writ authorizing the court to hear and decide a claim brought under a legal principle specified in the writ.  Each common law principle was thus associated with a specific writ or form.  A plaintiff was then also required to submit a written declaration of the facts he proposed to prove in support of that claim.  The sufficiency of the facts alleged to meet the requirements of the principle stated in the writ was a question of law raised by demurrer and decided by the judges.

American courts never required the purchase of a writ, but many did require claimants to specify the legal principle they sought to invoke by naming the appropriate form of action.  Equally antiquated was the practice of having different rules for �suits in Equity,� i.e., claims that would in English practice have been presented to the Court of Chancery.  The courts of most states adhered to that distinction and conducted suits in equity in a separate court or �on the equity side� of a law court.  These anachronisms rewarded knowledge possessed by few lawyers and impeded citizens seeking redress of wrongs.  They thus offended the notion of Equal Rights.

The leader of the movement for pleading reform was David Dudley Field, a Manhattan lawyer.  He first championed the election of judges at the 1846 state constitutional convention in New York, and then drafted and secured enactment in 1848 of a pleading code simplifying the role of lawyers and facilitating self-representation.  The key feature of code pleading was the parties� statements of facts they proposed to prove at trial.  No party was required in �fact pleading� to identify the legal text on which he relied.  It was, however, still possible to terminate a proceeding before trial by means of a demurrer questioning whether the plaintiff had stated facts constituting �a cause of action,� an issue often determined by reference to law embedded in the traditional forms of action.  It was also a feature of code pleading that no distinction was to be made between actions at law and suits in equity, law and equity thus being merged.  This Code was quickly replicated in many other states.

While these codes were largely egalitarian in purpose, their premise that courts can discern reality about past events and rationally apply legal texts to them and thereby encourage compliance with law, was one reflecting ideas of the Enlightenment and contemporaneous criticism of common law procedure in England leading to similar reforms there in 1873.

A chronic problem with fact pleading was the inclination of parties to be uninformative about evidence they planned to present at trial.  This resulted in an abundance of motion practice, as parties challenged the sufficiency of the details in the allegations of their adversaries.  And it failed to eliminate the chronic problem of surprise at trial.

The codes were not applicable to proceedings in federal courts because the act of 1792 required conformity on the law side to state practice as of 1789.  The Supreme Court first promulgated rules governing suits in Equity in 1822.  Amended from time to time, these rules adhered generally to practice in the English Court of Chancery.

Many states during this time also modified the jury trial by entitling lawyers to make their closing arguments after the judge had uttered his instructions.  The judge could then decide the case without a verdict only if there was a demurrer to the evidence, a motion challenging the legal sufficiency of an adversary�s proof but entitling the adversary to judgment if the demurrer was not sustained.

The Civil War Period

The struggle leading to Civil War had at least three effects on civil procedure.  The first, emerging in antebellum years, was enhancement of the role of the judge at trial.  This was caused by reluctance of northern juries to enforce rights of slave owners to recapture fugitives.  In obedience to law, judges (state and federal) tended increasingly to disregard verdicts when the evidence indisputably supported the claims of slave owners.  Until this custom developed, the practice had been for the judge to accept a verdict as the basis for judgment, or to order a new trial before a different jury if he thought the verdict clearly incorrect.  The distinction between issues of fact to be decided by a jury and issues of law to be decided by a judge was modified to empower judges.

Secondly, the Fourteenth Amendment to the Constitution ratified in 1868 in response to the War, forbade states to deprive persons of property without due process of law.  Its effect was to impose federal constitutional constraints on civil procedure in state courts.  An early application came in 1878 in Pennoyer v. Neff, when the Court held that Oregon had violated the constitutional standard by entering a default judgment against one who had not been served with a summons while present in Oregon.  The Court�s premise that a defendant�s presence in the state at the time of service was required for personal jurisdiction rested on an English rule derived from the practice of executing money judgments by imprisoning the debtor.  That remedy could not be supplied if the defendant were not within physical reach of the sheriff.  The ancient rule therefore required that a sheriff symbolically touch the defendant with a summons ordering him to appear before a proceeding could commence.

Thirdly, the war resulted in 1875 in enlarged civil jurisdiction for the federal judiciary.  In conformity with the Constitution, and for the purpose of enforcing laws enacted in part to effect Reconstruction of the former slave states, the federal jurisdiction was extended to civil cases arising under federal law.  This added further complexity to the interface between state and federal judiciaries.

Meanwhile, however, Congress in 1872 amended its judicial code to direct its courts to conform their procedure �as near as may be� to state practice dynamically, so that it conformed to changes in local practice.  This diminished the risk that outcomes would depend on whether cases were decided by a state or a federal court.  But adherence to this Conformity Act was irregular, federal judges tending to disregard local procedures they disapproved.

Industrialization

The laying of rails and development of a national economy brought other changes.  The dominant aims of reform were to afford greater predictability needed in making entrepreneurial decisions and better regulation of corporate enterprises seeking to exploit national markets.

First, there was an elevation of the technical competence of professionals, including lawyers.  States empowered their courts to regulate entry into the profession.

Second, there was further expansion of the role of judges in the conduct of trials.  The practices of directing verdicts or entering judgments notwithstanding verdicts displaced less effective methods of preventing jury nullification of the law.  This extended the trend set in motion in antebellum times in fugitive slave litigation.

Third, in many states, appellate review of the rulings of trial judges became more penetrating.  The time for appeal was generally shortened from a year or more to a month or two.  More accurate court reporting allowed the reviewing court to see better records of the proceedings below.  Intermediate appellate courts were established in populous states.  The United States Courts of Appeals were created in 1891.  One advocate of that reform declared it to be essential to reduce the �kingly power� of the federal judiciary.  One instance of such regal power was the frequent use by federal judges of their authority to issue injunctions preliminary to trial as a means of breaking strikes by industrial workers.  Such orders were made reviewable.

Fourth, these developments brought a growing body of law governing the conduct of trials.  This law of evidence reflected ancient customs systematically enforced through appellate review.  In 1904, John Henry Wigmore published the first edition of his extraordinary work, Evidence in Trials at Common LawHe was able to discern and enumerate many exceptions to the hearsay rule forbidding the use of testimony in forms frustrating the right of attorneys to cross-examine adverse witnesses.  Such rules could be enforced on appeal.

Fifth, it was increasingly recognized that civil litigation conducted by private lawyers was an important method of regulating business enterprise to deter misconduct.  This role was not new, but was enhanced by widespread acknowledgment of the right of plaintiffs to pay counsel from the proceeds of their judgments if won.  Like the American Rule, the contingent fee was an unusual feature, but common throughout the United States.  A contingent fee lawyer presenting a claim to a civil jury was seen by many to be more effective in regulating business than public officers vulnerable to political domination by those whom they were supposed to regulate.  The development was in part a response to the deregulation of the fees charged to prosperous clients.

Thus, Congress relied primarily on private enforcement when enacting regulatory laws in this era, such as the 1890 anti-trust law entitling prevailing plaintiffs to treble damages.  Many state legislatures also enacted regulatory laws with private enforcement in mind, while state courts made growing use of exemplary or punitive damages to reward �private attorneys general.�

Finally, in reaction to this increasingly visible political role of private plaintiffs, political interest groups took a growing interest in civil procedure.  In New York, they seemed to have fit the Field Code with scores of amendments giving special advantages to one group of litigants or another, so that the recodification enacted in 1876 was several times longer and far more complex than that enacted in 1848.

The Progressive Era

Those dominating American politics in the first decades of the 20th century generally united on court reforms presented as enhancements of the ability of individuals to bring grievances to court.  They were called to do so in a celebrated address by Roscoe Pound presented to the American Bar Association in 1905.

One reform pursued in many states was improvement of the competence of the judiciary through programs of �merit selection� reducing the roles of voters.  Non-partisan ballots were adopted in some states.  In others, initial appointments required approval of a presumably elite professional panel.  These reforms were widely resisted by those of a populist persuasion, and they were rarely applied to locally elected trial judges.

To protect procedural lawmaking from partisan subversion, Progressives sought to confer procedural rulemaking authority on the judiciary.  This was first done in England in 1873, and introduced in the United States in the Wyoming state constitution of 1890.  Its use in federal courts became an article of faith for the American Bar Association, a voluntary group founded in 1878.  Chief Justice Taft was the most vigorous exponent of federal rulemaking, but it was resisted by local bar associations fearing their subordination to a national elite.  In 1912, the Supreme Court did promulgate new Equity Rules to clarify and harmonize procedure in suits in equity in federal courts.  Congress in 1915 authorized the use of equitable defenses in proceedings at law, and the transfer of cases from the law side of a federal court to the equity side, or the reverse.

Chief Justice Taft succeeded in 1925 in securing enactment of a law requiring as a condition of a hearing in many appeals to his Court that it grant leave to appeal in the form of a writ of certiorari.  This was deemed necessary to protect the Court from an impossible workload.  The discretionary appeal was soon adopted by many highest state courts.  When fully extended, the effect was to liberate the high court from considering any question on which its members did not choose to opine.  This further exhibited the lawgiving role of high courts.  Taft also succeeded in acquiring new and extraordinary facilities for his Court in a building bearing on its entablature the procedural promise of Equal Justice Under Law.

Rulemaking power was at last conferred on the Supreme Court of the United States by the Rules Enabling Act of 1934.  In 1938 it promulgated the Federal Rules of Civil Procedure.  Those rules were soon substantially replicated in the procedural law of many states.

Also in 1938, the Court in Erie R. R. v. Tompkins, in a celebrated opinion by Justice Brandeis, overruled its 1842 decision in Swift v. Tyson, with Brandeis declaring it an unconstitutional trespass of the federal courts on state sovereignty.  The Court thus abandoned the federal common law developed over the previous century.

The new Civil Rules were crafted by a committee served by Charles Clark as Reporter.  He explained them as an extension of the Equity Rules of 1912 to apply to proceedings in actions at law.  Of primary importance were the new discovery rules.  They empowered lawyers in all civil actions to investigate past events and gather evidence that might be presented at trial, much as public officers might.  Thus, in any civil case, a lawyer might, with limited exceptions, examine the files of an adversary or inspect its place of business to search for evidence.  He might also require an adversary or a possible witness to submit to a pretrial deposition upon oral examination with the right of cross-examination before an official court reporter commissioned to make an official record of the examination.  He might also compel an adversary to respond to requests for admission or written interrogatories inquiring about his knowledge of past events or about his contentions in the case at hand.  And a plaintiff claiming personal injury could be compelled to undergo physical examination by a court-appointed physician.

Related to this reform was a relaxation of pleading requirements by eliminating the need to �state a cause of action.�  It would suffice if the plaintiff would �state a claim upon which relief could be granted.�  The pleadings were no longer the primary screening device.  Introduced was the summary judgment, an order precluding trial if the judge found, after the parties had pursued discovery, that there was no genuine issue of fact.

The discovery rules were transformative.  It is doubtful that Chief Justice Taft or many other advocates of the Rules Enabling Act would have approved the rules it produced.  Prospective defendants could seldom be confident of a plaintiff�s inability to get proof needed to expose wrongdoing.  Congress and state legislatures became even more inclined to privatize the enforcement of many laws, especially those regulating business.  This was evident in diverse fields including antitrust law, securities regulation, consumer protection, employment law and, later, environmental law.

A related novelty of the new rules was authorization to the court to hold a pretrial conference setting the agenda for trial.  The chronic risk of surprise at trial was reduced.  Also a feature were provisions for liberal joinder of claims and parties.  Old common law rules and provisions of the 19th century codes had been restrictive.  The new rules encouraged joinder in the hope that one lawsuit might displace many.

Not in the Rules, but accompanying liberal joinder was a shift in the law of judgments.  The doctrine of issue preclusion emerged to bind all parties to a lawsuit to findings of fact made by the court as these might bear on subsequent disputes, at least those between the same parties.  This was an important enlargement on conventional doctrine of claim preclusion forbidding relitigation of a dispute on which a final judgment has been entered.

In this era, the Court�s ruling in Pennoyer v. Neff came under increasing pressure.  If the states were to protect their citizens against harms caused by citizens of other states, they needed to exercise jurisdiction over them.  Business corporations were early required as a condition of the right to do business in a state to appoint an agent within its boundaries for receipt of service of process.  A firm doing business without such an agent was said to have appointed an officer of the state government to perform that role.  The presence requirement was thus satisfied by a legal fiction.  By stages, this fiction was extended to individuals engaged in activities resulting in foreseeable harms within the state in which they were sued.  Non-resident motorists involved in automobile accidents were among the first to be reached in this way.  The constitutional constraint imposed by Pennoyer was broadly relaxed in 1945 when the Court decided International Shoe Co. v. Washington, holding the defendant subject to jurisdiction of Washington where its products were retailed by shopkeepers acquiring title to them in Missouri.  The suit involved liability for unemployment insurance for independent contractors promoting the sale of the products in Washington on a commission basis.  The Court emphasized the defendant�s ability to foresee application of Washington�s laws and jurisdiction, and discounted the fact that the corporate defendant had never set foot in the state, even fictionally.  This put a virtual end to the use of the constitutional requirement of personal jurisdiction to impede private enforcement of state laws fairly applicable to transactions and events.  Some states amended their legislation to impose jurisdiction on any defendant within their constitutional reach.

The Cold War Era

The decades following World War II were a time for Americans to come together, diminishing distinctions of race, class, and ethnicity.  In part, this impulse was a response to the threats implicit in the Cold War.  Civil rights and civil liberties were greatly expanded, and the related political impulse was to enhance the availability of the democratic courthouse, not only to individuals with grievances, but to individuals or organizations seeking to advocate the interests of persons or groups other than themselves.

Concerns about racism led to reconstruction of civil juries to assure full representation of minorities.  Any vestiges of elitism in the jury selection process were called into constitutional question and were diminished by legislation placing all citizens on call for jury duty.  In addition, the Court held that even private parties using their statutory rights to strike jurors could not make their decisions on overtly racial grounds.  This reform of jury selection was partially undone by the Supreme Court itself.  In 1972, it held that a federal court could by local rule establish six-person civil juries.  Most then did so, thus magnifying the likelihood that particular juries would be unrepresentative of the communities from which they were selected.  This effect was enhanced by failure to diminish proportionally the number of challenges entitling each party to strike three jurors for unstated reasons.  The predictable consequence was to increase the frequency of erratic jury verdicts.  However, notwithstanding this change, it remained a rarity for a jury to render a verdict in a civil case with which the trial judge seriously disagreed.

Also reflecting the times was the extension in 1966 of the rule allowing class actions.  In part this was an accommodation of civil rights cases, but the rule was also modified to favor class actions seeking compensation to members of a numerous class whose individual claims would be too small to litigate.  Several federal consumer protection laws were enacted with explicit reliance on this rule.

And in this era, the Due Process Clause of the Fourteenth Amendment was invoked in a variety of cases.  The Supreme Court had taken note of the Clause in 1927 in holding that a state could not allow a civil case to be decided by a judge having a financial stake in the outcome.  The decisions in the 1960s and 1970s established the constitutional right to notice prior to adverse judicial action, the right to employ private counsel, and the right of access to court without payment of prohibitive filing fees.  Relatedly, the federal government through the Legal Services Corporation undertook to provide legal counsel for those unable to afford to hire a lawyer.

The Supreme Court, heartened by the response to its Civil Rules, moved on to promulgate Rules of Appellate Procedure in 1967 and Rules of Evidence in 1972.  Concerned that the latter might trespass on state sovereignty, Congress derailed the latter but enacted them with minor amendments in 1974.

Also in this era, civil litigation in federal courts was modified in response to what was perceived by the federal judiciary to be an overload of cases having lower likelihood of merit.  Much of the load was criminal litigation enhanced by the right to appointed counsel in felony cases, by the extended �war on drugs,� and by enhancement of the rights of convicts to question their convictions in habeas corpus proceedings.  Some of the perceived excess was caused by the exercise of the newly recognized civil rights, such as the rights of prisoners to challenge prison administrators and the rights of citizens to sue local governments for diverse allegations of misdeeds.  A growing number of these cases were presented without counsel, placing a greater burden on the judge.  This perception of overworked federal judges led to the creation of the office of magistrate, later redesignated as magistrate judge, an officer selected by judges and serving as subordinates to them.  Much pretrial litigation would be conducted by such officers, and with the consent of the parties, some trials would be conducted by them.

In the same vein, federal appeals courts introduced the practice of summary disposition of appeals.  A high percentage of civil appeals were decided without the argument and opinion that had been standard practice in all appellate courts.  The original mission of the opinion of the court to assure the public that judicial decisions are principled was sacrificed.  Unpublished opinions were sometimes made available to the parties, and it became an issue whether such opinions could be discovered and cited as authority in the court that rendered them.

A Time of Reaction

In the 1980s, as the Cold War subsided, the shared political impulse to diminish differences of class declined and efforts to assure citizens of access to a democratic courthouse were received with less favor.

One reaction was to promote settlements of disputes with diminished regard for the merits.  In some circumstances, this effort could be explained as a response to the efforts of lawyers paid by the hour to elevate the time spent in litigation, resulting in unjustified costs to parties and courts.  In the federal courts, judicial case management came into fashion, encouraging judges to provide parties and counsel with disincentives to prolong litigation.  Where it had long been thought wrong for a judge to suggest settlement of a civil case, it became in some minds professionally irresponsible not to do so.

Incidental to this initiative was the promulgation in 1983 of a rule directing federal judges to impose substantial monetary sanctions on lawyers who filed pleadings or motions that were not justifiable on the law or the facts.  In its 1983 form, the rule proved to be itself a source of much litigation.  In 1993, it was amended to provide a safe harbor for lawyers who withdrew a pleading or motion when its inadequacy was revealed to them.

Meanwhile, there was a movement favoring Alternative Dispute Resolution.  This had its origins in a meeting called by Chief Justice Warren Burger in 1976 to commemorate Roscoe Pound�s 1905 call for court reform.  It gained strength from a reaction of feminist lawyers against the adversary tradition and had special application to the resolution of family disputes.  There was also a widely shared belief that arbitration or mediation could save costs.

Business interests found that ADR clauses in standard form contracts with workers and consumers could in some circumstances be invoked to nullify their ability to pursue the role of the private attorney general enforcing regulatory public laws.  This was encouraged by a newly expansive reading of the Federal Arbitration Act of 1925 by the Supreme Court.

In 1986, the Court contributed a trilogy of decisions permitting more expansive use of summary judgment to terminate cases before trial, chiefly by allowing the judge to make inferences from evidence the parties propose to present at trial.  And beginning in 1991, it decided another trilogy of cases conferring on the trial judge the role of gatekeeper to scientific and engineering testimony to preclude use of what some had characterized as �junk science.�  Some plaintiffs experienced the exclusion of their expert witness followed by a summary judgment based on the insufficiency of their scientific evidence.  As a result of these decisions, it was harder to get cases to juries.  And beginning in 1994, the Court decided another series of cases invoking the Due Process Clause to limit the use of punitive damages as an instrument of private law enforcement.

Meanwhile, business interests sought tort law reform to diminish their exposure to liability.  When that was not forthcoming, procedural reforms were proposed as lesser alternatives.  Radical proposals were advanced in 1990 by a Presidential Commission on Competitiveness.  Congress responded with the Civil Justice Reform Act of 1990 directing federal courts to find and employ means to reduce cost and delay in civil litigation.  It established a five-year period for experimentation with local rules.  Some of these required lawyers to disclose some evidentiary material even before being asked.  These were said to threaten lawyer-client relations, but a version requiring advanced disclosure of material a party planned to use at trial appeared in the Federal Rules in 2001.  Amendments that year sought to restrain excessive use of discovery by parties tempted to impose unnecessary costs on their adversaries.  In 2003 came amendments to the class action rule intended to prevent its misuse.

All these developments responded to allegations of abuse of procedural rights conferred by earlier reforms.  Together, they signaled a reversal of the enduring trend of reforms seeking to make the American courthouse as accessible as possible to aggrieved citizens.

 

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