Rules Enabling Act

Abstract: This book contains perspectives of world-renowned scholars from the fields of law, economics, and political science about the relationship between law and norms. The authors take different approaches by using a wide variety of perspectives from law, legal history, neoclassical economics, new institutional economics, game theory, political science, cognitive science, and philosophy. The essays examine the relationship between norms and the law in four different contexts. Part One consists of essays that use the perspectives of cognitive science and behavioral economics to analyze norms that influence the law. In Part Two, the authors use three different types of common property to examine cooperative norms. Part Three contains essays that deal with the constraints imposed by norms on the judiciary. Finally, Part Four examines the influence formal law has on norms.

Abstract: The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench private enforcement, particularly in the last decade. The Federal Rules of Civil Procedure became for a brief time the lawmaking territory in which a newly assertive institutional judiciary sought to forge instruments of retrenchment, but the ensuing controversies quickly animated interest groups and members of Congress who were protective of the procedural status quo to press successfully for changes in the Enabling Act process that limited rulemakers’ capacity to change the Federal Rules. Rulemaking is not, however, the only way that the judiciary can influence private enforcement. Federal Rules afford ample room for interpretation, and they can be effectively amended by the Supreme Court outside the Enabling Act process. Empirical analysis of the Court’s Federal Rules decisions confirms that, in this domain as well, the campaign to retrench private enforcement has had its greatest success in the courts. Indeed, it may be that the success experienced in the Supreme Court affected both the content and the zeal of the legislative campaign for civil litigation reform. Thus, although the issue of litigation reform in general, and procedure as a tool of litigation reform in particular, has been declining in Congress since the mid-1990s, it is at its highest level ever on the Court.

Abstract: Within the next few years, the Advisory Committee on Civil Rules will revise several provisions of the existing formal discovery rules, and probably will propose a new informal discovery rule. The purpose of these amendments is to address once again the problems of discovery abuse by reducing the need and expense of formal discovery. The professional torpor in the civil rulemaking process is now about to change. In 1988 Congress passed the Judicial Improvements and Access to Justice Act, an omnibus bill incorporating numerous modifications into the procedural rules. One of the reforms in this legislation is a provision permitting greater public access to the civil rulemaking processes of the Advisory Committees. In essence, what previously had gone on behind closed doors is now open to enhanced public participation and scrutiny at the earliest stages of judicial rule formation. Participatory democracy now is emerging in the rulemaking process. This minor shift in process has gone largely unnoticed, except by a small group of procedural inside players. Yet the implications of this change may prove more dramatic than its congressional drafters anticipated. American pluralistic theory proceeds on the premise that participatory democracy is a good thing, from which one could infer that it is impossible to have too much of a good thing. The ultimate issue raised by the recent rulemaking reform, however, is an old one: who should make the rules? While imbued with imposing philosophical overtones, the problem of procedural rulemaking is also rife with complex subsidiary issues. Is judicial rulemaking really a “legislative” function and, if so, should rule-drafting then be subject to the full-dress legislative process, including witness hearings and interest group lobbying? Who should be heard and when? What does it mean to be “heard” in the rule-drafting process? Does it matter if the judicial rulemaking process becomes politicized? Has the judicial rulemaking process ever not been politicized?The purpose of this Article is twofold. First, the Article describes the new proposed informal discovery rule and its genesis. As a departure from existing civil discovery practice, this proposed rule deserves explanation and analysis contemporaneous with its promulgation. Second, and perhaps more importantly, this Article describes the rule-drafting process involved in creating the proposed informal discovery rule. The purpose of this discussion is to focus attention on the increased politicization of the civil rulemaking process and to assess the benefits and dangers involved in politicization.This Article has three theses. First, partisan law reformers have abandoned the judicial arena as the forum for achieving social change, and instead are focusing legal reform efforts on the rules and the rulemaking process. Sensing the demise of judicial activism, social reformists have shifted strategy to the rulemaking process. This tactical repositioning is interesting because it reflects a belief on the part of many partisan advocates that all substantive law is procedurally driven. As every five-year-old knows, the kid who gets to make the rules of the game has the greatest chance of winning. If this is what this shift signals, then the Advisory Committee faces increased challenges to its rule reform efforts that result in procedural rules that expand, modify, or amend the substantive law, as prohibited by the Rules Enabling Act. Second, opening the rulemaking process at the earliest stages of rule promulgation will politicize the rulemaking process as never before, with perhaps worrisome consequences. Either the Advisory Committee will create vacuous, ineffective rules that are the result of political compromise, or the Committee will fail to effectuate any rule reform, becoming bogged down in endless stalemate, delay, and legislative paralysis. Even more troubling, the Committee in the future may face charges of unresponsive rulemaking if it fails to consider various new constituent concerns.Third, the inevitable politicization of the Civil Rules Advisory Committee foreshadows the decline of that body's role in procedural rule-drafting. The partisan rule reformers will realize quickly that the Advisory Committee, by its nature, is an ineffectual forum in which to lobby for rule reform. Not only is the Advisory Committee painfully slow, deliberative, and dull, but its Article III judges have little incentive to bend to political will. Hence, the partisan rule reformers eventually will abandon the Advisory Committee and take their causes to other rulemaking bodies, namely the congressional committees with federal rulemaking oversight. The demise of the influence of the Advisory Committee in judicial rulemaking will place procedural reform in Congress's hands. What cannot be accomplished in the Advisory Committee — effective legislative lobbying — will be accomplished quite effectively in congressional committees. There, the full brunt of participatory democracy will come to bear in the rulemaking process. The questions, of course, are whether it is desirable for congressional committees to draft procedural rules and for current legislative processes to inform procedural rules.This Article discusses these three theses in three sections. Part I first describes the provisions of the proposed informal discovery rule. Next, it discusses the basis for the proposed rule, as well as experience with similar informal discovery rules. Part II then examines the criticism and opposition to the proposed informal discovery rule as an illustration of the nascent politicization of the drafting process and the sources of this politicization. Finally, Part III explores the broad questions of participatory rulemaking and implications for the future of the traditional judicial rulemaking bodies.This Article, then, contrasts abstract theories of rulemaking with the political realities of legislative politics. In essence, what is being played out is a contemporary version of Jean Renoir's classic movie, The Rules of the Game. There, the brutalities of World War I caused the remaining French nobility to witness the demise of their genteel, civilized world. The Advisory Committee has enjoyed this aura of the Old Guard — of genteel, deliberative rulemaking. Now, the rules of the game are changing and the question remains open whether the Advisory Committee is destined to go the way of the French aristocracy.

Abstract: In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for injury and/or to enable implementation of important social norms through private enforcement; (3) they side-step not only congressional review but the entire rulemaking process that Congress prescribed, including multiple steps designed to facilitate broad public participation, and (4) they reward the lawlessness of lower courts that had ignored prior Court precedent proscribing fact-pleading requirements imposed by judicial decision with comparable lawlessness (and reportedly have spurred another cycle of lawlessness in district courts that have ignored them). We then suggest some remedial measures that might restore a realistic prospect of trial, a number of which would depart from the norm of trans-substantive procedure. We propose that the rulemakers develop a separate track for simple cases – a category that would not include cases for which there is objective evidence of congressional reliance on private enforcement -- that would employ bright-line rules permitting very limited discovery and virtually no case management. Recognizing that document discovery presents the most difficult reform challenge, we suggest a rule requiring that document requests in simple cases be specific. For discovery in complex cases, we stress the need for empirical study, particularly in light of the recent Federal Rule amendments concerning electronic discovery. We also suggest the development of discovery protocols by the stakeholders in substantive law litigation areas believed (or, in the event of additional empirical work, found) to involve disproportionate discovery. Finally, doubting that rule amendments could fix what is wrong with summary judgment today, we argue that courts should be given the resources necessary to allow judges to do what judges used to do. Believing that the current state of destructive friction between civil litigation and democracy is a product not just of inadequate resources, but also of the triumph of institutional and professional self-interest and both legislative and judicial politics, we contend that our citizens deserve better. The aspirations of our founders for trials in open court and jury trials are not obsolete, and neither is the duty of the judiciary, within constitutional limits, to respect clearly articulated statutory norms and clearly articulated legislative policy.