Document Type
Article
Publication Date
2015
Abstract
The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, the committee shifted toward being dominated by federal judges, that those appointments shifted in favor of judges appointed by Republican Presidents, that practitioner appointments shifted toward corporate and defense practitioners, and that the committee’s proposals became increasingly anti-plaintiff (and hence anti-private enforcement).
Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts -- in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules.
Keywords
Practice and procedure, courts, politics and ideology of the judiciary, separation of powers, opportunities and incentives for private enforcement, legislation, Federal Rules of Civil Procedure, SCOTUS, empirical research, Civil Rules Advisory Committee
Publication Title
Nevada Law Journal
Repository Citation
Burbank, Stephen B. and Farhang, Sean, "Federal Court Rulemaking and Litigation Reform: An Institutional Approach" (2015). All Faculty Scholarship. 1379.
https://scholarship.law.upenn.edu/faculty_scholarship/1379
Included in
Administrative Law Commons, American Politics Commons, Civil Procedure Commons, Courts Commons, Legislation Commons, Models and Methods Commons, Policy Design, Analysis, and Evaluation Commons, Public Administration Commons, Public Policy Commons
Publication Citation
15 Nev. L.J. 1559 (2015).