The fourth era of American civil procedure.

• Author: Subrin, Stephen N.
• Position: II. Deconstructing the Fourth Era C. Business and Political Responses through IV. Escaping the Fourth Era, with footnotes, p. 1867-1895

3. Business and Political Responses

   Beginning in the 1950s, and intensifying over the next thirty years, the business community, especially the insurance industry, responded with fury to the allegedly pro-plaintiff aspects of civil litigation. (155) Insurance companies spent $10 million in advertisements in Time, Newsweek, Sports Illustrated, and other publications attacking greedy plaintiffs and runaway juries. (156) The advertising campaign continued in the mid-1980s, with ads proclaiming "The Lawsuit Crisis is Bad for Babies" and "The Lawsuit Crisis is Penalizing High School Students." (157) The mass media likewise contemplated, "[w]hy [everybody is [s]uing [everybody." (158)

   This narrative, in turn, was integrated into the 1988 presidential campaign:

   Almost all the grievances that conservatives would advance against civil justice delivery in the United States found expression during the Bush-Quayle administration, culminating in a report from the President's Council on Competitiveness delineating obstacles to a competitive economy and outlining proposals for civil justice reform. (159) Ironically, the only direct legislative product of the Bush-Quayle attempt for reform of civil litigation in federal courts was then-Senator Biden's handiwork: the Civil Justice Reform Act of 1990. (160)

   With the election of a Republican majority in Congress in the 1994 midterm elections, Congressman Newt Gingrich became Speaker of the U.S. House of Representatives and the chief spokesperson for the conservative civil justice reform movement. (161) Newt Gingrich proposed a "Contract with America" that was signed by three hundred Republican legislators; the document criticized an overly-litigious society, and called for drastic legislative measures to restrict access to courts and deter plaintiffs from filing suit. (162) While the effort had rhetorical effect, it generated little legislation, (163) except for the Private Securities Litigation Reform Act of 1995, which created heightened pleading requirements and imposed automatic discovery stays in securities lawsuits. (164)

   Reformers painted a portrait of American civil litigation extrapolated from memorable anecdotes or isolated problems. (165) Setting aside much of its falsity, (166) this antilitigation narrative found and still enjoys traction. Demonizing plaintiffs, lawyers, juries, and the legal system has been an effective strategy for corporate America. Citizens, politicians, law students, lawyers, and judges have internalized the notion that the civil litigation process was (and still is) "out of control." (167)

4. Conservative Ideology

   Substantial segments of the population favor withdrawing the social safety net installed by the New Deal and the Great Society. (168) These individuals, who passionately believe in free market solutions, also despise the growth of tort law and the dozens of federal statutes granting private rights of action. (169) One might offer as something of a caricature that conservatives' "Plan A" was to dismantle the "welfare state" and its "socialist" policies. "Plan B" might have been to achieve, through amendments to procedural rules and procedural statutes, what was harder to achieve substantively. "Plan C" might have been to undermine the procedural platform upon which substantive rights rely, but to have done so through the back door--incrementally, through judicial decisions. (170) The fourth era demonstrates that Plan C worked. (171)

   During the 1960s and early 1970s, the concern of conservatives about the political, economic, and social condition of the country intensified. (172) They were especially frustrated by the liberal capture of law schools and public interest legal organizations. (173) Even when conservatives won at the voting booth, as they had in the Eisenhower, Nixon, and Reagan years, they felt stymied by federal judges who were educated by liberals. (174) As a countermovement, in the 1970s, conservatives founded the Pacific Legal Foundation; (175) and with the backing of conservative foundations in the 1980s, conservatives invested in their own public interest law firms and think tanks. (176) The anti-big government, anti-regulation, anti-judicial-expansion-of-rights, free-market ideology that animated the conservative legal movement was not unique to the United States. Daniel Yergen and Joseph Stanislaw explained in exquisite detail how the end of the Cold War and the defeat of Russian communism heralded a global attack on large government and regulation. (177)

   In 1981, a couple of brave conservative law students at the predominantly liberal Yale Law School decided that they needed a way to connect with other conservatives. (178) Antonin Scalia, then a professor at the University of Chicago Law School, put them in touch with similarly-minded law students there, and together these students planned the first conference of the Federalist Society, at Yale, in 1982. (179) Today, there are student chapters of the Federalist Society at every law school in America in addition to sixty-five lawyer chapters spread throughout the country and Europe. (180)

   Four of the five justices who constituted the majority in Iqbal were members of the Federalist Society. (181) Moreover, when conservatives become federal judges, they often invoke Federalist Society connections and acquaintances to find their judicial clerks. Federalist Society members then find their way into federal administrative agencies and into high positions in the executive branch. (182) The Federalist Society powers a revolving door between and among the executive and judicial branches, think tanks and law firms, and law school faculties. (183)

   Conservative ideology in law schools found a new energy resource with law and economics. Richard Posner's Economic Analysis of the Law, published in 1972, brought economic thought to bear on virtually every legal field. (184) The movement's emphasis on wealth maximization and efficiency fits easily into, and readily supported, the conservative agenda to reduce regulation and curtail civil litigation. (185)

   The Olin Foundation grew into a hundred-million dollar fund in the 1980s as a result of an inheritance given by the successful businessman John M. Olin. Its director, James Pierson, noted that the Federalist Society had given voice to conservative law students, observing that "[t]he Law and Economics thing now seemed like a way to work on the faculty side and the curriculum." (186) Pierson is candid about using law and economics as a conservative entry into the law school world:

   If you said to a dean that you wanted to fund conservative constitutional law, he would reject the idea out of hand. But if you said that you wanted to support law and economics, he would see that as a program with academic content and he would be much more open to the idea. Law and economics is neutral, but it has a philosophical thrust in the direction of free markets and limited government. That is, like many disciplines, it seems neutral but isn't in fact. (187) E. The Federal Judiciary

   Robert Bork was an avid supporter of the Federalist Society from its inception, and his jurisprudence was as aggressive as it was erudite. An AFL-CIO study released "during the [Supreme Court] confirmation controversy found that in seventeen of seventeen access cases in which the judges disagreed, [D.C. Circuit Judge Bork] voted to keep the plaintiff out of court." (188) His failed confirmation for the Supreme Court appointment in 1987 angered many conservatives and mobilized a very successful effort to stock the federal judiciary with conservatives. (189)

   Some of the attempts to constrict civil litigation took place through rulemaking at the Advisory Committee, Standing Committee, and Judicial Conference levels even before reaching the Supreme Court on the way to acceptance or rejection by Congress. (190) Generally speaking, the chairpersons and members of the key rulemaking committees are appointed by the Chief Justice; the last three Chief Justices have been appointed by Republican presidents. Since 1985, about eight of the thirteen members of the Advisory Committee have been members of the federal judiciary. (191) In contrast, the original Advisory Committee had no sitting judges and was composed of nine lawyers and five law professors. (192) Professor Stempel's research on the 2000 discovery amendments demonstrated how appointments to the Advisory Committee tended to be judges nominated by Republican presidents and lawyers with long-standing affiliations with the business community. (193) Records of the Advisory Committee meetings since 1970 reveal considerable sympathy to reform efforts that would (or did) restrict access to courts and limit discovery. (194)

   Ironically, at the same time that the fourth era was institutionalizing an anti-trial, anti-litigation, and anti-plaintiff bias, and even as these conservatives railed against administrative agencies, the federal judiciary itself was becoming more bureaucratic and more agency-like.

   [A] three-decade expansion program ... has resulted in the creation of a fourth tier within the federal judiciary, comprised of magistrate and bankruptcy judges. The workforce within the federal judiciary has in turn been augmented by the expansion of the aegis of the administrative judiciary. Together, magistrate, bankruptcy, and administrative judges shoulder a proportion of the federal docket numerically far larger than that of the life-tenured judiciary. (195) Moreover, judges can delegate a portion of their judicial duties to an expanding number of senior judges, law clerks, staff attorneys, and extents. (196) Federal judges today spend significant time supervising their staffs. As Judge Posner described in 1985, upon review of the astounding growth in the number of non-Article III employees in the federal judiciary, judges have become administrators instead of decision-makers. (197) He even predicted this...