Braking the rules: why state courts should not replicate amendments to the Federal Rules of Civil Procedure.

• Author: Subrin, Stephen N.

Contents Introduction I. The Lack of Uniformity A. Inter-District and Trans-Substantive Uniformity B. Intra-State and Inter-State Uniformity II. Additional Reasons Why Federal Procedural Amendments and Judicial Procedural Changes Should Not be Replicated by the States A. The Drafters: A Lack of Neutrality and Vision Skewed by Discovery in the "Big Case" B. The Differences Between State and Federal Civil Caseloads C. Ineffective and Unwise Amendments at the Federal Level D. Changes in Federal Civil Procedure Require Judicial Resources Not, Available in State Courts E. The State Courts Have Been Experimenting With Better Rules and Methods for Civil Litigation--and They Should Continue To Do So Conclusion: The High Stakes in the Question of Whether the State Courts Should Replicate Federal Procedure INTRODUCTION

We have criticized the amendments to the Federal Rules of Civil Procedure since the 1980s and the procedural changes made by United States Supreme Court decisions during the same period. (1) These amendments and changes, even if subtle and incremental, launched a new era--the Fourth Era in the grand history of American civil procedure. In this era, tragically, litigation is often perceived as a nuisance, trials are a mistake, and judicial case management is a catholicon.

In this Article, we turn our attention to state court procedure. States could follow their federal counterparts; indeed, the pursuit of uniformity can be instinctive. Yet this Article urges states to resist the siren song of uniformity in favor of more noble pursuits.

The occasion for this Article is the most recent wave of amendments to the Federal Rules which included (i) the abrogation of Rule 84 and the forms; and (ii) the incorporation of proportionality into the scope of discovery. Although these amendments, like many that preceded them, restrict litigants' access to court and also to evidence, it is not obvious that these amendments arc especially consequential. Such is the nature of incremental reforms that are significant only when viewed cumulatively and retrospectively. But Chief Justice Roberts described the amendments as effecting a "significant change, for both lawyers and judges, in the future conduct of civil trials." (2) Accordingly, this seems like an appropriate time to consider the extent to which states do and should replicate federal procedure.

One argument in favor of replication would exalt the quality of the federal amendment process. To be sure, federal procedural amendments go through a lengthy process that includes review by the Advisory Committee 011 Civil Rules, the Committee on Rules of Practice and Procedure (the "Standing Committee"), the Judicial Conference of the United States, the United States Supreme Court, and finally, the United States Congress. (3) These processes include not, only public hearings, but also periods during which the public is encouraged to submit comments and offer testimony. (4) Such a lengthy and costly process--one that would be difficult for states to duplicate--might fairly be assumed to result in high quality amendments that states should, in turn, replicate. Similarly, Supreme Court opinions are the product of deliberate and solemn processes. Procedural and other matters that are resolved by the Supreme Court have already been litigated at trial and appellate courts, and Supreme Court cases are typically briefed and argued by expert advocates. Allowing interest groups to file amicus briefs further ensures a breadth and depth of judicial perspective. (5)

Yet the quality of the federal rulemaking and decision-making processes is not a persuasive justification for states to replicate the federal model. The supposed superiority of these federal processes is, in fact, suspect. (6) Twenty years ago the process of federal rulemaking was under such intense criticism that the Standing Committee itself commissioned a self-study of the rulemaking process. (7) Recently, Professor Richard Freer chronicled the persistence of many of those same criticisms, and identified new critiques, in his article, The Continuing Gloom About Federal Judicial Rulemaking. (8) Observers are "gloomy" for different and even apparently contradictory reasons: the rules committee acts in haste and is too slow; the committee fails to lead and innovate on things that matter, and engages in irresponsible experiments; the committee is obsessed with trivial wordsmithing and is dangerously politicized. (9) Unfortunately, these oppositional pairs of criticism do not cancel each other out; instead, both halves are accurate, depending on the year and the specific reform at issue. In the Conclusion. this Article rebuts any perception or presumption that any product of the federal rulemaking process is necessarily enlightened and prudent.

Interpretations of procedural changes effected by Supreme Court decisions are also suspect. Although recent empirical scholarship advises skepticism about the role of ideology at the trial court level, there are "demonstrated political effects in Supreme Court decision-making." (10) Accordingly, a state cannot replicate the Court's changes to procedural law for its own jurisprudence without also endorsing the ideology that may be embedded in the reform. Of course, a state might share the ideology and might desire the reform's effect, but replication would not be because of the superior quality of the decision-making by the Supreme Court. Replication would require a policy choice, and therefore, hopefully, a policy debate.

Even if the rigor and wisdom of the amendment process is an insufficient reason for states to replicate their federal counterpart, one might fairly suggest that uniformity for its own sake--is reason enough. Yet again we would disagree. To be sure, the idea of procedural uniformity is seductive. Indeed, the idea is so deeply embedded in our thoughts that many who advocate for uniformity find it difficult or unnecessary to explain why it is thought to be good as if it were some excellence in itself. (11)

Whether because of the lure of simplicity, the appearance of neutrality, the likeness to science, the feel of efficiency, the imprimatur of professionalism or some combination of these, the norm of procedural uniformity enjoys virtually universal approval. Thus, it should come as no surprise that the rhetoric of uniformity is both pervasive and predominant in the discourse of procedural reform. (12) For example, procedural uniformity was a central theme of the reform that led ultimately to the promulgation of the original Federal Rules of Civil Procedure. (13)

Part of the drafters' promise of uniformity was the contemplated adoption by states of the federal model. The Federal Rules were, after all, "one of the greatest contributions to the free and unhampered administration of law and justice ever struck off by any group of men since the dawn of civilized law." (14) Further,

[t]hat state which tries to live unto itself will suffer, if it does not perish.... [W]e are all for one and one for all.... [A] simple, scientific, correlated system of rules, such as would be prepared and promulgated by the Supreme Court of the United States, would prove a model that would, for reasons of convenience as well as of principle, be adopted by the states. (15) Replication by states of the Federal Rules would streamline both the teaching and the practice of procedure. By mastering one set of procedural rules nascent lawyers would be prepared to practice in federal and state courts. (16) But, most states did not replicate the Federal Rules. And as this Article explores more fully in Part II, even those states that replicated the original Federal Rules have not kept pace with all of the amendments.

Part II also explores other dimensions of uniformity. Another supposed virtue of the Federal Rules of Civil Procedure was both inter-district, and trans-substantive uniformity: the same procedural rules would apply in all federal courts and to all types of substantive actions. But as so often happens in life, when dreams or reforms confront reality, the outcome falls short of the expectation.

Procedural uniformity under the Federal Rules regime has unraveled at every level, not least because the generality of the rules ensured, in Professor Burbank's apt, description of trans-substantive procedure, that there would be uniformity in only "the most trivial sense." (17) Specifically, judicial discretion and attorney latitude reigned, undermining any meaningful role for the Federal Rules in a quest for uniformity. (18) Under these circumstances it would be ironic--even paradoxical--for a state to replicate the federal rules for the sake of uniformity when the adopted text is so fluid and indeterminate that it cannot maintain uniformity even with itself.

Of course, the Federal Rules and their amendments could be the product of a flawed rulemaking process, fail to deliver on the promise of uniformity, and yet still be compelling content that is suitable for adoption by the states. But it turns out that proponents of replication at the state level would have to make a lot of assumptions that turn out not to be true, namely that:

* the number, the substantive mix, and the stakes of federal and state caseloads, respectively, are the same;

* the state courts have the judicial resources that federal procedure pre-supposes;

* the litigants in state courts can afford federal practice;

* the federal procedural amendments, whether by actual amendment or judicial decree, are working well for most cases;

* the drastic diminution of trials and juries in federal courts are salutary for our democracy; and

* state court procedural experimentation should be discouraged.

The Conclusion reveals the misguided nature of these assumptions. This Article will give examples of the mismatch of the federal amendments for the state court caseload.

The Conclusion ends with a question for state court judges...