Litigation reform: an institutional approach.

• Author: Burbank, Stephen B.
• Position: Introduction through III. The Supreme Court's Response, p. 1543-1582 - Symposium: The Federal Rules of Civil Procedure at 75

INTRODUCTION I. THE RISE OF THE LITIGATION STATE II. THE LEGISLATIVE PROJECT OF LITIGATION REFORM A. The Reagan Administration B. Litigation Reform Proposals in Congress C. The Failure of the Legislative Project of Litigation Reform D. The Alternative Pathway of Courts III. THE SUPREME COURT'S RESPONSE A. The Existing Literature B. The Justices' Votes in Private Enforcement Cases C. Why the Court Succeeded Where Republicans in the Political Branches Failed IV. THE ROLE OF PROCEDURE IN THE MOBILIZATION OR DEMOBILIZATION OF CIVIL LITIGATION A. The Federal Rules, 1938-1970: Opening the Courthouse Door B. Procedure, Litigation, and Litigation Reform: 1971-1988 1. Retrenchment by Rulemaking: A Brief Experiment 2. Changes in the Process of Making Procedural Law by Federal Rule: Lessons in Control Strategy C. Bad Habits Die Hard: 1989-2000 D. Procedure and Litigation Reform: 2001-2013 1. Rulemaking as Democratic Legislation: The Stickiness of the Status Quo 2. The New Undemocratic Legislation: Making Procedural Law the Old-Fashioned Way a. The Cases b. The Justices' Votes in Federal Rules Private Enforcement Cases CONCLUSION APPENDIX A. Models of Support for Litigation Reform Bills in Part II B. Models of Justice Votes in Supreme Court Opinions in Parts III and IV. INTRODUCTION

This Article is part of an ongoing study of the behavior of American political institutions, including courts, with respect to federal civil litigation. (1) We are particularly interested in litigation that involves statutory private enforcement regimes and other legal provisions that predictably affect incentives and opportunities for access to federal court to enforce federal rights. We believe that, in order to understand the modern history of federal law that affects private enforcement and access to court with respect to federal rights (collectively, "private enforcement"), it is necessary to view the salient events in their institutional context, recognizing that the institutions involved are competing to regulate social and economic life in the United States. As part of our inquiry into how interactions and competition among institutions have produced the contemporary state of federal civil litigation--and in recognition of the seventy-fifth anniversary of the Federal Rules of Civil Procedure--we consider ways in which the federal judiciary has affected private enforcement through control of procedure.

In Part I, we briefly discuss previously published evidence showing that, beginning in the late 1960s, when Democrats controlled Congress, there was a change toward greater reliance on private lawsuits to implement federal regulatory law. We highlight evidence that this transformation was rooted in conflict between Congress and the President over control of the bureaucracy, an alternative or supplementary venue to implement regulatory policy.

In Part II, we show that this program of regulation through private litigation soon met opposition primarily from the Republican Party. During President Reagan's first year in office, the administration pressed an ambitious litigation reform proposal that would have restricted attorneys' fees available to private parties seeking to enforce over one hundred federal statutes. Although this Reagan administration proposal failed, it signaled the emergence of a movement.

Using an original data set of litigation reform bills spanning from 1973 to 2010, we show that the ninety-seventh Congress (1981-1982) occasioned the emergence of litigation reform as a Republican issue in Congress. This campaign for litigation reform among congressional Republicans, like the Reagan proposal, largely failed. So long as Democrats controlled at least one chamber of Congress, Republicans' litigation reform proposals had little chance of success. Even when Republicans secured control of both chambers (and for a time concurrently held the presidency), their litigation reform successes were modest and clustered in a few discrete policy areas. Congress proved inhospitable institutional terrain for the Republicans' litigation reform agenda.

In Part III, we show that the Supreme Court had greater success in the enterprise of litigation reform than did Republicans in the political branches. With an original data set of Supreme Court decisions on private rights of action, standing, attorneys' fees, and arbitration, we map the Court's behavior on private enforcement issues from 1970 to 2013. The data tell a story of transformation: once highly supportive of private enforcement, the Supreme Court, increasingly influenced by ideology and increasingly conservative, has become antagonistic.

We argue that retrenchment through the judiciary achieved important success while failing in Congress because (1) as contrasted with the institutional fragmentation of the legislative process, the Court is governed by a more streamlined decisional process that allows bare majorities to prevail on contentious issues; (2) as contrasted with legislators' and Presidents' need to pay attention to democratic accountability through elections, federal judges are insulated from both; and (3) as contrasted with the powerful interest group mobilization that is triggered by the stark alternatives that major legislative reform proposals present, the case-by-case, less visible, more evolutionary process of legal change via court decision is far less likely to activate massive group mobilization seeking to block policy change.

In Part IV, we turn to the impact of procedure on federal civil litigation reform. This is a lawmaking arena in which the judiciary has long been ceded considerable freedom and power--exercised primarily through the promulgation of prospective, legislation-like rules of court. Starting in 1938 and at least until the 1970s, court rulemaking was a potent means to affect private enforcement, and prior to the 1980s the Federal Rules of Civil Procedure ("Federal Rules") were litigation-friendly, and hence private enforcement-friendly.

Federal court rulemaking started to engender serious controversy in the 1970s with the proposed Federal Rules of Evidence, and the controversy spread to the criminal and civil rules. We show that members of Congress, urged on by individuals and groups with different grievances (some of which had ideological and partisan valence), were concerned (1) that the rulemaking process was insufficiently inclusive and transparent; (2) that the rulemakers were paying inadequate attention to the Rules Enabling Act's prohibition against abridging, enlarging, or modifying substantive rights; and (3) that as a result, Congress was devoting too much time to rulemaking controversies. Chiefly through oversight hearings, these members of Congress pressured the federal judiciary to open up the process, and some of the process reforms, including a requirement of open meetings, were codified in 1988. They have made it more difficult to use the rulemaking process for major civil litigation reform.

Hence, just as the Supreme Court has been more successful in constricting private enforcement through decisions than Congress has been through legislation, so too, we argue, has the Court's power to make procedural law constraining private enforcement through decisions--specifically its power to "interpret" Federal Rules--been more consequential than its power to promulgate Federal Rules. Two of the most striking examples of this phenomenon, where the turn to decisional law seems clearly linked to the constrained state of rulemaking, are the Court's 2007 and 2009 pleading decisions.

Finally, just as ideology has had an increasing influence on the Justices' votes and the Court's decisions on private rights of action, attorneys' fees, standing, and arbitration, so has it had an increasing influence on cases involving the Federal Rules. Ideology played a comparatively modest (although statistically significant and substantively important) role in the Justices' voting behavior prior to 1994. Now, however, it appears to have a stronger influence on the Justices in Federal Rules cases--supposedly the heartland of procedure--than it has in cases presenting issues more obviously connected to substantive law. (2)

1. THE RISE OF THE LITIGATION STATE

   In 2013, private parties filed about 170,000 federal lawsuits to enforce federal statutes, spanning the waterfront of federal regulation. (3) Although Congress has relied on private litigation to enforce federal statutes since the rise of the federal regulatory state in the late 1880s, the frequency with which it has done so exploded in the late 1960s. From a rate of 3 lawsuits per 100,000 population in 1967--a rate that had been stable for a quarter century--it increased by about 1000% over the following three decades (reaching 13 by 1976, 21 by 1986, and 29 by 1996). (4) Despite much vitriolic rhetoric (typically focused on tort litigation), serious empirical scholars have not established that there was a "litigation explosion" across American court systems as a whole during this period. (5) There was, however, an unmistakable explosion of private lawsuits to enforce federal statutes. (6) We emphasize two things about this phenomenon: First, it has resulted substantially from self-conscious choices of statutory design by members of Congress seeking to mobilize private enforcers. Second, among the multiple factors that led to these choices, (7) Congress's growing distrust of bureaucracy under leadership that it regarded as increasingly hostile to its policy goals was particularly important.

   It is a legislative choice to rely on private litigation in statutory implementation. In Title VII of the Civil Rights Act of 1964, for example, Congress decided to make the prohibition against job discrimination enforceable in court by including an express private right of action. When Congress chooses to rely on private enforcement, it faces a series of additional statutory design choices that together have...